Nearly a year after a judge ordered him to pay, and just three days before parishwide elections, Livingston Parish President Layton Ricks and his attorney appeared before the 1st Circuit Court of Appeal on Wednesday to argue that a council resolution cannot bind a parish president to act.
The case stems from a dispute between Ricks and the Parish Council over whether the parish should pay the legal fees of two council members sued personally for comments they made to a reporter about Ricks’ former employer, Alvin Fairburn & Associates, and his current executive assistant, Mary Kistler.
Fairburn and Kistler sued council members Marshall Harris and Cindy Wale Franz after they appeared in a March 2013 WBRZ-TV report that claimed Kistler, as council clerk, had changed the wording of a resolution to allow Fairburn to perform more road engineering work than the council had authorized.
The Parish Council twice resolved for Ricks to pay Harris and Wale Franz’s attorney fees in defending the lawsuits. When Ricks repeatedly refused, the council sued him in September 2014.
On Oct. 30, Judge Brenda Ricks, no relation, of the 21st Judicial District Court, granted the council’s request for a writ of mandamus — an order compelling a public official to perform a duty he is legally required to perform.
Judge Ricks said the parish president could not pick and choose which resolutions he would follow.
The parish president appealed.
Judges John Michael Guidry, Guy Holdridge and Wayne Ray Chutz, of the 1st Circuit, peppered attorneys on both sides Wednesday with questions about whether a resolution is necessarily binding, other ways each side might have tried to resolve the dispute, and whether Livingston Parish politics had soured so much as to require legal action to make the government function.
The panel did not issue a ruling Wednesday.
Layton Ricks’ attorney, Brian Abels, argued that Ricks was not bound to comply with a resolution that he believed ran afoul of the parish’s Home Rule Charter. Abels said the parish must first have a contract with Harris and Wale Franz’s attorney and the council must appropriate the funds before any payment would be legal.
Requiring the president to follow every resolution, no matter the circumstances, would make the president “a puppet of the council,” Abels said.
“But is it the parish president’s role, as the executive branch, to second guess the legislative branch’s prerogative to spend the money?” Guidry asked.
Guidry pressed Abels to cite a clause in the charter that allows the parish president to disregard a resolution.
“The question becomes whether the parish president can unilaterally decide not to follow it,” Guidry said.
If the president can simply direct his administration not to comply with a resolution he dislikes, then the parish is already in a constitutional crisis, he said. “Is that the point we’ve gotten to in Livingston Parish?”
Harold Adkins, the council’s attorney, said the president has no authority to veto a resolution. But pressed further by Holdridge, Adkins stopped short of saying the president must obey a resolution to pay a councilman’s gambling debt or sign a check for funds the president knows the parish does not have.
Adkins said “maybe” the president would have discretion in those cases, “but that’s not what we’re talking about here.”
An illegal resolution would not create a duty for the parish president to act, Adkins said.
Abels said if the president has discretion to determine which resolutions are legal and must be followed, then the council’s request for a writ of mandamus was inappropriate.
Holdridge asked if mandamus is not the right legal action, what is?
“There has to be some procedure,” Holdridge said. “The parish president, in and of himself, cannot interpret the law.”
Holdridge suggested the parish president could have sought an injunction, preventing him from having to pay the two council members’ legal bills. And either side could have filed for a declaratory judgment, where a judge would look at the underlying facts of the case and determine what the rights of each party are.
“A lot of actions could have been taken besides mandamus,” which the law describes as an “extraordinary remedy,” Holdridge said.
Follow Heidi R. Kinchen on Twitter, @HeidiRKinchen, and call her at (225) 336-6981.