LEGAL CORNER: Does Louisiana law provide whistleblower protection for public employees?

LAKE CHARLES, La. (KPLC) - Legal Corner answers viewers’ civil legal questions.

QUESTION: Is there a law in Louisiana that provides whistleblower protection for public employees?

ANSWER: Yes, there is a law in Louisiana that provides whistleblower protection for public employees.

La.R.S. 42:1102(18) defines “public employee” as follows:

• (a) “Public employee” means anyone, whether compensated or not, who is:
• (i) An administrative officer or official of a governmental entity who is not filling an elective office.
• (ii) Appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof.
• (iii) Engaged in the performance of a governmental function.
• (iv) Under the supervision or authority of an elected official or another employee of the governmental entity.
• (b) However, “public employee” shall not mean a person whose public service is limited to the following: (i) Periodic duty in the National Guard pursuant to 32 U.S.C. 502.
• (ii) A contract to provide attest services as a certified public accountant. (iii) Volunteering as described in R.S. 29:735.3.1(A).
• (c) A public employee shall be in such status on days on which he performs no services as well as days on which he performs services. The termination of any particular term of employment of a public employee shall take effect on the day the termination is clearly evidenced.

Louisiana law protects public employees who report information which they reasonably believe is a violation of any provision of law, or any other acts of impropriety related to the scope or duties of public employment, to their agency heads, the Louisiana Board of Ethics, or any person or entity of competent authority or jurisdiction.

Any public employee who reports a potential violation shall be free from discipline or reprisal from his employer.

This law - La.R.S. 42:1169 - is enforced by the Louisiana Board of Ethics.

A public employee who is wrongfully suspended, demoted, or dismissed because of the reporting of any act of wrongdoing shall be entitled to reinstatement of his employment, as well as the receipt of any lost income or benefits.

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La.R.S. 42:1169 — Freedom from reprisal for disclosure of improper acts

A. Any public employee who reports to a person or entity of competent authority or jurisdiction information which he reasonably believes indicates a violation of any law or of any order, rule, or regulation issued in accordance with law or any other alleged acts of impropriety related to the scope or duties of public employment or public office within any branch of state government or any political subdivision shall be free from discipline, reprisal, or threats of discipline or reprisal by the public employer for reporting such acts of alleged impropriety. No employee with authority to hire, fire, or discipline employees, supervisor, agency head, nor any elected official shall subject to reprisal or threaten to subject to reprisal any such public employee because of the employee’s efforts to disclose such acts of alleged impropriety.

B.(1) If any public employee is suspended, demoted, dismissed, or threatened with such suspension, demotion, or dismissal as an act of reprisal for reporting an alleged act of impropriety in violation of this Section, such employee shall report such action to the board.

(2) An employee who is wrongfully suspended, demoted, or dismissed shall be entitled to reinstatement of his employment and entitled to receive any lost income and benefits for the period of any suspension, demotion, or dismissal.

C. The board shall provide written notice of the commencement of an investigation of a report of a violation of this Section to the agency head of the employee, or if the agency head is the defendant, then to an agency head of the governmental entity that supervises the agency, or if none, then to the governing authority of the governmental entity not less than ten days prior to the date set for the investigation. If the board determines, following an investigation, that it shall offer a consent opinion or conduct a public or private hearing to receive evidence and determine whether any violation of this Section has occurred, the board shall provide written notice of the hearing or consent opinion to the agency head of the employee, or if the agency head is the defendant, then to an agency head of the governmental entity that supervises the agency, or if none, then to the governing authority of the governmental entity not less than sixty days prior to the date set for the action by the board. The employee’s agency shall cooperate in every possible manner in connection with any investigation conducted by the board. The agency shall be considered to be an indispensable party to any investigation, hearing, or consent opinion and may have legal counsel, cross-examine witnesses, call witnesses, and present evidence on its behalf.

D. Any employee with the authority to hire, fire, or discipline employees, supervisor, agency head, or elected official who violates this Section shall be subject to the same fines and penalties provided for other violations of this Chapter. In addition, if the board, following a public hearing, finds there is probable cause to believe that a person has violated a criminal law of this state, pursuant to R.S. 42:1156, the board shall forward a copy of its findings to the district attorney of the parish in which the violation occurred for appropriate action. Thereafter, notwithstanding any other provision of this Chapter, such district attorney shall have access to all records of the board relative to such findings.

E. Upon notification by the employee, the employee’s agency, the defendant, or the defendant’s agency that the employee has commenced a civil action in a district or federal court or with a federal agency with adjudicatory authority over employment complaints against his agency pursuant to R.S. 23:967(B) or other relevant state or federal statutes at any time prior to the board’s final determination as to whether a violation of this Section has occurred, the board shall stay any action pending before the board until a final order in the civil or adjudicatory action is issued, and the prescriptive period provided for in R.S. 42:1163 for action shall be suspended while such civil or adjudicatory action is pending and shall resume when such final order is issued. The final order of the court in the civil action or agency in an adjudicatory action, except if the action is dismissed by the plaintiff, shall resolve all matters the employee has pending before the board regarding this Section.

F. Each agency head shall ensure that a notice containing an explanation in plain language of the rights of employees under this Section is posted and maintained at some convenient and conspicuous point in each building where more than ten public employees are employed. The specific content of this notice shall be determined by the board.

QUESTION: How is child custody decided in Louisiana?

ANSWER: All decisions about the legal and physical custody of children in any Louisiana divorce must be based on what would be in the child’s/children’s best interest(s). Judges will consider several factors when they make custody decisions. See La.C.C. art. 134.

La. C.C. art. 134. Factors in determining child’s best interest

A. Except as provided in Paragraph B of this Article, the court shall consider all relevant factors in determining the best interest of the child, including:

• (1) The potential for the child to be abused, as defined by Children’s Code Article 603, which shall be the primary consideration.
• (2) The love, affection, and other emotional ties between each party and the child.
• (3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
• (4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
• (5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
• (6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
• (7) The moral fitness of each party, insofar as it affects the welfare of the child.
• (8) The history of substance abuse, violence, or criminal activity of any party.
• (9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
• (10) The home, school, and community history of the child.
• (11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
• (12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party.
• (13) The distance between the respective residences of the parties.
• (14) The responsibility for the care and rearing of the child previously exercised by each party.

B. In cases involving a history of committing family violence, as defined in R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132, including sexual abuse, as defined in R.S. 14:403(A)(4)(b), whether or not a party has sought relief under any applicable law, the court shall determine an award of custody or visitation in accordance with R.S. 9:341 and 364. The court may only find a history of committing family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.

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