Preview:

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #042 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 1st day of July, 2011, are as follows: BY GUIDRY, J.: 2011-O -0418 IN RE: JUSTICE OF THE PEACE CHARLES FLAHERTY, DISTRICT 3, PARISH OF LASALLE, STATE OF LOUISIANA (Judiciary Commission of Louisiana) Accordingly, Justice of the Peace Flaherty is ordered to pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $200.00, no later than thirty days from the finality of this judgment.

7/1/2011 SUPREME COURT OF LOUISIANA No. 2011-O-0418 IN RE: JUSTICE OF THE PEACE CHARLES FLAHERTY, DISTRICT 3, PARISH OF LASALLE, STATE OF LOUISIANA ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA

GUIDRY, Justice This matter arises from a recommendation of the Judiciary Commission of Louisiana regarding Justice of the Peace Charles Flaherty's failure to comply with the financial disclosure requirements of Louisiana Supreme Court Rule XXXIX (also referred to as the "reporting rule"). The Judiciary Commission (hereinafter, "Commission") found Justice of the Peace Flaherty failed to file his 2009 personal financial disclosure statement timely, specifically 104 days after the deadline for filing, thereby subjecting him to a monetary penalty. The Commission deemed Justice of the Peace Flaherty to have acted willfully and knowingly in failing to comply with the financial disclosure rule. Thus, the Commission recommended that Justice of the Peace Flaherty be ordered to pay a penalty of $5,200.00 and to reimburse the Commission for costs in the amount of $360.50. For the reasons set forth below, we find Justice of the Peace Flaherty failed to comply with the financial disclosure rule, thereby subjecting him to a civil monetary penalty. We further find the record evidence supports the hearing officer's determination that Justice of the Peace Flaherty's failure to comply with the reporting rule was not willful and knowing. After considering the facts, circumstances, and applicable law, Justice of the Peace Flaherty is ordered to pay a penalty in the amount of $200.00.

1

FACTS and PROCEDURAL HISTORY Supreme Court Rule XXXIX, recently promulgated by this court, requires for the first time the filing of annual personal financial disclosure statements by judges and justices of the peace. See In re: Sanborn, 10-2051, p. 2 (La. 11/30/10), 50 So.3d 1279. Pursuant to Section 3 of the rule, all elected justices of the peace must file a financial statement by May fifteenth of each year, using a form prescribed by the Judicial Administrator's Office ("JAO") for that purpose. Rule XXXIX, Sections 3(A) and (B). The rule became effective with regard to justices of the peace on January 1, 2010. We have discussed this rule and its requirements pertaining to justices of the peace in a companion case decided this date. See In re: Hoffman, 11-0417 (La. 07/01/1), __ So.3d __. The instant case is the second of three cases decided this date involving a justice of the peace who has been charged with failing to file timely the personal financial disclosure statement required by Rule XXXIX. See In re: Hoffman, supra; In re: Thomas, 11-0572 (La. 07/01/11), __ So.3d __. Justice of the Peace Flaherty (hereinafter, "Respondent"), who is not an attorney, was an elected justice of the peace for LaSalle Parish, District 3, during the entire calendar year of 2009, and he is currently in his third term as a justice of the peace. In 2010, the JAO made a presentation at the Attorney General's training conference for justices of the peace regarding the May 15, 2010 deadline for filing the personal financial disclosure statement for 2009 (hereinafter referred to as the "2009 statement"). Respondent was in attendance at this session; however, he did not file his 2009 statement by May 15, 2010. A JAO staff attorney attempted to contact Respondent to inquire about his non-compliance, but he could not be reached by telephone. Accordingly, on June 16, 2010, the JAO sent Respondent a notice of delinquency by certified mail, which Respondent received on June 25,
2

2010. The notice of delinquency advised Respondent that the 2009 statement "must be filed no later than fourteen (14) business days after receipt of this notice of delinquency, or by July 8, 2010." The notice of delinquency also stated that failure to file the 2009 statement by the deadline "shall result in the imposition of penalties as provided in Section 4 of Rule XXXIX." Respondent did not submit a written response to the notice of delinquency by July 8, 2010. On July 23, 2010, the JAO referred Respondent's matter to the Commission, which issued a Formal Charge on September 27, 2010, based upon his failure to timely file the 2009 statement. This matter was set for a hearing before a hearing officer on November 4, 2010. Respondent appeared and testified at the hearing, although he had not filed an answer to the Formal Charge. A JAO staff attorney, also testified. At the conclusion of the November 4, 2010 hearing, Respondent hand-delivered his 2009 statement to the staff attorney, having completed it during the course of the hearing. In his testimony before the hearing officer, Respondent admitted he knew that the personal financial disclosure statement for justices of the peace had "to be filled out and mailed in on time." However, he clearly did not understand the difference between that form and the legislative auditor's financial statement (hereinafter referred to as the "auditor's form") which justices of the peace are required to file pursuant to La. Rev. Stat. 24:513.1 Indeed, while attending the Attorney General's training conference for justices of the peace in March 2010,

1

La. Rev. Stat. 24:513(J)(1)(cc) provides in pertinent part as follows: . . . [A] justice of the peace . . . must file a certification with the legislative auditor indicating the amount of funds related to his official duties that he received for the fiscal year. Also he shall annually file with the legislative auditor sworn financial statements. . . . 3

Respondent completed a personal financial disclosure statement for justices of the peace and turned it in to the "folks down there, apparently the wrong people [presumably referring to representatives of the Attorney General's office]. I think I was supposed to mail it in . . . to the Secretary of State's office." Respondent then completed an auditor's form on October 20, 2010, and mailed a copy of it to the JAO, believing this was the same requirement as the personal financial disclosure statement for justices of the peace.2 Despite the best efforts of the hearing officer to explain that the forms are not the same, by the end of the hearing, it was evident that Respondent still did not understand the difference between them.3 However, Respondent appeared at oral argument of his case before this court, and he assured the court he now understands there are two financial disclosure forms and they are

Unfortunately, this mailing was sent in error to the court's former address at 301 Loyola Avenue. It was returned to Respondent by the Post Office marked "return to sender, not deliverable as addressed, unable to forward." The hearing officer observed that Respondent had received correspondence to which he did not respond, a fact that could lead one to conclude he had "just ignored them purposely." When the hearing officer gave Respondent "the opportunity to tell me why that's not true," the following exchange occurred: JP Flaherty: No, sir, I didn't willfully . . . It's just negligence on my part. I should have filled it out when I first got the correspondence from Ms. Elliott at the Legislative Auditor's Office.
3

2

The hearing officer: Let me point out something to you . . . so this never happens to you again. They're two different things we're talking about. And the only one that concerns us here today is a financial disclosure statement that's required by the Louisiana Supreme Court and is administered by the Judicial Administrator who is Dr. Collins. The Legislative Auditor's report is something

Download 11O0418.opn.pdf

Louisiana Law