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CITY OF MARLBOROUGH vs. CYBULSKI, OHNEMUS & ASSOCIATES, INC. (and a companion case [Note 1]).
TWO CIVIL ACTIONS commenced in the Superior Court on September 30, 1974, and October 24, 1974, respectively.
Robert B. Stimpson for Cybulski, Ohnemus & Associates, Inc.
David P. Gadbois, City Solicitor (Allan Robinson with him) for the city of Marlborough.
QUIRICO, J. These are two cases brought in the Superior Court under G. L. c. 251 (Uniform Arbitration Act for Commercial Disputes), one an application by Cybulski, Ohnemus & Associates, Inc., an architectural firm (architect), to confirm the award of an arbitrator, and the other an application by the city of Marlborough (city) to vacate the award. The architect's application to confirm was denied, and the city's application to vacate was allowed. The architect has appealed in both cases. We affirm.
Subsequent to entering into the contract, the architect commenced the performance of its obligations thereunder, in the course of which it submitted bills in an amount which equalled and then exceeded the sum of $5,000, which had been appropriated by the city for the project in question. The architect has conceded that it received payment in the amount of $5,000 under the contract. It is apparently undisputed, however, that the architect received no payment for its bills in so far as they exceeded this amount. Despite the nonpayment by the city of the excess amount, the architect continued for some time to render performance under the contract. Thereafter, a dispute arose out of the refusal of the city to make further payments, and the matter was submitted to arbitration pursuant to the provisions of the arbitration clause in the contract. Hearings were conducted, and the arbitrators made an award of $17,800 to be paid by the city to the architect, with the fees and expenses of arbitration to be borne equally by the parties.
The issue thus presented is whether in the circumstances of these cases the city may be held liable on its contract with the architect for an arbitration award which is in excess of the amount appropriated by the city for payment of the obligations incurred under such contract. We hold that it may not.
financed by municipal revenue, or in whole or in part by taxation, of any city or town, except Boston, shall incur a liability in excess of the appropriation made for the use of such department . . . [with an exception for certain emergency situations which is not material to the present cases]." It is well settled that "[p]ersons dealing with a municipality must take notice of limitations of this kind upon the contracting power of the municipality and are bound by them and cannot recover upon contracts attempted to be made in violation of them." Duff v. Southbridge, 325 Mass. 224, 228 (1950), quoting from Adalian Bros. v. Boston, 323 Mass. 629, 631 (1949), and cases cited. Arthur R. Murphy, AIA, & Associates, Inc. v. Brockton, 364 Mass. 377, 380-381 (1973). McHenry v. Lawrence, 295 Mass. 119, 122 (1936). Dyer v. Boston, 272 Mass. 265, 273-274 (1930). Moreover, we have noted that the purpose and policy of G. L. c. 44, Section 31, is "to set rigid barriers against expenditures in excess of appropriations." McCarthy v. Malden, 303 Mass. 563, 565 (1939). Arthur R. Murphy, AIA, & Associates, Inc. v. Brockton, 364 Mass. at 380.
architect was submitted to arbitration does not permit us to ignore that statute's prohibition against municipal expenditures in excess of appropriations or to hold it inapplicable to the present cases. We hold that to the extent the contract between the city and the architect purports to subject the city to liability in excess of the amount appropriated for its payment the contract is in violation of G. L. c. 44, Section 31, and therefore not binding on the city. McHenry v. Lawrence, 295 Mass. 119, 122 (1936). To hold otherwise would substantially restrict, and would invite circumvention of, a statute which we heretofore have applied with utmost rigidity and few exceptions. As we recently said in Arthur R. Murphy, AIA, & Associates, Inc. v. Brockton, 364 Mass. 377, 380 (1973) "Section 31 [of G. L. c. 44] is designed to have the salutary effect of preventing the unlawful expenditure of public funds for public contracts and we would be loath to expand any exception to its operation." The limitations of the statute apply to this case and neither the agreement to arbitrate nor the award of the arbitrators can produce a different result.
The judgments entered in the Superior Court are affirmed.
[Note 1] Cybulski, Ohnemus & Associates, Inc. vs. City of Marlborough.
"ARBITRATION 11.1 All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law.
"11.2 Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim dispute or other matter in question would be barred by the applicable statute of limitations.
"11.3 The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof."

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Epple, Anne Orth. A Field Guide to the Plants of Arizona. Photo available. Guilford. Falcon 1995. 347 pps. Octavo. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Epstein, Edward Jay. Legend. The Secret World of Lee Harvey Oswald. Photo available. New York. McGraw-Hill. 1978. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Epstein, Edward Jay. Legend. The Secret World of Lee Harvey Oswald. Photo available. New York. McGraw-Hill. 1978. 382 pps. Octavo. Hard cover. Reprint. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Epstein, Edward Jay. The Assassination Chronicles. Inquest, Counterpoint, and Legend. Photo available. New York. Carroll & Graf. 1992. 702 pps. Octavo. Soft cover. First edition thus. Illustrated. Important reference work. Fine copy.
Epting, Chris. James Dean Died Here. The Locations of America's Pop Culture Landmarks. Photo available. Santa Monica. Santa Monica Press. 2003. 312 pps. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Epton, Nina. Josephine. The Empress and Her Children. Photo available. New York. W.W. Norton. 1975. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Erbstosser, Martin. Heretics in the Middle Ages. Photo available. Leipzig. Ediiton Leipzig. 1984. 4to. Hardcover. First edition. Illustrated in black, white and color. Fine copy in near fine (slightly yellowed, small closed tear at edge) dust jacket (in mylar).
Erdoes, Richard. Crying for a Dream. The World Through Native American Eyes. Photo available. Santa Fe. Bear & Company. 1989. 4to. Soft cover. Illustrated in black, white and color. Fine copy.
Erdoes, Richard. Tales from the American Frontier. Photo available. New York. Pantheon. 1991. Octavo. Hard cover. First edition. Illustrated by the author. Fine copy in fine dust jacket (in mylar).
Erickson, Carolly. To the Scaffold. The Life of Marie Antoinette. Photo available. New York. William Morrow & Co. 1991. Octavo. Hardcover. First edition. Fine copy in fine dust jacket (in mylar).
Erickson, Paul. Reagan Speaks. The Making of an American Myth. Photo available. New York. New York University Press. 1985. Octavo. Hard cover. First edition. Fine copy in fine dust jacket (in mylar).
Erler, Catriona Tudor. Pool Scaping. Gardening and Landscaping Around Your Swimming Pool and Spa. Poolscaping. Photo available. North Adams. Storey. 2003. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Erman, Adolf. Life in Ancient Egypt. Photo available. New York. Dover. 1971 . Octavo. Soft cover. First edition thus. Illustrated. Near fine copy (very light shelf wear).
Erman, Adolf. Life in Ancient Egypt. Photo available. New York. Dover. 1971 . 570 pps. + ads. Octavo. Soft cover. First edition thus. Illustrated. Important reference work. Fine copy.
Eros, Dennis (ed). American Indian Artifact Price Guide. Volume 1, Number 2. Jewelry, Beadwork, Blankets-Rugs, Pottery, Artifacts, Baskets. Photo available. Watsonville. Self published. 1976. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Eros, Dennis (ed). American Indian Artifact Price Guide. Volume 2, Number 1. Jewelry, Beadwork, Blankets-Rugs, Pottery, Artifacts, Baskets. Photo available. Watsonville. Self published. 1975. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Eros, Dennis. American Indian Art Auction. Photo available. Santa Fe. Dennis Eros. August 17, 1992. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Ervin, Janet Halliday. The White House Cookbook. Photo available. Chicago. Follett Publishing. 1964. 4to. Decorated hard cover. First edition. Illustrated. Fine copy.

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Before I got around to putting up a blog entry on the ethics mess in Louisiana, it took a turn for the worse. What started as two legislators protecting the jobs, respectively, of their father and their brother, has turned into a full-fledged constitutional battle that could undermine the concept of recusal for conflicts of interest nationwide.
As it is now, ethics codes usually require that legislators, state and municipal, refrain from participating or voting in matters where they have a conflict of interest. The two Louisiana state representatives, Jeff Arnold (D-New Orleans) and Alex Heaton (R-New Orleans), are seeking an injunction against the Louisiana Board of Ethics to stop its investigation of and to prevent a hearing on their actions.
According to an article in the Baton Rouge Advocate (no longer available without charge), two Louisiana state representatives strenuously argued against a bill reducing the number of New Orleans assessors' offices from seven to one, although one's father and the other's brother were assessors who would lose their jobs. The representatives did file statements, as required by law, stating why they should be able to vote on the legislation and, therefore, were by law allowed to vote on it.
'We followed the letter of the law on the voting process,' one of them argued. 'As far as participating in the discussion, we have the right of freedom of speech. ... It's absolutely ridiculous. They are saying you can vote, but you cannot participate.' It is ridiculous. When you have a conflict, you shouldn't be able to participate or vote, either.
Or, from another point of view, you shouldn't be required to participate or vote. An ethical legislator with conflicting obligations should want to have a good excuse not to vote. Why? Because no one should be put in the position, for example, of voting about one's father's livelihood. Why is it always assumed that the only problem is voting one's own interests ' voting to protect your father's interest ' not voting about them? Why is it always assumed that officials put their self-interest ahead of the public interest? Just think how it would be if the representative had been conscientious and felt it was in the best interests of his constituents, considering Louisiana's poor financial situation, to cancel his father's job! No one should have to make this choice. It shows how powerful crude self-interest is that this side (the public-interested side) of having conflicts, and providing for recusal, is so rarely even mentioned. There is no better argument for ethics programs than the one-sided view of ethics most people have.
If it is determined by a court that its members' speech cannot constitutionally be limited on account of conflicts of interest, then it would not be able to impose this limitation on municipal officials, as it has, or on state officials and employees. If the two legislators win in court, the whole mechanism collapses. Since a vote can also be considered speech, legislators at all levels could not be prevented from voting either.
Here is the bottom line of what the legislators are asking: That the investigation of lawmakers for having participated in a matter where they admittedly have conflicts of interest, by citizens whose job it is to oversee lawmakers' ethics, should be declared unconstitutional under a provision designed to prevent citizens from having their speech limited by lawmakers. In short, lawmakers should be protected from citizens limiting their speech, the opposite of the constitutional protection afforded by the free speech provision.
Let's look at the legislators' arguments, to see if they're better than how I portrayed them. Leading the fight against recusal is Senator Cleo Fields (D-Baton Rouge), who calls the Board of Ethics' action 'an attack on the entire Legislature and on the system of democracy.' He does not believe the Board of Ethics should oversee lawmakers at all (it apparently didn't do this until 1997, and the legislature still selects the Board of Ethics' members, albeit, in the case of the Senate, from a list of candidates recommended by presidents of the state's private colleges), and he is proposing to set up a legislative commission to allow the legislature to regulate itself.
'This body ought to regulate itself. Congress regulates itself,' said Fields, a former Congressman, 'and they do a pretty good job of it.' Yeah, and all three levels of government did a fine job responding to Hurricane Katrina. The leader of the fight against the Board of Ethics does not seem interested in making credible arguments.
Fields also argues that since the executive and judicial branches govern themselves, the legislature should govern itself as well. The Board of Ethics is not much more executive than legislative: all members are independently selected by university presidents, with 7 of them being appointed by the governor, and 4 by the legislature.
In any event, self-regulation is wrong. It doesn't work in Congress, nor does it work well for executive or judicial branches, unless the oversight board is independent. Ethics boards across the country have run into budget, personnel, enforcement, and other problems when they are not sufficiently independent. Fields's argument is one of seeking the lowest common denominator, the most ineffective solution both in terms of enforcement and in terms of gaining the public's trust, without which democracy -- which he seems to care a great deal about protecting -- cannot function.
According to an article in the Times-Picayune, House and Senate leaders are supporting the lawsuit and, presumably, Fields's change in the law, even though the Board of Ethics voted unanimously to investigate the conduct of the two legislators.
It doesn't help that, according to an Associated Press article online, the chair of the Senate and Governmental Affairs Committee has been fined twice for violating the state ethics code (recently, the chair was fined $5,000 for failure to follow a law aimed at disclosing elected officials' dealings with government agencies; about ten years ago, he was fined $7,500 for profiting from nonprofit groups he helped create as a legislator). And it doesn't help that Arnold, one of the two plaintiffs in the suit against the Board of Ethics, sits on the House and Governmental Affairs Committee.
On March 17, the Public Affairs Research Council of Louisiana released its Ethics Reform Agenda for 2007, calling for tighter ethics provisions for state and municipal officials. And there is a new organization in town seeking political reform, Blueprint Louisiana, discussed in an article online. It appears that the more Louisiana citizens ask for reform, the harder the ball legislators want to play.
This would be another comical example of the oddest state in the Union (in terms of its laws) doing what it does best, if these legislators were not going to court and thereby putting in jeopardy ethics programs across Louisiana and across the nation. And they're doing this with respect to a situation that even the participants recognize is a conflict of interest, in fact, a situation where any ethically thoughtful official would want to be prevented from having to take a position: the jobs of immediate family members.
Louisiana political leaders have declared war on government ethics. The ethics community needs to fight back, and to use this as an educational opportunity. Here is some relevant contact information. I'll be sending out this blog entry. Let them know how you feel, as well.
Rep. Arnold and I have had a good dialogue about issues involved in his suit. You can find our dialogue in the comments section to this blog entry (start at the bottom or just click here).
My response to you is not about any pending legislation, rather it is about the constitutional rights of free speech and the "speech and debate" clause located in both the United States and Louisiana constitution. For you to state that a petition filed in a Louisiana court will have devastating affects across this country is tantamount to yelling "FIRE" when there is none. It may further your cause or goals but it does not make it the truth. Your attack on this petition is a direct attack on the democracy this country was built on.
The ethics board complaint specifically states that Rep. Heaton and I participated in a legislative debate. The petition only addresses the question: Does the ethics board have the authority to punish a duly elected legislator from participating in the legislative process? My petition does not take any authority away from the board, it questions the authority and position the board has taken. This petition in no way stops the Ethics Boards investigation unless the Judge rules that the Louisiana Constitution under Article 3 Section 8 allows legislators to freely participate in speech and debate during committee and floor discussions.
Over and over again, federal courts have appropriately held that the "Speech and Debate" clause does not shield legislators from having to answer for criminal acts. Instead, the Courts have determined the language protected only that relatively narrow category of action directly related to and furthering their official and defined responsibilities as legislators. Our founding fathers made it clear that a general legislative constitutional safeguard, which is embodied in article I, section 6, clause 1 of the U. S. Constitution, provides that Senators and Representatives "shall not be questioned" for "any Speech or Debate in either House": also in the case of United States V. Brewster, the Supreme Court made it clear that "It is beyond doubt that the Speech and Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process."
Deterring a legislator from advancing a point of view, or an opposing opinion is precisely the evil the speech and debate clause intends to prevent. I find it interesting that a website, which operates under freedom of the press and free speech, now supports the suppression of that very same freedom. Even Mr. James Gill (Times Picayune editorial writer and political critic) agrees that the "Ethics board takes up the wrong cause. Mr. Gill read the section of the Louisiana Constitution and says, "Legislators' privileges are spelled out in the Constitution, which says, No member shall be questioned elsewhere for any speech in either house. The (Ethics) board is wasting our time and our money." Mr. Gill also stated that: "The law allowed them to vote on the bill provided they filed statements attesting that they could play fair", we followed the law and filed a disclosure statement with the House of Representatives and the Ethics Board, that is not what the complaint or our petition are about.
If you are opposed to our Louisiana Constitutional law to let lawmakers freely participate in speech and debate, then have the strength to trumpet that stance. Merely ignoring the truth to bolster your argument is intellectual laziness at best and dishonesty at worst.
I will respond one at a time to the points Rep. Arnold made in his response to my blog entry concerning his suit against the Louisiana Board of Ethics.
In his first paragraph, he states that my concern about the devastating effect of his suit is tantamount to yelling "Fire!" when there is none. Yet Rep. Arnold himself says in his third paragraph that there is a safeguard in the U.S. Constitution (Art. 1, Sect. 6) providing that legislators may not be questioned for any speech they make in their legislature. If this safeguard were to be extended to cover participation in debate where the legislator has a conflict of interest, and the court's decision were to be appealed to the Supreme Court, it could affect ethics laws and boards across the nation. And if the decision were made on First Amendment free speech grounds, which is what I focused on in my blog entry, it could affect ethics laws and boards at all levels of government.
My attack on Rep. Arnold's suit is a "direct attack on the democracy this country was built on" only to the extent that our democracy is dependent on legislators participating in debates where they have a conflict of interest. His suit is a direct attack on government ethics, which generally requires recusal from participation and voting when there is a conflict.
I have done further research and found that, although this is the case generally for local government, state legislators in only twelve states (plus three others partially, and three others voluntarily) have applied the withdrawal requirement to themselves. I was wrong to say in my blog entry that state legislators follow the norm. But according to Rep. Arnold's position, fifteen states have directly attacked our nation's democracy.
Rep. Arnold's second paragraph is disingenuous. If a court finds that legislators may participate in debates when they have a conflict, then there is nothing for the Board of Ethics to investigate.
"It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts. [Rep. Arnold's quotation stops here.] So expressed, the privilege is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members."
The majority decision makes it clear what the purpose of the Speech or Debate Clause is: "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators. ... Our speech or debate privilege was designed to preserve legislative independence, not supremacy. ... [the authors of the Constitution] wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process."
Conflict of interest laws, like bribery laws, also try to preserve the integrity of the legislative process, by insisting that legislators act in the public interest rather than in their personal interest. And they insure the independence of legislators not "for the personal or private benefit" of legislators, as free speech rights do, but to protect these rights from being limited as representatives of the people. When a representative with a conflict of interest speaks, it appears that he or she is not acting as a representative of the people, but for his or her personal or private benefit. That is why, I believe, the Speech or Debate Clause does not apply to Rep. Arnold's situation. It is not the content of the legislator's speech that ethics laws are concerned with (and which the Speech or Debate Clause is intended to protect from interference by other branches), but the fact of speaking at all and, thereby, undermining public trust in government, which is essential to democracy.
As for James Gill's column, I disagree with his reading of the state constitution's speech or debate clause. However, I am no more an expert on it than he is (although I know a lot more now that I was spurred on to do research), which is one reason I did not deal with it in my blog entry. I had two other reasons for not dealing with this clause. One, it did not appear central to the arguments attributed to Rep. Arnold and his allies, which focused on free speech (now that I have read further articles, including Mr. Gill's, which did not come up in my searches, I realize that the Speech or Debate Clause issue is more central than I had realized). And two, I was more concerned with the free speech argument because, as I said in my blog entry, it would extend the decision to municipal legislators, my principal area of concern and the only reason I got involved in this issue.
Enough for what Rep. Arnold says in his response. What is equally important is what he does not say. Nowhere does Rep. Arnold mention "conflict of interest" or "withdrawal" or "recusal" or "obligations." Nowhere does he acknowledge any need to balance the interests of the public in legislators speaking in the public interest rather than in their own interest versus legislators' rights of free speech or not being questioned for their speech.
No right comes to a government official without a corresponding obligation. But Rep. Arnold ignores his obligations. He is concerned only about his rights. I believe that a legislator's obligations are far more important than his rights. Rights are primarily for citizens, to protect them from government officials. The need for legislators to be protected from the executive branch, as in the Speech or Debate Clause, is important, but hardly overriding in instances of misconduct. And it is not clear how much a part of the executive branch the Board of Ethics is, since its members come from a list independently put together by college presidents, and the legislature has a great deal of control over it (as it is showing by it plans to take away the Board of Ethics' jurisdiction over legislators).
A court may find Rep. Arnold's interpretation of the constitution correct, but he is wrong to ignore the conflicts and the obligations that come with being a government official. If he had paid attention to his ethical obligations, the Board of Ethics would not have interfered with his rights. He was completely in control of the situation, and he chose his personal interest over the public interest in having legislators with conflicts recuse themselves. Law is important, but to talk only about legal rights and not at all about ethical obligations is to add insult to injury.
My problem with your response is that you do not address the initial charge of conflict of interest. You only address part of the story, not the whole story. If we are not successful with our petition then I still intend to fight the charges before the Louisiana Ethics Board. The issue at hand is that I participated in a legislative discussion in which the results of that issue would be one of a fiscal impact on an immediate family member. The charge is not that I voted on the issue it is that I participated in the discussion. It was made clear to all parties that my father was indeed a tax assessor from the City of New Orleans.
Dad would have to run for the 1 (one) Assessor and lose in 2010.
Now that is a lot of if's, the legislative vote itself only put the measure on the ballot, it still had to go thru all steps in order to impact my father. So the question is, did we violate "ethics" by asking questions in a public meeting. I don't think so, it the legislative instrument had a direct impact on my father such as a pay raise or elimination of the office with out a vote of the people (entire state), then I would not be so staunch in my stance.
It is easy for you to sit up in your office on the east coast and judge and dissect my response to your blog, but If I can appear before a public meeting as a citizen and simply ask questions, then why can I not do the same as an elected representative? That is the attack of democracy that I speak of, I am not promoting the voting on direct conflicts of interest. I believe in transparency in Government on all fronts, and everyone involved in this process understood that I was the most knowledgeable person on this subject. Why would you support silencing an opposing opinion?
You are right. I apologize for assuming that, because you declared a conflict, that you actually had a conflict. It is possible that the Board of Ethics would find, after an investigation, that the conflict you had was not direct enough to require withdrawal from participation. I did not address this part of the story because it is not relevant to the law suit, from what I understand about it. I believe that there is a conflict, but I would have no problem with the Board of Ethics deciding your conflict was or was not sufficient to require withdrawal. I only believe that it should have the opportunity to consider it. Whatever decision they arrive at will provide guidance for other legislators, both state and local, in the future.
The difference between a citizen speaking in favor of a personal interest at a public meeting, and a legislator speaking in favor of a personal interest in his legislature is that citizens are expected to speak in favor of personal interests and legislators are expected to speak in favor of the public interest. That is the essence of conflict of interest rules.
Democracy requires that a representative represents his or her constituents. For a representative, this trumps the individual's right to speak for his or her personal interests. Democracy also requires that it not appear that government officials favor their personal and family interests, because this undermines trust in government and leads people not to participate in government.
The problem is that Louisiana is about to convene its 2007 session. There is a question among legislators as to what they can and cannot say or do during this session. We hope to have a quick judgment to our petition. If you wish to study Louisiana case law, I have provided plenty for you to digest.
I filed this suit for a single purpose. This suit is not a contest of facts. This suit is not a contest over the interpretation of a statute. And most certainly, this suit is not an attempt to carve out a blanket exception for legislators to the Code of Ethics. The sole purpose of this suit is to have this Court decide whether the Legislative Speech Privilege contained in Art. III, 8 bars the Defendant Board of Ethics from investigating, prosecuting, adjudicating, and punishing me for participation in the legislative process during their service in the Legislature when acting within the sphere of legislative activity protected by that constitutional provision.
I asked this Court to declare that the Legislative Speech Privilege contained in Art. III, 8 of the Louisiana constitution is an absolute bar against the Board of Ethics pursuing the course it has taken against two elected and serving members of the Louisiana House of Representatives. The Board of Ethics admits in its 'Memorandum in Support of Declinatory and Dilatory Exceptions' that it has voted to conduct an investigation of us, that its staff has conducted such an investigation, and that the Board of Ethics has voted to refer the results of that investigation to a public hearing before the Board of Ethics. There can be no doubt that the Board gives no credence whatsoever to the language of Art. III, 8, which provides, in part: 'No member shall be questioned elsewhere for any speech in either house.' I contend that Art. III, 8 is an absolute bar against the Board of Ethics pursuing its current course against me. Herein lies the contest: the Board of Ethics states it possesses the legal authority to pursue its course against me, and I claim the very words of Art. III, 8 bar the Board of Ethics from pursuing that course.
The judicial power of the state is constitutionally vested in the courts. La. Const. Art. 5 1. The Commission is not a court but is an administrative agency in the executive branch of state government. See, Bagert v. Bd. of Ethics for Elected Off., 594 So.2d 922 (La.App. 1 Cir.1992). An administrative agency does not have the authority to determine the constitutionality of statutes. See Church Point Wholesale Beverage v. Tarver, 614 So.2d 697, 702 n. 8 (La.1993), and Red River Coors, Inc. v. McNamara, 577 So.2d 187 (La.App. 1 Cir.), writ denied, 582 So.2d 1306 (La.1991) (Board of Tax Appeals does not have authority to decide the constitutionality of statutes); Bell v. Dept. of Health and Human Resources, 483 So.2d 945, 947 n. 1 (La.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986), and Appeal of Brisset, 436 So.2d 654 (La.App. 1 Cir.), writ denied, 441 So.2d 749 (La.1983) (Civil Service Commission does not have the authority to decide the constitutionality of statutes). Thus, the district court, and not the Commission, had jurisdiction to rule on the constitutionality of the statutes. Midboe, 646 So.2d at 355. The judicial branch of our government is the sole arbiter of the meaning and applicability of provisions of our constitution.
Seeking a judgment from this Court, a part of the judicial branch, is the only avenue open to me for an interpretation of Art. III, 8. Contrary to the Board of Ethics' assertions, this matter rests solely and completely within the jurisdiction of this Court. This suit presents only a question of constitutional interpretation: does the Legislative Speech Privilege in Art. III, 8 of the Louisiana Constitution bar the Board of Ethics from investigating, prosecuting, adjudicating, and punishing Legislators based on their participation in the legislative process during their service in the Legislature when acting within the sphere of legislative activity protected by that constitutional provision?

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Your support makes it possible for us to win these fights. Please donate and together we can keep building the movement to abolish mass incarceration.
As a movement lawyering organization, our primary method for winning the abolition of mass incarceration is to amplify the voices of activists inside and outside the prison walls. We understand that social change is a political process and the most effective way to achieve deep and sustained improvements is through the organization and mobilization of communities. With this in mind, we have successfully fought to protect the rights of prisoners to engage in political speech and self-education, and we have successfully helped to push back on the overuse of solitary confinement (which is often used as retaliation for advocacy from within the prisons). We have also expanded our work to defend movement activists who are not incarcerated, such as Saundra Cole and George Ciccariello-Maher, against harassment from police and white supremacist individuals and hate groups.
With your support, we increased our efforts to ban Death By Incarceration (DBI), also known as life without parole, abolish long-term solitary confinement, and force prison administrators to provide curative treatment for prisoners with hepatitis C. We hired three new staff members focused on these issues: Jamelia Morgan, Lauren Johnson and Quinn Cozzens (pictured above and right). We co-founded the western Pennsylvania chapter of the Coalition to Abolish Death By Incarceration (CADBI West), and we increased collaboration with our friends at the Amistad Law Project.
The Abolitionist Law Center’s work to abolish solitary confinement resulted in some important victories over the last year. At the beginning of this year Arthur Cetewayo Johnson walked out of his solitary confinement cell and into the general prison population following 36 years in solitary, after we won a preliminary injunction on his behalf (Johnson v. Wetzel). One of our lawsuits (Seitz v. Allegheny County) successfully stopped the Allegheny County Jail from putting pregnant women in solitary confinement. And we obtained the first circuit court holding in the country recognizing that solitary confinement of persons with serious mental illness states a claim under the Eighth Amendment (Palakovic v. Wetzel).
With the help of our new staff attorney, Jamelia Morgan, we are currently litigating three (soon to be four) cases challenging long-term solitary confinement on Pennsylvania’s Death Row, which is being imposed on prisoners even though they have had their death sentences overturned. PA DOC contends that the mere possibility that these men may be re-sentenced to death after a new trial or sentencing hearing requires them to be held in solitary confinement. This is happening despite the Third Circuit Court of Appeals issuing a landmark decision earlier this year, which held that continued use of solitary confinement on Death Row of individuals who have obtained relief on their death sentence violated the due process clause of the Fourteenth Amendment to the U.S. Constitution. Williams v. Secretary, Pennsylvania Department of Corrections, 848 F.3d 459 (3d Cir. 2017).
The Abolitionist Law Center is working actively to roll back race- and class-based mass incarceration through our ongoing decarceration efforts. As part of these effort, we’ve also been working to get people released from prison, including three clients who were 18 years old when the crimes they were convicted of occurred. All three of them were sentenced to Death By Incarceration (DBI), also known as life without parole, without any consideration given to mitigating circumstances (such as youth, intellectual disability, or lack of intent). Their youth raises the same issues of diminished culpability that the Supreme Court relied on in deciding Miller v. Alabama, which effectively ended DBI sentences for juveniles. State prosecutors and courts are trying to limit the holding to people who were under 18 years old, despite the fact that the same developmental science that the Supreme Court relied on in Miller shows that brain development continues well past the 18th birthday. Our cases seek to win the release Charmaine Pfender, Avis Lee, and Arthur Cetewayo Johnson, while establishing that the ruling in Miller v. Alabama applies to people who were over 18 years old when they committed or allegedly committed a crime.
In addition to working on the above cases, a report on DBI sentencing in Pennsylvania is being prepared by our new staff-member Quinn Cozzens. Research for this report is already being used to help support the work of movement activists pushing to abolish Death By Incarceration, and over the next few months we will be launching a program to assist the movement in lobbying for statutory changes to end all DBI sentences.
At the beginning of this year, we won an injunction forcing the PA DOC to provide treatment to Mumia Abu-Jamal using direct acting antiviral (DAA) medications to cure his hepatitis C infection. This was the first court order in the country requiring prison administrators to provide DAA medications to an incarcerated patient. Mumia announced that he was free of the hepatitis C virus at the end of May.
Late last year we started a new program to increase legal support for hepatitis C+ prisoners. Mumia’s case was an important initial victory, but we will be filing more cases before the end of the year seeking to force accountability on the PA DOC for refusing to provide the new curative treatments, and for the injuries and deaths caused by those failures.
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SC82841: State Board of Registration for the Healing Arts, Respondent v. Richard Fallon, M.D., Appellant.
Case Style: State Board of Registration for the Healing Arts, Respondent v. Richard Fallon, M.D., Appellant.
Dr. Richard Fallon is a medical director for Prudential Health Care, which administers an employee benefit plan. He decided the "medical necessity" of certain treatments, which Prudential used to extend or deny coverage. The State Board of Registration for the Healing Arts subpoenaed him, and the circuit court required him to appear. He appealed.
(1) Though federal law, ERISA, may pre-empt state laws that interfere with coverage decisions, it does not prevent the state from exercising its traditional police powers to review the medical judgments of one of its licensed physicians. ERISA supersedes all state laws relating to employee benefit plans. The statute authorizing the Board's action does not "reference" any employee benefit plan. Dr. Fallon's medical judgment is distinct from the plan's coverage policies, and his decisions will not mandate a benefits structure or alternative way for a plan beneficiary to enforce a claim.
(2) While the legislature granted the Department of Insurance extensive supervisory power over utilization review, it did not grant the DoI authority to review the medical judgments of licensed physicians who serve as medical directors.
(3) Dr. Fallon's medical judgment is subject to oversight by the Board, which is empowered to impose discipline, section 334.100.2. Prudential made an administrative decision in determining the plan would not cover this type of elective surgery unless the medical director found it "needed and appropriately provided." Dr. Fallon then made a purely medical decision when he determined the procedure was "not medically necessary."
Opinion Vote: AFFIRMED. Limbaugh, White, Holstein, Wolff and Benton, JJ., and Wallace, Sp. J., concur. Stith, J., not participating.
Opinion: Dr. Richard Fallon appeals an order of the circuit court requiring him to appear before the State Board of Registration for the Healing Arts (the Board). He contends that the Employee Retirement Income Security Act of 1974 (ERISA) preempts Missouri law insofar as it grants the Board authority to review medical decisions made on behalf of an employee benefit plan. Because Dr. Fallon's actions in this case involved the exercise of medical training and judgment, the Board is empowered to review his actions as a licensed physician. The judgment of the circuit court is affirmed.
I. FactsDr. Fallon is a state-licensed physician and surgeon. Until recently, he was employed as a medical director for Prudential Health Care (Prudential), which administers an employee benefit plan. In his capacity as medical director, Dr. Fallon made decisions concerning the "medical necessity" of certain treatments. Based on his medical judgment, Prudential would either extend or deny coverage of medical expenses to plan participants.
On January 27, 1999, the Board received a complaint from Dr. Duane Keller, an oral surgeon, regarding Dr. Fallon's determination that a requested surgical procedure was "not medically necessary." Shortly thereafter, the Board began an investigation into the complaint. On November 23, 1999, the Board issued a subpoena to Dr. Fallon, which ordered him to meet with the Board's medical staff for an interview on December 8, 1999. Dr. Fallon failed to appear.
As required by section 334.127.2,(FN1) the Board sought to enforce the subpoena by petitioning the Circuit Court of Cole County. On June 22, 2000, the circuit court entered its final judgment ordering Dr. Fallon to appear before the Board within sixty days on a date agreed upon by counsel. The circuit court then stayed the judgment to afford Dr. Fallon an opportunity to exhaust his appeals.
II. DiscussionDr. Fallon cites three points of error in the judgment of the circuit court. First, he contends that ERISA "superceded and invalidated" Missouri law to the extent that it authorized the Board to investigate matters related to an employee benefit plan. Second, he argues that chapter 334, RSMo 2000, does not authorize the Board to investigate "utilization review" cases. Finally, he argues that his decisions as medical director did not involve the practice of medicine or any other conduct that could lead to disciplinary actions under section 334.100, RSMo 2000. We address each of these contentions in turn. A.Section 514(a) of ERISA states that the act "shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. section 1144(a). The Act further defines "state law" to include "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. section 1144 (c)(1).
Whether ERISA pre-empts the Board's action in this case turns on whether the Board's investigation "relates to" the employee benefit plan. The United States Supreme Court has determined that a state law "relates to" an employee benefit plan when it "has a connection with or reference to such a plan." Shaw v. Delta Airlines, Inc., 463 U.S. 85, 97 (1987). Clearly, the statute authorizing the Board's action in this case does not "reference" any employee benefit plan. See section 334.127, RSMo 2000. The statute simply grants the Board authority to subpoena witnesses and documents when conducting investigations related to the conduct of state licensees. Id.
Thus, the inquiry in this case is whether the state action has a "connection with" an employee benefit plan. Shaw, 463 U.S. at 97. In theory, infinite connections could exist that would allow a court to find any state law to have a connection with an employee benefit plan. However, the United States Supreme Court concluded that "[f]or the same reasons that infinite relations cannot be the measure of preemption, neither can infinite connections." New York State Conference of Blue Cross and Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995); see also Egelhoff v. Egelhoff, 532 U.S. __, No. 99-1529, slip op. at 4 (March 21, 2001). In Travelers, the Court noted that the "historic police powers of the States were not to be superceded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 655. The Court further found that the "historic police powers of the State include the regulation of matters of health and safety." DeBuono v. NYSA-ILA Med. and Clinical Serv. Fund, 520 U.S. 806, 814 (1997).
The United States Supreme Court has also focused on the effect of state action on the employee benefit plan. The Court concluded that a state law causing an indirect burden on an employee benefit plan may not trigger preemption. See Travelers Ins. Co., 514 U.S. at 668. Nevertheless, the Court found that a state law "might produce such acute, albeit indirect, economic effects, by intent or otherwise, as to force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers, and that such a state law might indeed be pre-empted under section 514." Id. For example, ERISA pre-empts state laws that provide alternative enforcement mechanisms for plan beneficiaries or laws that interfere with employee benefit structures or their administration. Id. at 658; see also Thompson v. Gencare Health Systems, Inc., 202 F.3d 1072 (8th Cir. 2000).
The determinations at issue in this case fall outside the scope of plan administration. Dr. Fallon did not simply look to a predetermined list of covered procedures to arrive at his conclusions. He used medical training and judgment to make a decision about the "medical necessity" of surgical treatment for a particular patient. This medical judgment is analytically distinct from the coverage policies adopted by the employee benefit plan. Though the choice to cover a patient's expenses is an administrative choice, a physician's finding of "medical necessity" is a purely medical decision. The Missouri legislature has charged the Board or Registration for the Healing Arts with reviewing the medical judgments of state licensees. See section 334.100.1, RSMo 2000. Whether such medical judgment is exercised by a physician providing direct treatment or by a physician during a utilization review is merely coincidental to the Board's review power.
The Board's review of Dr. Fallon's medical decisions will not mandate any particular benefits structure or provide an alternative mechanism for a plan beneficiary to enforce any particular claim. See Travelers, 514 U.S. at 658. The plan beneficiary in this case will not be able to enforce her claim through the Board's investigation or disciplinary proceedings. Nor will the beneficiary be able to bring a claim against Dr. Fallon for medical malpractice. Hull v. Fallon, 188 F.3d 939, 943 (8th Cir. 1999), cert. denied, 528 U.S. 1189 (2000); see also Thompson, 202 F.3d at 1073 (8th Cir. 2000). The Board is simply initiating an investigation to ensure that Dr. Fallon is using "that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession." Section 334.100.2(5), RSMo 2000. Though ERISA may pre-empt state laws that interfere with coverage decisions, it does not prevent the state from exercising its traditional police powers to review the medical judgments of one of its licensed physicians. The point is denied. B.In his second point, Dr. Fallon contends that the trial court erred in entering final judgment because the Missouri legislature has not granted the Board authority to investigate "utilization review" cases. He argues that the legislature vested such authority in the Department of Insurance.
In 1997, the Missouri legislature granted the Department of Insurance extensive supervisory power over utilization review. See section 374.500 et seq., RSMo 2000; section 376.1350 et seq., RSMo 2000. While this statutory scheme provides a detailed regulatory framework for reviewing the administrative decisions of utilization review agents, it does not grant the Department of Insurance any authority to review the medical judgments of licensed physicians who serve as medical directors. Id. As stated before, the review authorized by the Board is not concerned with "utilization review" or the administration of insurance benefits. It is simply a review of the exercise of licensed medical judgment in accordance with the state's traditional police powers. The Department of Insurance has no authority to conduct such a review. The Board is charged with overseeing Dr. Fallon's medical judgment, while the Department of Insurance regulates his administrative insurance determinations. The point is denied.
C.In his final point, Dr. Fallon contends that the trial court erred in entering final judgment because chapter 334 does not authorize an investigation into the type of conduct at issue in this case. Specifically, he argues that his conduct could not lead to discipline under section 334.100 because his decision was nothing more than an initial determination that the employee benefit plan would not pre-certify benefits for the surgical procedure.
Dr. Fallon's argument ignores the distinct nature of the two determinations in this case. Prudential made an administrative decision when it determined that the plan would not extend benefits to cover this type of elective surgery unless the medical director found it to be "needed and appropriately provided." Dr. Fallon then made a purely medical decision when he determined that the procedure was "not medically necessary." Though his decision naturally led to a denial of coverage, the decision embodied the medical judgment of a licensed professional who determined whether a certain procedure was medically necessary for a specific patient.
The Arizona Court of Appeals addressed a similar argument in Murphy v. Board of Medical Examiners, 949 P.2d 530 (Ariz. Ct. App. 1997). In Murphy, the court considered whether the Board of Medical Examiners of the State of Arizona had jurisdiction to discipline "a licensed physician whose position as medical director for a managed health care company requires him to render decisions that potentially affect patients' medical care." Murphy, 949 P.2d at 535. The court noted that Dr. Murphy was not engaged in the "traditional practice of medicine." Id. at 536. Nevertheless, the court found that Dr. Murphy substituted his medical judgment for that of the treating physicians in determining that the proposed surgical procedure was "not medically necessary." Id. In holding that the Board of Medical Examiners may discipline the license of a medical director, the court concluded, "There is no other way to characterize Dr. Murphy's decision: it was a 'medical' decision." Id.
"[T]he obvious intention of Chapter 334 is to embrace 'any person who habitually holds himself out as a professor of the art of healing.'" State ex rel. Collet v. Scopel, 316 S.W.2d 515, 519 (Mo. 1958). Dr. Fallon's medical judgment is subject to oversight by the Board, which is empowered to impose discipline under section 334.100.2. The point is denied.
IV. ConclusionThe judgment of the circuit court is affirmed.
FN1. "The board may enforce its subpoenas, including subpoena duces tecum, by applying to a circuit court of Cole County, the county of the investigation, hearing or proceeding, or any county where the person resides or may be found, for an order upon any person who shall fail to obey a subpoena to show cause why such subpoena should not be enforced . . .." Section 334.127.2, RSMo 2000.

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Full Statute Name: Vernon's Texas Statutes and Codes Annotated. Parks and Wildlife Code. Title 5. Wildlife and Plant Conservation. Subtitle B. Hunting and Fishing. Chapter 68. Endangered Species.
Texas defines endangered species as those listed on the federal ESA List as well as those designated in the state. No person may capture, trap, take, or kill, or attempt to capture, trap, take, or kill, endangered fish or wildlife nor may he or she possess, sell, distribute, or offer or advertise for sale those species (unless allowed as described in the subchapter). Notably, this chapter excepts from its provisions coyotes, cougars, bobcats, prairie dogs, and red foxes (with no mention as to what occurs in the event they become endangered). Violation of the provisions results in a Class C Parks and Wildlife Code misdemeanor for the first offense, a Class B misdemeanor for the second offense, and a Class A misdemeanor for subsequent offenses.
(1) "Fish or wildlife" means any wild mammal, aquatic animal, wild bird, amphibian, reptile, mollusk, or crustacean, or any part, product, egg, or offspring, of any of these, dead or alive.
(C) when and where appropriate, the protection of and regulation of the taking of fish and wildlife species and populations.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975.
(2) the list of fish or wildlife threatened with statewide extinction as filed by the director of the department.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 1, § 66, eff. Sept. 1, 1985.
(a) The director shall file with the secretary of state a list of fish or wildlife threatened with statewide extinction.
(4) other natural or man-made factors.
(a) If the list of endangered native species issued by the United States is modified, the director shall file an order with the secretary of state accepting the modification. The order is effective immediately.
(b) The director may amend the list of species threatened with statewide extinction by filing an order with the secretary of state. The order is effective on filing.
(c) The director shall give notice of the intention to file a modification order under Subsection (b) of this section at least 60 days before the order is filed. The notice must contain the contents of the proposed order.
(d) If a reclassification petition is filed during the 60-day notice period required by Subsection (c) of this section, the order may not be filed until the conclusion of the proceeding on reclassification.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 1, § 67, eff. Sept. 1, 1985.
(a) Three or more persons may petition the department to add or delete species of fish or wildlife from the statewide extinction list.
(b) The petition must present substantial evidence for the addition or deletion.
(c) If fewer than 50 people join in the petition, the department may refuse to review the classification list, but if 50 or more persons join in the petition, the department shall conduct a hearing to review the classification list. The hearing shall be open to the public, and notice of the hearing shall be given in at least three major newspapers of general circulation in the state at least one week before the date of the hearing.
(d) Based on the findings at the hearing, the department may file an order with the secretary of state altering the list of fish or wildlife threatened with statewide extinction. The order takes effect on filing.
The provisions of Subchapter C, Chapter 43, of this code [FN1] are applicable to all fish or wildlife classified as endangered, and it is a violation of this chapter to possess, take, or transport endangered fish or wildlife for zoological gardens or scientific purposes or to take or transport endangered fish or wildlife from their natural habitat for propagation for commercial purposes without the permit required by Section 43.022 of this code.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1987, 70th Leg., ch. 607, § 2, eff. Sept. 1, 1987.
[FN1] V.T.C.A., Parks & Wildlife Code § 43.021 et seq.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 2, § 62, eff. Sept. 1, 1985.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 2, § 63, eff. Sept. 1, 1985.
(5) limitations on the capture, trapping, taking, or killing, or attempting to capture, trap, take, or kill, and the possession, transportation, exportation, sale, and offering for sale of endangered species.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1997, 75th Leg., ch. 1256, § 112, eff. Sept. 1, 1997.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1981, 67th Leg., p. 3135, ch. 825, § 1, eff. June 17, 1981; Acts 1987, 70th Leg., ch. 607, § 3, eff. Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1256, § 112, eff. Sept. 1, 1997.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 1, § 68, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 679, § 45, eff. Sept. 1, 1993.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1987, 70th Leg., ch. 607, § 4, eff. Sept. 1, 1987.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, § 78, eff. Sept. 1, 1985.