Jacob Johnson v. Daryl Purpera, Individually And In His Official Capacity As Louisiana Legislative Auditor, State Of Louisiana, Through Louisiana Legislative Auditor

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #020
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of May, 2021 are as follows:
BY Weimer, C.J.:
2020-CC-01175 JACOB JOHNSON VS. DARYL PURPERA, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS LOUISIANA LEGISLATIVE AUDITOR,
STATE OF LOUISIANA, THROUGH LOUISIANA LEGISLATIVE
AUDITOR (Parish of East Baton Rouge)
REVERSED. SUMMARY JUDGMENT GRANTED. SEE OPINION.
Retired Judge John D. Crigler, appointed Justice ad hoc, sitting for Crain, J.,
recused in case number 2020-CC-01175 only
Hughes, J., concurs in part, dissents in part and assigns reasons.
Genovese, J., dissents for the reasons assigned by Griffin, J.
Griffin, J., dissents and assigns reasons.

05/13/21
SUPREME COURT OF LOUISIANA
NO. 2020-CC-01175
JACOB JOHNSON
VERSUS
DARYL PURPERA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS LOUISIANA LEGISLATIVE AUDITOR, STATE OF LOUISIANA,
THROUGH LOUISIANA LEGISLATIVE AUDITOR
On Supervisory Writ to the Nineteenth Judicial District Court,
Parish of East Baton Rouge
WEIMER, Chief Justice1
This case involves a defamation claim brought by the executive director of a
public agency against the State of Louisiana and the Louisiana Legislative Auditor
arising out of statements appearing in two audit reports and the summaries which
accompanied the release of those audit reports. Plaintiff maintains the audits cast his
conduct in connection with his duties at the agency in a defamatory light. The
defendants moved for summary judgment, but the district court denied the motion,
finding the existence of genuine issues of material fact. The court of appeal denied
writs. We granted certiorari, primarily to determine whether the lower courts erred
in concluding that genuine issues of material fact preclude summary judgment.
Finding that there are no genuine issues of material fact, and that the questions
presented are all questions of law, we further find that the statements are not
actionable as a matter of law, but rather are statements of opinion relating to matters
1 Retired Judge John D. Crigler, appointed Justice ad hoc, sitting for Justice William J. Crain.

of public concern that do not carry a provably false factual connotation. As such, the
statements are entitled to full constitutional protection. Therefore, we reverse the
judgments of the lower courts and grant summary judgment in favor of defendants.
FACTS AND PROCEDURAL HISTORY
The Health Education Authority of Louisiana (“HEAL”) is a corporate and
public body constituting an instrumentality of the State of Louisiana and exercising
public and essential governmental functions. La. R.S. 17:3053. Its primary mission
is to promote medical and health educational activities in the state of Louisiana by
planning, acquiring, constructing, reconstructing, rehabilitating, improving and
developing facilities in communities in Louisiana where graduate medical education
is offered, and by providing for the financing of such projects. La. R.S. 17:3051.
HEAL is governed by a board of trustees that employs an executive director, who is
an unclassified employee of the state. La. R.S. 17:3053(G). During the time period
relevant hereto, plaintiff Jacob Johnson served as HEAL’s Executive Director.
The Legislative Auditor is charged by the constitution with the duty and
responsibility of auditing the fiscal records of the state, its agencies, and political
subdivisions. La. Const. art. III, § 11. Pursuant to the authority granted it by the
constitution, the Legislative Auditor elected to perform two audits of HEAL: (1) a
financial audit for the fiscal year ending June 30, 2016; and (2) an informational audit
examining HEAL’s operations (including sources and uses of funds) for the years
2012-2016.
An audit team was formed, and on June 22, 2016, the Auditor met with
members of HEAL’s Board and Mr. Johnson to discuss the Auditor’s preliminary
findings. In connection with that meeting, the Auditor prepared a bullet list of
deficiencies that had been identified with respect to HEAL’s operations. Basically,
2

the deficiencies revolved around HEAL’s bonding activity, certain professional
services contracts, travel and reimbursement costs, and Board administration. While
the meeting was confidential, and conducted for the purpose of permitting HEAL to
supply additional information regarding the alleged deficiencies, Mr. Johnson avers
that the preliminary findings were shared with members of the Board of Regents in
July of that year, a fact the Auditor disputes.2
In any event, on December 16, 2016, the Auditor conducted an exit interview
with HEAL Board members and employees, including Mr. Johnson, to discuss the
contents of the financial and informational audits and to provide HEAL with a final
opportunity to supply any information that might alter the contents of the audits.
Following that meeting, on December 28, 2016, the Auditor released its final
financial audit report on HEAL, as well as a one-page summary of the report. The
informational audit was finalized and released by the Auditor on January 18, 2017.
It, too, was accompanied by a one-page summary. On or about January 23, 2017, the
Auditor’s office issued a press release with a link to the informational audit. The
press release, which bears the heading “HEAL’s Operations Marked by Lack of
Construction Projects, Increasing Expenses, Noncompliance,” basically repeats the
information provided in the one-page summary of the informational audit.
Both audits, and their accompanying summaries, report and reiterate the
deficiencies first pointed out to the HEAL Board at the June 2016 meeting and
2 During the time period covered by the audits, HEAL operated under the auspices of the
Department of Health. By 2016 La. Acts 577, effective August 1, 2016, HEAL was transferred to
the Department of Education and placed under the Board of Regents to operate under its own
authority.
3

thereafter at the exit interview in December, 2016. Thus, with respect to HEAL’s
bonding activity, the informational audit3 reports:
HEAL has not funded a construction project since 2004.
HEAL financed nine construction projects over 35 years, from its
creation in 1968 through 2004.
. . . .
In 2015, HEAL issued revenue refunding bonds totaling $6.6 million.
Prior to these refunding bonds, HEAL’s most recent bond issuance
occurred 11 years prior, in 2004. ...
During the House of Representatives Health and Welfare committee
meeting on May 24, 2016, the HEAL executive director testified that
HEAL had completed a YMCA project last year, but that statement was
inaccurate. In July 2015, the State Bond Commission conditionally
approved the issuance of $6 million in revenue refunding bonds to
provide for the acquisition and construction of the Greater New Orleans
YMCA’s flagship location. However, as of the date of this report, these
bonds have not been issued because the YMCA is still searching for a
location for its new facility. As a result, HEAL has funded no
construction projects since 2004.
With respect to HEAL’s professional services contracts, the audit reports:
HEAL management executed contracts that circumvented state
purchasing oversight controls and violated state purchasing
regulations.
During our review of professional services expenses, we identified
contracts signed only by the HEAL executive director and not approved
by LDH’s undersecretary, which circumvented state purchasing
oversight controls and violated state purchasing regulations. During
the time period of our review, HEAL was statutorily under the oversight
of the LDH undersecretary. While HEAL was authorized to determine
the necessity of contracting for professional services, the undersecretary
of LDH’s Office of Management and Finance had the sole authority to
solicit for bids and execute such contracts. The results of our review of
those contracts are as follows:
3 The financial audit and the informational audit identify basically the same perceived shortcomings
with respect to HEAL’s professional services contracts, employing substantially similar language
to do so. Because the informational audit is the more comprehensive of the documents,
encompassing more of the language plaintiff alleges to be defamatory, and because it is the audit
most cited by plaintiff, it is quoted here. The statements that appear in bold print appear that way
in the audit.
4

Consulting Contract to Facilitate Strategic Planning. During fiscal
year 2015, HEAL attempted to amend a consulting contract with SSA
Consultants (SSA) to extend the original contract terms from a one-year
contract totaling $19,500 to a three-year contract totaling $172,000.
LDH did not approve this contract amendment, as the dollar amount of
the contract required that the agency follow a competitive Request for
Proposals process. Subsequently, HEAL created a new contract with the
same consulting agency for a three-year term totaling $172,000. The
state Office of Contractual Review (OCR) did not approve this contract
because it was classified as a professional services contract rather than
a consulting contract. Despite not receiving approval from LDH and
OCR, HEAL’s executive director executed the contract as an LDH
contract, with his signature only, and without the required
competitive bid. Documentation provided to us by LDH showed that
the department notified the executive director each time the contract was
denied that the contract was for consulting services that exceeded
$50,000, and thus required a competitive award process. As of June 30,
2016, a total of $50,671 has been paid on this contract. In addition, as
of June 30, 2016, there was an additional $54,427 of outstanding
invoices owed to the consultant for work performed through fiscal year
2016.
Because HEAL was not compliant with state requirements regarding the
execution of the contract, the Commissioner of Administration has the
option to either ratify and affirm the contract if it is in the best interests
of the State or terminate the contract and compensate the consultants for
actual expenses incurred for services performed prior to termination.
Once we brought this issue to the attention of the HEAL Board and
SSA, SSA informed us that they would no longer perform services under
this contract or any other business with HEAL.
Legal Services. An amendment to one of the legal services contracts
with Kinney, Ellinghausen, Richard & DeShazo, extending the contract
to a term of four years, was not approved by the LDH undersecretary,
the Attorney General, or the Joint Legislative Committee on the Budget
(JLCB) as required. Contracts for legal services, and subsequent
amendments, require the approval of the Attorney General; however, no
such approval was obtained on this amendment. Contracts of more than
three years but no more than five years require approval of the JLCB;
however, no such approval was obtained. Again, the executive
director signed this contract extension but did not obtain the
approval and required signature authority of the LDH
undersecretary, obligating LDH and the state without proper
authority. Once we brought this issue to the HEAL Board’s attention,
HEAL revised the contract amendment to involve only an extension of
the dollar amount, an increase from $65,000 to $150,000, but not the
length of the original contract. This revised amendment was
subsequently approved by the Attorney General and the LDH
undersecretary as required.
5

Accounting Services. A contract extension for accounting services
with Luther Speight & Company to perform bookkeeping and provide
interim financial statements was not approved by the LDH
undersecretary or the JLCB. Again, the executive director signed this
contract extension but did not obtain the approval and required
signature authority of the LDH undersecretary, obligating LDH and
the state without proper authority. Also, this contract was for a
term of four years and was not approved by JLCB as required.
Once we brought this issue to the HEAL Board’s attention, HEAL
amended the contract to include a term of one year and subsequently
obtained approval from the LDH undersecretary as required.
Lobbying Services. One contract with Southern Strategy Group,
identified as a social services contract, did not meet the definition of a
social services contract. By law, social services contracts promote the
general welfare of the citizens of Louisiana and include, but are not
limited to, contracts for rehabilitation services, health-related
counseling, drug and alcohol training and treatment, etc. This contract
was for the purpose of governmental relations and legislative planning
services. This contract was not approved by the LDH undersecretary.
By law, state entities cannot expend funds to lobby the Legislature or
local government authorities. Again, the executive director signed
this contract but did not obtain the required approval and signature
authority of the LDH undersecretary, obligating LDH and the state
without proper authority. Once we brought this issue to the HEAL
Board’s attention, the Board canceled the contract.
However, it appears HEAL did use services for lobbying, possibly in
violation of state law. During several committee meetings of the 2016
Regular Legislative Session, an employee of Southern Strategy Group
provided testimony regarding Senate Bill 230 (Act 577). The employee
indicated that he was a representative of HEAL’s legal counsel, Kinney
Ellinghausen. In addition, a search of the Louisiana Board of Ethics
website revealed that a member of one of HEAL’s legal firms, Jones
Walker, LLP, is currently registered as a lobbyist for HEAL. As noted
above, state entities cannot expend funds for lobbying.
With respect to travel and reimbursements, the audit reports:
HEAL was not compliant with state regulations for travel mileage
reimbursements ...
State Travel Reimbursements. During our review of supporting
documentation, we identified 58 dates where the executive director
requested reimbursement for mileage within his official domicile of New
Orleans. The mileage reimbursement requests ranged from one to 29
miles. According to state travel regulations, employees may not be
reimbursed for travel within their domicile unless they have obtained an
authorization for routine travel as a regular and necessary part of the
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employee’s duties. We reviewed the executive director’s annual travel
authorization forms and approved reimbursement forms. However, we
did not note any specific mention of authorization for travel within
domicile. The executive director was paid $215.73 in violation of state
travel regulations.
And, finally, with respect to administration and operations, the audit reports:
HEAL participated in proposed legislation that would expand its
service area, double its total bonding authority, and allow autonomy
in its operations, without a transition plan for effective and efficient
ongoing operations.
During the 2016 Regular Legislative Session, the Legislature passed Act
577, which was effective August 1, 2016. ...
Prior to August 1, 2016, LDH provided services to HEAL for human
resources, payroll, and related benefits management; accounting and
payment management services; contract administration services; and
state email accounts and information technology support. When the Act
became effective on August 1, 2016, LDH discontinued its support for
HEAL. HEAL had no transition plan in place and found itself with no
email services and no way to pay its employees or its bills. ...
HEAL’s Board responded to the audits, concurring with several of the
recommendations suggested therein. In particular, the Board indicated that it had
directed plaintiff, its Executive Director, to comply without exception to state
procurement rules, and created a committee composed of two Board members and the
Executive Director to evaluate future procurements and to guide the process from
beginning to end. It also resolved to adhere to state travel requirements. The Board’s
response was published along with the audits.
Convinced that the audits unduly cast his actions in a negative light, plaintiff
filed the instant suit seeking damages for defamation.4 Named as defendants were
Daryl Purpera, individually, and in his official capacity as Louisiana Legislative
Auditor, and the State of Louisiana, through the Louisiana Legislative Auditor.
4 Plaintiff’s petition alleges that he was unfairly targeted and singled out for criticism because of his
race. These allegations are serious, and not to be taken lightly, but because of the narrowness of the
motion before the court, they are not relevant to the issues discussed herein.
7

Following a ruling by the district court sustaining an exception of no cause of action
to his original petition, plaintiff filed a Restated, Supplemental and Amending
Petition. Defendants responded by filing a Special Motion to Strike pursuant to La.
C.C.P. art. 971. The district court granted the motion to strike with respect to the
Legislative Auditor in his individual capacity. It denied the motion as to the State of
Louisiana and the Legislative Auditor in his official capacity, ruling that the state
entities could not avail themselves of the Article 971 special motion to strike.
In response, the remaining defendants–Daryl Purpera in his official capacity
as Louisiana Legislative Auditor and the State of Louisiana through the Louisiana
Legislative Auditor–filed a motion for summary judgment. The motion rested on two
grounds: (1) the statements in the audits are not defamatory as a matter of law; and
(2) the statements in the audits are all true. The district court allowed the parties to
conduct limited discovery, following the conclusion of which the motion for summary
judgment was briefed and orally argued.
At the conclusion of the hearing, the district court denied defendants’ motion
for summary judgment. Acknowledging that whether words are capable of having
a defamatory meaning is a question of law, the district court nevertheless reasoned
that questions of fact as to the subjective intentions of the Auditor precluded
summary judgment:
[I]t is alleged and supported by jurisprudence that whether it’s
defamatory per se is a question of law to be decided by the court. But
as with so many issues, there must be a determination of fact before the
question of law can be decided. As argued by the plaintiff, it is more
than just an allegation of a crime. There can be an allegation or
publication which diminishes the status of the plaintiff in the eyes of the
public. And we can get down to splitting hairs as to whether saying that
Mr. Johnson testified before the legislature, and his testimony was not
correct is an allegation of perjury or not. But it certainly could be
interpreted in that way if the trier of fact were to make a determination
that that is what the auditor was alleging. The same is true for the
8

malfeasance and other allegations against the executive director. ... As
I mentioned, this may be a determination that is considered a
determination of law, but it cannot be made without all of the facts. I
think there are issues of fact which preclude this court making such a
legal determination at this point, so the motion for summary judgment
is denied.
Defendants sought supervisory review from this ruling. Following briefing and
argument, ordered pursuant to La. C.C.P. art. 966(H), a divided panel of the court of
appeal denied defendants’ writ application. The majority explained:
While the question of whether a communication is defamatory is
one of law, genuine issues of material fact exist herein, specifically as
to whether or not defendants/relators, Daryl Purpera and the State of
Louisiana through the Louisiana Legislative Auditor, implicitly accused
plaintiff, Jacob Johnson, of violations of criminal law. See Costello v.
Hardy, 2003-1146 (La. 1/21/04), 864 So.2d 129, 140. As noted by the
district court, the implication and interpretation of the challenged
statements, and whether the Legislative Auditor’s reports accuse
Johnson of perjury, theft, and malfeasance, are questions of fact properly
reserved for a jury. Under a theory of defamation per se, words which
expressly or implicitly accuse another of criminal conduct, or which by
their very nature tend to injure one’s personal or professional reputation,
without considering extrinsic facts or circumstances, are considered
defamatory per se. Kennedy v. Sheriff of East Baton Rouge, 2005-
1418 (La. 7/10/06), 935 So.2d 669, 675. As such, summary judgment
is not appropriate at this time.
Moreover, genuine issues of material fact remain concerning
Johnson’s status as a public official, the designation of which is critical,
as he is unable to assert a theory of defamation by innuendo if
categorized as such. Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737
So.2d 706, 717. Under a theory of defamation by innuendo, a plaintiff
may recover for truthful statements of fact which carry a false,
defamatory implication about another. In other words, defamatory
meaning can be insinuated from an otherwise true communication. Id.
Herein, if the statements contained in the Legislative Auditor’s reports
are true, and if held to be a public official, Johnson is unable to assert a
claim of defamation by innuendo. Consequently, as genuine issues of
material fact exist concerning the extent of Johnson’s authority and
duties as HEAL executive director, specifically as related to, and
contrasted with, the HEAL Board of Trustees, summary judgment is not
appropriate at this time.
Johnson v. Purpera, 19-1503 (La.App. 1 Cir. 9/10/20) (unpublished).
9

Chief Judge Whipple dissented from the writ denial. Her de novo review of the
record led her to conclude that the audit reports did not contain any defamatory
words; rather, “the LLA simply discovered that certain rules and regulations were not
followed by Johnson, as HEAL Executive Director, in specific instances, and noted
that a statement made by Johnson was inaccurate based on facts as outlined in the
audit reports.” Id. Chief Judge Whipple found that, as a matter of law, a statement
that a public agency did not always comply with paperwork requirements is not
defamatory, and that the audits in question did not impute any violation of criminal
law to either HEAL or Mr. Johnson. Further, she found that the challenged
statements in the audits are not “provably false,” but “merely convey the auditors’
professional judgments that HEAL and Johnson’s practices fell short of state policy.”
Id. As statements of opinion relating to matters of public concern that do not contain
a provably false factual connotation, Chief Judge Whipple concluded the statements
are constitutionally protected, citing Lamz v. Wells, 2005-1497 (La.App. 1 Cir.
6/9/06), 938 So.2d 792, 798, and Romero v. Thomson Newspapers (WI), Inc., 94-
1105 (La. 1/17/95), 648 So.2d 866, 870 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). She would have granted the writ, reversed the district court’s
judgment, and rendered judgment in favor of defendants.
This court granted defendants’ application for supervisory review, primarily
to address and clarify the respective roles of the court and the trier of fact in resolving
defamation claims and, more particularly, in assessing whether words are capable of
a defamatory meaning and whether a plaintiff is a public official. Johnson v.
Purpera, 20-01175 (La. 1/12/21), 308 So.3d 298.
LAW AND ANALYSIS
10

This case comes before the court via a motion for summary judgment. As a
result, our review is de novo, using the same criteria that govern the district court’s
consideration of whether summary judgment is appropriate. Kennedy v. Sheriff of
East Baton Rouge, 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686. Pursuant to
La. C.C.P. art. 966(A)(3), a court must grant a motion for summary judgment “if the
motion, memorandum, and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of law.”
Notably, while the burden of proof remains with the movant, if, as here, the movant
will not bear the burden of proof at trial of the matter, the movant’s burden on the
summary judgment motion does not require him to negate all essential elements of the
adverse party’s claim, but rather to point out to the court that there is an absence of
factual support for one or more elements essential to the adverse party’s claim;
thereafter, the burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).
The motion for summary judgment before the court arises out of plaintiff’s
claim for defamation. Emanating from La. C.C. art. 2315, defamation is a tort
involving the invasion of a person’s interest in his or her reputation and good name.
Kennedy, 05-1418 at 4, 935 So.2d at 674; Costello v. Hardy, 03-1146, p. 12 (La.
1/21/04), 864 So.2d 129, 139. Four elements are necessary to establish a claim for
defamation: (1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or greater) on the part
of the publisher; and (4) resulting injury. Id.; RESTATEMENT (SECOND) OF TORTS
§ 558 (1977). As we explained in Costello, the fault requirement is generally referred
11

to in the jurisprudence as malice, actual or implied. Costello, 03-1146 at 12, 864
So.2d at 139.
Given the foregoing, in order to prevail on a defamation claim, a plaintiff must
prove “‘that the defendant, with actual malice or other fault, published a false
statement with defamatory words which caused plaintiff damages.’” Id. (quoting
Trentecosta v. Beck, 96-2388, p. 10 (La. 10/21/97), 703 So.2d 552, 559). If even
one of the required elements of the tort is lacking, the claim fails. Id.
Because of their chilling effect on the exercise of free speech, defamation
actions traditionally have been found particularly appropriate for resolution by
summary judgment. “Summary adjudication, we have recognized, is a useful
procedural tool and an effective screening device for avoiding the unnecessary
harassment of defendants by unmeritorious actions which threaten the free exercise
of rights of speech and press.” Kennedy, 05-1418 at 25, 935 So.2d at 686.
Consistent with this maxim, the defendants filed a motion for summary
judgment asserting the plaintiff will not be able to establish two essential elements
of his defamation claim: (1) defamatory words; and (2) a false statement of fact. In
addressing the first ground on which the defendants’ summary judgment is
based–whether the words used in the audits are capable of a defamatory
meaning–both the district court and the court of appeal majority began their analysis
by acknowledging that the question of whether a communication is defamatory is one
of law. Nevertheless, both lower courts opined that genuine issues of material fact
exist with respect to whether the challenged words implicitly accuse plaintiff of a
crime and are, thus, defamatory per se, and that this determination is one for the trier
of fact in the first instance. On this point, the lower courts erred.
12

While defamation is a state law tort, the First Amendment to the U.S.
Constitution and its prohibition against any law abridging freedom of speech or of the
press impose constraints where public officials and public concerns are involved.
Kennedy, 05-1418 at 6, 935 So.2d at 675. As a consequence, and in order to avoid
the chilling effect and self-censorship that defamation cases invite, it falls to the court
to determine in the first instance whether words fall outside the realm of protected
speech. New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (quoting
Pennekamp v. Florida, 328 U.S. 331, 335 (1946)) (Where the question is whether
the line between speech unconditionally guaranteed and speech which may
legitimately be regulated has been crossed, “we ‘examine for ourselves the statements
in issue and the circumstances under which they were made to see whether they are
of the character which the principles of the First Amendment, as adopted by the Due
Process Clause of the Fourteenth Amendment, protect.’”). This is the rule that has
obtained and been consistently observed by the courts in Louisiana. Costello, 03-
1146 at 13, 864 So.2d at 140 (citing Sassone v. Elder, 626 So.2d 345, 352 (La.
1993)) (“The question of whether a communication is capable of a particular meaning
and whether that meaning is defamatory is ultimately a legal question for the court.”);
Fitzgerald v. Tucker, 98-2313, p. 11 (La. 6/29/99), 737 So.2d 706, 716 (quoting
Mashburn v. Collin, 355 So.2d 879, 886-87 (La. 1977)) (“[W]hen interpretation of
a communication in light of the constitutional requirements is involved, our scope of
review is to examine in depth the “statements in issue” and the “circumstances under
which they were made,” and to “re-examine the evidentiary basis of the lower court
decision in the light of the Constitution.”).
As we explained in Sassone, whether a communication is capable of a
particular meaning and whether that meaning is defamatory is a question for the
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court; whether a communication, which is capable of a defamatory meaning, was so
understood by its recipient is a question for the trier of fact or the jury. Sassone, 626
So.2d at 352. Thus, in the determination of whether a given communication is
defamatory, three questions typically arise. The first is whether the communication
was reasonably capable of conveying the particular meaning or innuendo ascribed to
it by the plaintiff. The second is whether that meaning is defamatory in character.
And, finally, the third question is whether the meaning in question was in fact
conveyed to and understood by the recipient of the communication. The first two
questions are reserved for resolution by the court. The third is for the jury or the trier
of fact to decide. Id.; RESTATEMENT (SECOND) OF TORTS § 614 (1977).
In this case, the lower courts abandoned the long-standing rule regarding the
respective roles of the court and the jury in defamation cases and the responsibility
to determine, in the first instance, whether the challenged words in the audits are
capable of the particular meaning ascribed to them by the plaintiff and whether that
meaning is defamatory. It is not the role of the jury or the trier of fact to determine
“the implication and interpretation of the challenged statements,” at least insofar as
imputations of criminal conduct are concerned. The words themselves are not in
dispute, and they are in the record. It is uniquely the role of the court to determine
if those words are capable of a particular meaning and if that meaning is defamatory.
In the same vein, the majority of the court of appeal erred in assigning to the
jury or trier of fact the determination of whether plaintiff is a public official. Since
the seminal decision of the U.S. Supreme Court in New York Times v. Sullivan,
supra, the determination of whether the plaintiff in a defamation action is a public
14

official is foundational, as it controls the plaintiff’s burden of proof.5 For that reason,
the Court has ruled that the question of whether a person is a public official or a
private figure is a question of law for the court to resolve. Rosenblatt v. Baer, 383
U.S. 75, 88 (1966) (“[I]t is for the trial judge in the first instance to determine whether
the proofs show [plaintiff] to be a ‘public official.’”). Indeed, until the present
decision, the rule in the First Circuit has been precisely that. Guzzardo v. Adams,
411 So.2d 1148, 1150 (La. App. 1 Cir. 1982) (“[T]he trial judge was correct in
deciding that issue [whether the proofs show plaintiff to be a ‘public official’] rather
than sending same to the jury.”). As with the determination of whether words are
capable of a particular meaning and whether that meaning is defamatory, the
determination of whether a plaintiff is a “public official” is one reserved for the court.
Turning to the merits of the summary judgment motion, defendants contend
that the words in the audits are not defamatory as a matter of law. “By definition, a
statement is defamatory if it tends to harm the reputation of another so as to lower the
person in the estimation of the community, deter others from associating or dealing
with the person, or otherwise expose the person to contempt or ridicule.” Kennedy,
05-1418 at 4-5, 935 So.2d at 674 (citing Costello, 03-1146 at 13, 864 So.2d at 140,
and Trentecosta, 96-2388 at 10, 703 So.2d at 559). “Thus, a communication which
contains an element of personal disgrace, dishonesty, or disrepute undoubtedly
satisfies the definition of defamatory.” Fitzgerald, 98-2313 at 11, 737 So.2d at 716.
However, not all defamatory statements are actionable, as many are protected by the
First Amendment’s guarantee of freedom of speech. Id.
5 In New York Times, the Court held that the First Amendment prohibits a public official from
recovering damages arising from a defamatory falsehood published in relation to his or her official
conduct unless the public official proves that the statement was made with “actual malice;” i.e., with
knowledge that it was false or with reckless disregard of whether it was false or not. New York
Times, 376 U.S. at 279-80.
15

As the court explained in Fitzgerald, there are three types of defamatory
statements that are actionable in Louisiana: (1) false defamatory statements of fact;
(2) statements of opinion which imply false defamatory facts; and (3) truthful
statements which carry a defamatory implication. Id., 98-2313 at 11-13, 737 So.2d
at 716-17. This latter, or third, type of defamatory statement is referred to in the
jurisprudence as defamation by implication or innuendo, and “occurs when one
publishes truthful statements of fact, and those truthful facts carry a false, defamatory
implication.” Id., 98-2313 at 12, 737 So.2d at 717. In other words, it occurs where
a defamatory meaning can be insinuated from an otherwise true statement. Id.;
Schaefer v. Lynch, 406 So.2d 185, 188 (La. 1981). However, it is actionable only
if the statements regard a private individual and private affairs. Id., 98-2313 at 13,
737 So.2d at 717. Where public affairs are concerned, the publication of true
statements is encouraged, and there can be no civil or criminal liability for such,
regardless of ill-will or improper motive on the part of the speaker. Schaefer, 406
So.2d at 188 (citing Garrison v. State of Louisiana, 379 U.S. 64, 74 (1964)).
In the instant case, a majority of the court of appeal theorized that the plaintiff
might have available to him a claim of defamation by innuendo, depending on his
status as either a private individual or a public official. Finding that genuine issues
of material fact remain concerning plaintiff’s status, the court of appeal concluded
that, on this basis, summary judgment is not appropriate “at this time.” Respectfully,
in this conclusion, the court of appeal erred.
The error occurred because, as discussed supra, the question of whether
plaintiff is a public official or a public figure is a question of law for the court to
resolve. The question should not have been relinquished to a future jury.
Furthermore, while the question of plaintiff’s status as a private individual or public
16

official is a legal one this court can reach,6 it is not necessary for us to do so in this
instance because defamation by innuendo is only available when, as noted above,
statements regard a private individual and private affairs. Schaefer, 406 So.2d at
188. Here, the audits address the administration and operations of a public agency,
HEAL. As such, they address matters of public concern. Connick v. Myers, 461
U.S. 138, 146 (1983) (Speech in relation to a matter of public concern is speech
“relating to any matter of political, social, or other concern to the community.”)
Certainly, the management (or possible mismanagement) of a public agency is a
matter of concern to the public; therefore, on that basis alone, defamation by
innuendo is unavailable to the plaintiff. See Fitzgerald, 98-2313 at 16-17, 737 So.2d
at 720 (because mismanagement by the Louisiana State Board for the Certification
of Substance Abuse Counselors which resulted in the issuance of unnumbered and
improperly executed certificates and the issuance of those certificates were matters
of public concern, defendant’s truthful statement of fact did not give rise to a claim
of defamation by innuendo).
Because defamation by innuendo is unavailable to plaintiff, to be actionable,
the audits must contain either false defamatory statements of fact about the plaintiff
or statements of opinion which imply false defamatory facts about the plaintiff.
6 A “public official” has been variously defined as a person or persons “among the hierarchy of
government employees who have, or appear to have, substantial control over the conduct of
government affairs,” and as a person who holds a governmental position that “has such apparent
importance that the public has an independent interest in the qualifications and performance of the
person who holds it, beyond the general public interest in the qualifications and performance of all
government employees.” Rosenblatt, 383 U.S. at 85, 86. While we do not decide the issue of
whether plaintiff is a public official here, we note that plaintiff’s position as Executive Director of
HEAL, a public agency, made him the public face of that agency. Indeed, the premise of his
defamation suit is that the public would regard him as the person responsible for the operations of
the agency, and attribute to him its deficiencies (as well as successes). Moreover, in his role as
Executive Director (a position created by statute), plaintiff represented the agency before the
legislature and negotiated and signed state contracts worth substantial sums of money, strongly
suggesting that he was in a position to “have, or appear to have, substantial control over the conduct
of government affairs.”
17

Fitzgerald, 98-2313 at 11-13, 737 So.2d at 716-717; RESTATEMENT (SECOND) OF
TORTS §§ 565 & 566 (1977).
The threshold question in any defamation action is whether the words
complained of are capable of a defamatory meaning. Costello, 03-1146 at 15, 864
So.2d at 141. This question is answered by reading the publication as a whole.
Sassone, 626 So.2d at 352; Cortez v. Shirley, 555 So.2d 577, 579 (La.App. 1 Cir.
1989). The challenged words must be construed according to the meaning that will
be given them by reasonable individuals of ordinary intelligence and sensitivity, and
they must be understood in the context in which they were used and in the manner
shown by the circumstances under which they were used. Cortez, 555 So.2d at 580-
81. Ultimately, the question posed to the court is whether a particular statement is
objectively capable of having a defamatory meaning, considering the statement as a
whole, the context in which it was made, and the effect it is reasonably intended to
produce in the mind of the average listener. Sassone, 626 So.2d at 352; Kosmitis v.
Bailey, 28,585, p. 3 (La. App. 2 Cir. 12/20/96), 685 So.2d 1177, 1180.
As this court has noted, defamatory words have traditionally been classified
into two categories: those that are defamatory per se and those that are capable of a
defamatory meaning. Costello, 03-1146 at 13-14, 864 So.2d at 140. “Words which
expressly or implicitly accuse another of criminal conduct, or which by their very
nature tend to injure one’s personal or professional reputation, even without
considering extrinsic facts or circumstances, are considered defamatory per se.” Id.
Here, the plaintiff maintains that the audits falsely accuse him of criminal
conduct and are, thus, defamatory per se. Specifically, plaintiff points to language
in the informational audit which reports:
18

During the House of Representatives Health and Welfare committee
meeting on May 24, 2016, the HEAL executive director testified that
HEAL had completed a YMCA project last year, but that statement was
inaccurate. In July 2015, the State Bond Commission conditionally
approved the issuance of $6 million in revenue refunding bonds to
provide for the acquisition and construction of the Greater New Orleans
YMCA’s flagship location. However, as of the date of this report, these
bonds have not been issued because the YMCA is still searching for a
location for its new facility.
Plaintiff maintains that this statement is tantamount to an accusation of perjury.
In a similar vein, plaintiff points to language in the audit reporting that (1)
“HEAL has not funded a construction project since 2004” and (2) when HEAL was
statutorily removed from the oversight of the Louisiana Department of Health “HEAL
had no transition plan in place and found itself with no email services and no way to
pay its employees or its bills.” He maintains that these statements are tantamount to
an accusation that he committed malfeasance in office.
Additionally, plaintiff points to the following language in the audit as
tantamount to an accusation of theft:
During our review of supporting documentation, we identified 58 dates
where the executive director requested reimbursement for mileage
within his official domicile of New Orleans. The mileage
reimbursement requests ranged from one to 29 miles. According to state
travel regulations, employees may not be reimbursed for travel within
their domicile unless they have obtained an authorization for routine
travel as a regular and necessary part of the employee’s duties. We
reviewed the executive director’s annual travel authorization forms and
approved reimbursement forms. However, we did not note any specific
mention of authorization for travel within domicile. The executive
director was paid $215.73 in violation of state travel regulations.
While we agree with plaintiff that a speaker can accuse someone of a crime
without stating the statutory basis for the offense,7 in this instance, considering the
7 Thus, for example, we concluded in Kennedy that an allegation to law enforcement officers that
the plaintiff “had passed counterfeit or unlawful tender at its restaurant” could be construed as a
false accusation of the crime of monetary instrument abuse, La. R.S. 14:72.2, even though the
criminal statute was not cited by the speaker. Kennedy, 05-1418 at 5, 935 So.2d at 675.
19

statements in the context of the paragraphs in which they appear as well as in the
context of the audits overall, we are inexorably led to the conclusion that they are not
capable of being understood by a reasonable viewer as accusations of perjury,
malfeasance and/or theft, as plaintiff maintains.
As regards the statement that plaintiff’s testimony before a legislative
committee regarding completion of a YMCA project was “inaccurate,” this statement
appears in a section of the informational audit which reports on HEAL’s bonding
activity. In that paragraph, the auditor explains that conditional approval for issuance
of $6 million in revenue refunding bonds had been obtained, but that the bonds had
not yet been issued because the YMCA had not found a location for its new facility;
therefore, the statement that the YMCA project had been “completed” was
“inaccurate.” In other words, according to the audit, the statement told only part of
the story. This is hardly an allegation of perjury. By definition, perjury is the
intentional making of a false statement on a matter material to the issue or question
in controversy. La. R.S. 14:123. In the understanding of a reasonable individual of
ordinary intelligence and sensitivity, the statement that an individual’s account of an
event is “inaccurate,” is hardly an accusation that individual committed the offense
of perjury. There is no mention of an oath; no intimation of an intent to mislead. In
short, there are present in the statement none of the elements that would constitute,
or be understood by the reasonable person as alleging, the crime of perjury.
Moreover, rather than being directed at plaintiff personally, the comment, when
considered in context, is more generally offered as evidence of the Board’s failure to
fund a construction project since 2004, and not as an allegation of criminal
wrongdoing on the part of the plaintiff.
20

Insofar as the statement that plaintiff was paid $215.73 “in violation of state
travel regulations” is concerned, it is clear from a reading of the statement, in context,
that the auditor is merely pointing out that state travel regulations require special
authorization in order for an employee to receive reimbursement for travel within his
or her domicile, and that documentation indicating that plaintiff received that special
authorization was not specifically mentioned in his annual travel authorization forms
and approved reimbursement forms. This allegation of missing documentation is
hardly an allegation of theft;8 nor would it be understood as such by a reasonable
individual of ordinary intelligence. There is no suggestion by the auditor of
fraudulent conduct or of an intent to misappropriate on the part of the plaintiff.
With respect to the statements that “HEAL has not funded a construction
project since 2004” and that when HEAL was removed from the oversight of the
Louisiana Department of Health “HEAL had no transition plan in place and found
itself with no email services and no way to pay its employees or bills,” these
statements do not, as plaintiff alleges, accuse plaintiff of malfeasance in office. In
fact, the statements do not even refer to plaintiff. HEAL and its executive director
are not synonymous. Repeatedly and consistently, the audit distinguishes between
the two. The comments plaintiff complains of as defamatory are clearly directed at
the HEAL Board and its performance.9 Therefore, however distasteful plaintiff may
8 Theft is the “misappropriation of taking of anything of value which belongs to another, either
without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct,
practices, or representations.” La. R.S. 14:67. It requires an intent to deprive the other permanently
of whatever may be the subject of the misappropriation or taking. Id.
9 Plaintiff did not begin working at HEAL until 2011, and only became Executive Director in
December 2012, so the agency’s bonding activity, or lack thereof, since 2004 clearly references the
Board’s performance, and not the plaintiff’s. Further, the audit makes clear that the responsibility
for development of a transition plan was that of the Board, and not plaintiff, as immediately
following the sentence noting that HEAL had no transition plan in place, the audit states: “We asked
for a transition plan that would address the changes outlined by the legislation, but none was
provided. We reviewed the Board meeting minutes but found no discussion of a transition plan
if legislation were passed.” [emphasis supplied].
21

find the comments, they are not capable of being understood by a reasonable person
as intending a defamatory meaning toward plaintiff and, thus are not actionable.10
See Sassone, 626 So.2d at 355 (to be actionable, statements must be capable of being
understood by a reasonable person as intending a defamatory meaning to these
plaintiffs); See also RESTATEMENT (SECOND) OF TORTS § 564 (1977).
In addition to the foregoing statements in the audits, plaintiff points to a section
in the informational audit that appears under the heading “HEAL management
executed contracts that circumvented state purchasing oversight controls and violated
state purchasing regulations.” Therein, the audit identifies four professional service
contracts signed by plaintiff (a consulting contract with SSA Consultants, a legal
services contract with Kinney, Ellinghausen, Richard & DeShazo, an accounting
services contract with Luther Speight & Company, and a contract for lobbying
services with Southern Strategy Group) which did not have the approval and
signature authority of the undersecretary of the Louisiana Department of Health,
which, during the time period of the audits, had statutory oversight of HEAL. This
section of the audit identifies each of the contracts and, after explaining the nature,
circumstances and required signatures for each, recites, as to each: “[T]he executive
director signed this contract [or contract extension] but did not obtain the approval
10 The same result obtains with respect to plaintiff’s complaints regarding the audit’s statement
noting that some Board members did not receive annual ethics training and that attendance at Board
meetings was poor, that HEAL had failed to obtain financial audits in the past, and that plaintiff
received salary performance increases. None of these statements could be understood by a
reasonable person as intending a defamatory meaning to this plaintiff. (Contrary to plaintiff’s
protestation, there is absolutely no language in the audits that could be construed as suggesting that
plaintiff improperly gave himself the salary increases. The audit simply states: “[W]e noted that the
executive director has received salary performance increases of 7.6% in 2014, 4% and a subsequent
2% increase in 2015, and a 3% increase in 2016.”). A similar conclusion results with respect to the
“embargoed emails” plaintiff claims were distributed indiscriminately by the Auditors’ office. The
emails–which alert to the LLA’s upcoming public release of audits–do not contain any reference to
plaintiff, identifying only the agency itself, and not any of its staff or management. A reasonable
person reading these emails would not understand them as intending a defamatory meaning to this
plaintiff.
22

and required signature authority of the LDH undersecretary, obligating LDH and the
state without proper authority.” Plaintiff maintains that these statements accuse him
of illegal conduct and, at the very least, diminish his status in the eyes of the public
and, thus, are defamatory per se.
Whether or not one or more of these statements regarding the execution of
professional service contracts “without proper authority,” and “in circumvention of
state purchasing oversight controls” and “in violation of state purchasing regulations”
can be construed as attributing criminal conduct to plaintiff, we have no difficulty
concluding that they are objectively capable of having a defamatory meaning. While
there is no imputation in the statements that plaintiff lacked integrity or acted
immorally or unethically or with the requisite mens rea to constitute the crime of
malfeasance,11 the allegations nevertheless call into question plaintiff’s professional
competence and reputation, and can reasonably be viewed as having the effect of
lowering plaintiff in the estimation of the community.
Of course, the determination that words are capable of a defamatory meaning
does not end our inquiry in this case, for, as we have pointed out, not all defamatory
statements are actionable. A statement of opinion relating to matters of public
concern that does not contain a provably false factual connotation is entitled to full
constitutional protection. Romero v. Thomson Newspapers (Wisconsin), Inc., 94-
1105, p. 7 (La. 1/17/95), 648 So.2d 866, 870 (citing Milkovich v. Lorain Journal
11 Malfeasance in office is committed when a public officer or employee intentionally refuses to
perform any duty lawfully required of him or intentionally performs any such duty in an unlawful
manner. La. R.S. 14:134. As we explained in State v. Petitto, 10-0581 (La. 3/15/11), 59 So.3d
1245, 1254, the statute requires that the act or failure to act must be intentional on the part of the
public officer or employee. Mere inadvertence or negligence, or even criminal negligence, will not
constitute a violation of the statute.
23

Co., 497 U.S. 1, 20 (1990)). This principle has its origin in oft-quoted language from
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974):
Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction
not on the conscience of judges and juries but on the competition of
other ideas. But there is no constitutional value in false statements of
fact.
Drawing from the Gertz language, this court has declared “that the First
Amendment freedoms ... affords [sic], at the very least, a defense against defamation
actions for expressions of opinion.” Mashburn, 355 So.2d at 885. From this
declaration has evolved the rule that if a statement expresses an opinion, unless the
opinion implies a false and libelous fact, a defamation action will not succeed.
Romero, 94-1105 at 8, 648 So.2d at 870; Bussie v. Lowenthal, 535 So.2d 378, 381
(La. 1988); Fitzgerald, 98-2313 at 12, 737 So.2d at 717. This, as the court has
explained, is because falsity is an indispensable element of any defamation claim, and
a pure statement of opinion, which is based totally on the speaker’s or writer’s
subjective view, can neither be true nor false. Bussie, 535 So.2d at 381.
Admittedly, the determination of whether a statement is an assertion of fact or
a mere expression of opinion is somewhat “difficult to state in abstract terms.”
Mashburn, 355 So.2d at 885. As a practical matter, however, “the crucial difference
between statement of fact and opinion depends upon whether ordinary persons
hearing or reading the matter complained of would be likely to understand it as an
expression of the speaker’s or writer’s opinion, or as a statement of existing fact.”
Id. As the court explained in Mashburn:
The opinion may be ostensibly in the form of a factual statement if it is
clear from the context that the maker did not intend to assert another
objective fact but only his personal comment on the facts which he had
stated. An expression of opinion occurs when the maker of the
comment states the facts on which his opinion of the plaintiff is based
24

and then expresses a comment as to the plaintiff’s conduct,
qualifications or character; or when both parties to the communication
know the facts or assume their existence and the comment is clearly
based on the known or assumed facts in order to justify the comment.
Id.
Whether a statement constitutes a constitutionally protected assertion of
opinion is a question for the court to resolve. Fitzgerald, 98-2313 at 11, 737 So.2d
at 716; Mashburn, 355 So.2d at 887. Resolution of the issue depends on the facts
of each particular case and “upon the circumstances in which the statement was made,
and the reasonable inferences which may be drawn from a statement of opinion will
vary depending upon the circumstances of the case.” Fitzgerald, 98-2313 at 13, 737
So.2d at 718.
With these precepts in hand, we consider separately the portions of the audits
which plaintiff identifies as defamatory, keeping in mind that each statement must be
considered in the context of the entire report.
The first statement plaintiff points to is the comment in the section of the audit
addressing HEAL’s bonding activity; more specifically, the sentence which reports
that “[d]uring the House of Representatives Health and Welfare committee meeting
on May 24, 2016, the HEAL executive director testified that HEAL had completed
a YMCA project last year, but that statement was inaccurate.” (Emphasis supplied.)
This statement is immediately followed by a recitation of the facts on which that
statement is based: “In July 2015, the State Bond Commission conditionally approved
the issuance of $6 million in revenue refunding bonds to provide for the acquisition
and construction of the Greater New Orleans YMCA’s flagship location. However,
as of the date of this report, these bonds have not been issued because the YMCA is
still searching for a location for its new facility.” Plaintiff does not dispute that the
25

facts recited are true; rather he takes issue with the characterization of his testimony.
Given the circumstances surrounding the statement, we have no difficulty concluding
that ordinary persons reading it would be likely to understand it as an expression of
the auditor’s opinion. Indeed, the statement has all the earmarks of opinion: the
auditor states the facts on which his opinion is based and expresses a comment as to
plaintiff’s conduct. The word “accuracy” is, by nature, a subjective term. No
undisclosed facts are implied. In the context of the audit, the statement characterizing
plaintiff’s testimony as “inaccurate” is an expression of pure opinion.
The second statement(s) plaintiff identifies derive from the section of the audit
titled: “HEAL management executed contracts that circumvented state purchasing
oversight controls and violated state purchasing regulations.” Directly following this
statement, the audit explains:
During our review of professional services expenses, we identified
contracts signed only by the HEAL executive director and not approved
by LDH’s undersecretary, which circumvented state purchasing
oversight controls and violated state purchasing regulations. During
the time period of our review, HEAL was statutorily under the oversight
of the LDH undersecretary. While HEAL was authorized to determine
the necessity of contracting for professional services, the undersecretary
of LDH’s Office of Management and Finance had the sole authority to
solicit for bids and execute such contracts. The results of our review of
those contracts are as follows:
The audit then proceeds to identify four contracts–a consulting contract with
SSA Consultants, a legal services contract with Kinney, Ellinghausen, Richard &
DeShazo, an accounting services contract with Luther Speight & Company, and a
lobbying services contract with Southern Strategy Group. As to each of the contracts,
the audit documents the facts surrounding the confection of each contract, the terms
thereof, the approvals/signatures required for each, and the corrective action taken to
cure the deficiencies/missing approvals once the auditors brought those deficiencies
26

to the attention of the HEAL Board. Thus, for example, with respect to the consulting
contract, the audit recites:
During fiscal year 2015, HEAL attempted to amend a consulting
contract with SSA Consultants (SSA) to extend the original contract
terms from a one-year contract totaling $19,500 to a three-year contract
totaling $172,000. LDH did not approve this contract amendment, as
the dollar amount of the contract required that the agency follow a
competitive Request for Proposals process. Subsequently, HEAL
created a new contract with the same consulting agency for a three-year
term totaling $172,000. The state Office of Contractual Review (OCR)
did not approve this contract because it was classified as a professional
services contract rather than a consulting contract. Despite not
receiving approval from LDH and OCR, HEAL’s executive director
executed the contract as an LDH contract, with his signature only,
and without the required competitive bid. Documentation provided
to us by LDH showed that the department notified the executive director
each time the contract was denied that the contract was for consulting
services that exceeded $50,000, and thus required a competitive award
process. As of June 30, 2016, a total of $50,671 has been paid on this
contract. In addition, as of June 30, 2016, there was an additional
$54,427 of outstanding invoices owed to the consultant for work
performed through fiscal year 2016.
Because HEAL was not compliant with state requirements regarding the
execution of the contract, the Commissioner of Administration has the
option to either ratify and affirm the contract if it is in the best interests
of the State or terminate the contract and compensate the consultants for
actual expenses incurred for services performed prior to termination.
Once we brought this issue to the attention of the HEAL Board and
SSA, SSA informed us that they would no longer perform services under
this contract or any other business with HEAL.
A similar analysis is offered as to each of the three remaining identified
contracts.12 For example, as regards the legal services contract, the audit reports:
An amendment to one of the legal services contracts with Kinney,
Ellinghausen, Richard & DeShazo, extending the contract to a term of
four years, was not approved by the LDH undersecretary, the Attorney
General, or the Joint Legislative Committee on the Budget (JLCB) as
required. Contracts for legal services, and subsequent amendments,
require the approval of the Attorney General; however, no such approval
was obtained on this amendment. Contracts of more than three years but
no more than five years require approval of the JLCB; however, no such
approval was obtained. Again, the executive director signed this
12 The full text of each of these paragraphs appears at pages 5-6, supra.
27

contract extension but did not obtain the approval and required
signature authority of the LDH undersecretary, obligating LDH and
the state without proper authority. Once we brought this issue to the
HEAL Board’s attention, HEAL revised the contract amendment to
involve only an extension of the dollar amount, an increase from
$65,000 to $150,000, but not the length of the original contract. This
revised amendment was subsequently approved by the Attorney General
and the LDH undersecretary as required.
When this section of the audit is read in its entirety, we believe that ordinary
persons reading it would likely understand that the statements suggesting that
plaintiff “circumvented state purchasing oversight controls and violated state
purchasing regulations,” thereby “obligating LDH and the state without proper
authority” are simply opinions voiced by the Auditor based on the facts documented.
Indeed, as evidenced by the examples provided above, the audit articulates the facts
on which the audit’s conclusions are based, spelling out precisely the basis for the
conclusions drawn. There is no suggestion of an undisclosed, or implied, defamatory
fact. And, significantly, plaintiff does not allege that any of the underlying facts
recited are false. In fact, he does not dispute signing the documents along with the
third party contractors, or that the requisite approvals are missing; he merely disputes
the efficacy of the contracts. As a result, none of the facts recited are provably false.
Clearly, an ordinary person reading the audits, we believe, would understand
the language alleged by plaintiff to be defamatory simply conveys the Auditor’s
professional judgments or opinions based on the facts disclosed to the Auditor (and
reported in the audits) during the audit process.13 This is true for the remaining
statements alleged by plaintiff to be defamatory: the statement that it “appears” that
13 Our analysis is not altered by the language in the one page summaries that accompanied each of
the audits. The summaries simply repeat the conclusions, or opinions, of the Auditor and reference
and incorporate the full audits; therefore, they must be considered in that context and not in isolation.
Moreover, the word “findings” in the context of an audit is a term of art, and its use in that context
does not convert an obvious opinion into a statement of fact.
28

HEAL used services for lobbying, “possibly” in violation of state law; and the
statement that plaintiff was paid $215.73 for travel reimbursement “in violation of
state travel regulations.” In each of these instances, the audit reports the facts on
which the Auditor’s judgment or opinion is based. In the instance of lobbying
services, in particular, the use of the words “appears” and “possibly” underscores the
subjective nature of the assessment. In the instance of travel reimbursement, the audit
states the basic facts. Plaintiff does not dispute that he received reimbursement for
travel within the City of New Orleans, which was HEAL’s domicile. Whether that
reimbursement complies with state law is a matter of professional judgment, or
opinion.
Based on the above analysis, we find that none of the statements in the audits
identified by plaintiff as objectionable are actionable, defamatory statements. Rather,
the statements are opinions, or conclusions, of the auditors based on disclosed facts
and, as such, are not provably false. The opinions expressed do not imply the
existence of false defamatory facts. As a result, they are entitled to full constitutional
protection, Romero, 94-1105 at 7, 648 So.2d at 870, and the defendants are entitled
to summary judgment in their favor.
As the Supreme Court noted nearly sixty years ago, where public issues are
concerned, speech “should be uninhibited, robust, and wide-open, and ... it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials.” New York Times, 376 U.S. at 270. That precept rings
especially true in this case, where the Louisiana Legislative Auditor is charged by
statute with the obligation to “call attention to those matters required by governmental
auditing standards, including reportable conditions, failure to comply with laws and
regulations, and such additional matters that may be included in a management
29

letter.” La. R.S. 24:516(A)(2).14 In other words, it is the role and the duty of the
Auditor to examine the facts and offer a professional judgment based on the disclosed
facts as to any problems that might have been uncovered in the operations of the state,
its agencies, or political subdivisions after reviewing those facts. Where, as here, the
audit report articulates all the facts and then offers a finding or conclusion based on
those disclosed facts, that finding or conclusion is a statement of opinion, which
cannot form the basis of a defamation claim. Otherwise, as the Legislative Auditor
argues, the utility of the office, and the public debate surrounding government affairs,
will be significantly diminished.
CONCLUSION
For the foregoing reasons, the judgments of the court of appeal and the district
court are reversed. Defendants’ motion for summary judgment is granted, and the
plaintiff’s case is dismissed with prejudice.
REVERSED; SUMMARY JUDGMENT GRANTED
14 Of course, a different analysis obtains where private citizens and private affairs are involved. See,
e.g., Costello v. Hardy, supra. This case involves public officials and matters of public concern.
Moreover, the defendants, governmental entities, are entitled to the protection of the New York
Times standard. Davis v. Borskey, 94-2399, p.10 (La. 9/5/95), 660 So.2d 17, 23 n.8.
30

SUPREME COURT OF LOUISIANA
No. 2020-CC-01175
JACOB JOHNSON
VS.
DARYL PURPERA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS LOUISIANA LEGISLATIVE AUDITOR, STATE OF LOUISIANA,
THROUGH LOUISIANA LEGISLATIVE AUDITOR
On Supervisory Writ to the 19th Judicial District Court, Parish of East Baton
Rouge
HUGHES, J. concurs in part and dissents in part.
While I agree with most of the majority opinion, I find troubling the bold
statement that “The executive director was paid $215.73 in violation of stat e travel
regulations.” This statement, specific in person and amount, is easily perceived as a
statement of fact, even though it is in the greater context of the audit, and states
wrongful conduct that could amount to an ethical, if not a criminal, violati on. The
statement would be safe if preceded by “it appears” or “in our opinion,” but it is not.
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SUPREME COURT OF LOUISIANA
No. 2020-CC-01175
JACOB JOHNSON
VS.
DARYL PURPERA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS LOUISIANA LEGISLATIVE AUDITOR, STATE OF LOUISIANA,
THROUGH LOUISIANA LEGISLATIVE AUDITOR
On Supervisory Writ to the 19th Judicial District Court,
Parish of East Baton Rouge
GRIFFIN J., dissents and assigns reasons.
As the majority opinion correctly notes, this case turns on whether the
statements made by D efendant, Daryl Purpera (in his official capacity) , were
defamatory. Three questions arise when considering whether statements were
defamatory. The first is whether the communication was capable of conveying the
particular meaning or innuendo ascribed to it by plaintiff. The second is whether that
meaning is defamatory in character. The third is whether the communication,
capable of defamatory meaning, was so understood by its recipient. There is no
dispute that the first two questions are left for the court to decide; nor that the third
is left to the trier of fact . Sassone v. Elder , 626 So. 2d 345, 352 (La. 1993) ;
RESTATEMENT (SECOND) OF TORTS § 614 (1977). The majority excludes
consideration of the third question by the trier of fact because it finds that the words
complained of were not defamatory as a matter of law.
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Words can be defamatory in a number of ways. At issue here is defamation
per se.1 Words which expressly or implicitly accuse another of criminal conduct, or
which by their very nature tend to injure one’ s personal or professional reputation,
even without considering extrinsic facts or surrounding circumstances, are
considered defamatory per se. Costello v. Hardy, 03-1146, p. 13-14 (La. 1/21/04),
864 So. 2d 129, 140 . A defendant does not need to claim that a plaintiff violated a
specific statute; they need only accuse him or her of conduct which is criminal.
Kennedy v. Sheriff of E. Baton Rouge, 05-1418, p. 5 (La. 7/10/06), 935 So. 2d 669,
675. In the case sub judice, plaintiff, Jacob Johnson, pointed out several statements
that can be seen as amounting to perjury, theft, or malfeasance in office:
During the House of Representatives Health and Welfare committee
meeting on May 24, 2016, the HEAL executive director testified that
HEAL had completed a YMCA project last year, but that statement was
inaccurate. In July 2015, the State Bond Commission conditionally
approved the issuance of $6 million in revenue refunding bonds to
provide for the acquisition and construction of the Greater New Orleans
YMCA’s flagship location. However, as of the date of this report, these
bonds have not been issued because the YMCA is still searching for a
location for its new facility.

“HEAL has not funded a construction project since 2004.”

“Heal had no transition plan in place and found itself with no email
services and no way to pay its employees or its bills.”

During our review of supporting documentation, we identified 58 dates
where the executive director requ ested reimbursement for mileage
within his official domic ile of New Orleans. The mileage
reimbursement requests ranged from one to 29 miles. According to state
travel regulations, employees may not be reimbursed for travel within
their domicile unless they have obtained an authorization for routine
travel as a regular and necessary pa rt of the employee’s duties. We
reviewed the executive director’s annual travel authorization forms and
approved reimbursement forms. However, we did not note any specific
mention of authorization for travel within domicile. The executive
director was paid $215.73 in violation of state travel regulations.

1 In contrast, defamation by innuendo applies to statements that regard a private individual and
private affairs. Fitzgerald v. Tucker , 98 -2313, p. 13 (La. 6/29/99), 737 So. 2d 706, 717. The
statements and facts in this case are obviously matters of public concern because they deal with
compliance with state law; and statements regarding “compliance with the law [are] a matter of
public concern.” Walker v. Board of Regents of University of Wisconsin System , 300 F. Supp. 2d
836, 861 (W.D. Wisc. 2004) (collecting sources).
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While recognizing that these statements can be read as falsely alleging
criminal conduct, the majority finds that, in context, no reasonable person of
ordinary intelligence and sensitivity could read them in such manner. The majority
places no limits on its “in context” theory.
The majority also finds that the D efendant’s statements about the YMCA
project cannot be read as an allegation of perjury because the defendant used the
word “inaccurate.” Thus, “accuracy” is a purely subjective opinion-based term and
not a factual allegation of criminal conduct. I respectfully disagree. Because I would
find the statements at issue were capable of conveying allegations of criminality and
were defamatory in character, I would affirm the district court’s denial of summary
judgment.
Additionally, the majority advances a policy argument that should summary
judgment not be granted “the utility of the office [of the Legislative Auditor] and the
public debate surrounding government affairs, will be significantly diminished.” I
am concerned, however, about the opposite issue – citizens whose reputations are
damaged by government actors. Surely our First Amendment was not intended to
grant government actors carte blanche power to defame their citizens and leave them
without recourse.2
Finally, based on the facts in this case and the evidence presented, I do not
believe this case to be in a posture for summary judgment.

2 Official capacity su its are suits against the government entity. Will v. Michigan dept. of Sta te
Police, 491 U.S. 58, 71 (1989). G overnment entities do not enjoy the same First A mendment
protections afforded to citizens. Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94, 139 (1973) (Stewart, J., concurring) (“The First Amendment protects the
press from governmental interference; it confers no analogous protection on the government”).

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