J. Schuyler Marvin, 26th Judicial District Attorney v. Robert Berry, And Cypress Black Bayou Recreation And Water Conservation District

Supreme Court of Louisiana
April 25, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
J. SCHUYLER MARVIN, 26TH JUDICIAL
DISTRICT ATTORNEY
VS.
ROBERT BERRY, AND CYPRESS BLACK
BAYOU RECREATION AND WATER
CONSERVATION DISTRICT
No. 2023-C-00214
_ _
_ _ _ _
I
N RE: State of Louisiana, by and through Attorney General Jeff Landry, in his
official capacity - Applicant Other; Applying For Writ Of Certiorari, Parish of
Bossier, 26th Judicial District Court Number(s) C-162,928, Court of Appeal, Second
Circuit, Number(s) 54,230-CA;
_ _ _ _ _ _
April 25, 2023
Writ application granted. See per curiam.
Crichton, J., dissents, would grant and docket and assigns reasons.
Griffin, J., dissents and would grant and docket.
WJC
JLW
JDH
JTG
JBM
04/25/2023 "See News Release 020 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 2023-C-00214
J. SCHUYLER MARVIN, 26TH JUDICIAL DISTRICT ATTORNEY
VS.
ROBERT BERRY, AND CYPRESS BLACK BAYOU RECREATION AND
WATER CONSERVATION DISTRICT
On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Bossier
PER CURIAM
Writ granted. Defendant Robert Berry is a member of the board of
commissioners for the Cypress Black Bayou Recreation and Water Conservation
District, a political subdivision of the state. See La. R.S. 38:2603A. Berry is also
employed by the Water District as its executive director, a full-time, compensated
position. The district attorney for the Twenty -Sixth Judicial District filed this suit
seeking a declaratory judgment as to whether Berry’s dual positions with the Water
District violate Louisiana’s “Dual Officeholding and Dual Employment Law .” See
La. R.S. 42:61-66. The trial court granted summary judgment in favor of the
defendants, declaring Berry is not violating that law. The court of appeal affirmed.
The Dual Officeholding Law recognizes that public officials and employees
must “ perform the public business in a manner which serves to promote and
maintain in the general citizenry a high level of confidence and trust in public
officials.” See La. R.S. 42 :61A. This trust is “impaired when a public official or
employee holds two or more public offices or public jobs which by their particular
nature conflict with the duties and interests of each other.” La. R.S. 42:61A. In that
regard, the Dual Officeholding Law, in relevant part, prohibits the same person from
holding two public offices or jobs if the incumbent of one , alone or in conjunction
with others, has the power to appoint or remove the incumbent of the other:
04/25/23

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[N]o . . . offices or employments shall be held by the same person in
combination if any of the following conditions are found to pertain and
these prohibitions shall exist whether or not the person affected by the
prohibition exercises power in conjunction with other officers:

(1) The incumbent of one of the offices, whether or not in
conjunction with fellow officers, or employment has the power to
appoint or remove the incumbent of the other , except that local
governmental subdivisions may appoint members of the governing
body to boards and commissions created by them . . . .

La. R.S. 42:64A(1) (emphasis added).
Berry’s authority as a member of the Water District’s board of commissioners
is defined by law. T he Water District has “all powers necessary for it to carry out
the objects for which it was created ” and “shall be governed and controlled by a
board of five commissioners.” See La. R.S. 38:2603B(1) and 2604A. Given this
authority, Berry, in conjunction with his fellow commissioners, “has the power to
appoint and remove” the Water District’s executive director. The possession of this
power, whether exercised or not, implicates the public -trust concerns of the Dual
Officeholding Law and violates the prohibition of Subsection 42:64A(1). The
statute contains no language suggesting this violation is rectified by Berry abstaining
from the board’s selection and oversight of the executive director. Similarly, Berry’s
authority over the executive director, which is statutorily granted, cannot be divested
by a majority vote of the board.
The trial court erred in granting summary judgment declaring Berry’s dual
positions with the Water District do not violate the Dual Officeholding Law. The
summary judgment is reversed, and the case is remanded for further proceedings.
SUMMARY JUDGMENT REVERSED; CASE REMANDED.