2008-1150 - Laserfiche WebLink

• TDVFD, a governmental agency in which he was a public employee. In simple terms, Dyer had an interest in receiving higher prices and TDVFD had an interest in paying lower prices. As with the IT case, the Dyer facts bear no resemblance to the Taylor Porter facts. In contrast to Dyer facts, neither Taylor Porter nor any of its attorneys are presently members or employees of the LSU Board of Supervisors or the LSU System. In the instant case, neither a conflict of interest nor improper private gain would be inherent in Taylor Porter's rendering legal services to LSU. As noted above, the potential professional conflict of interest will be resolved under the Rules of Professional Conduct for attorneys. Taylor Porter's private interest as a law firm to receive appropriate compensation from LSU (actually under complete control of LSU) for its services is not improper. The facts in the IT and Dyer case reflect classic examples of conflicts of interest leading to private gain prohibited in Code section 1111 (payment from non-public sources), section 1112 (participation in transactions involving the governmental entity), and section 1115 (prohibited gifts), among the more obvious sections. As noted earlier, the term "governmental function" is not defined in the Code. However, the IT opinion implicitly provides a definition: those services that the law requires be performed by a governmental agency for the public's benefit. See Black's Law Dictionary quoted above. Other supporting or incidental activities occurring within a given agency support the performance of the governmental function. The nature of a "governmental function" is such that • when a private entity engages in performing a "governmental function", it is much more susceptible to being involved in a conflict of interest than a private entity performing indirect support for others who are performing the governmental function. In our case, the particular governmental function assigned by law to LSU for the public's benefit is the provision of educational services for students studying to become physicians and the provision of health care for the benefit of the public. See La. Const. Art. 8, Sec. 5 E; La. R. S. 17: 3203 (3); La. R. S. 17:1519 et seq; and LSU By-Laws Arts. 1 & 7. The legal services to be provided by Taylor Porter will not provide a medical education or health care to the public; instead its legal services will indirectly support the LSU's performance of its legally mandated governmental function. The Board takes cognizance of the untold hundreds if not thousands of contracts between private entities and governmental agencies. The object of these contracts varies greatly. Some provide professional services (legal, accounting, architecture, landscape architect, medical, engineering, etc); some provide construction, renovation, or repairs of building, roads, equipment, etc; some provide social services, employment and management guidelines, insurance advice and policies, some provide products including consumables; the list is virtually endless. To hold that each of those private entities and their employees are public employees appears beyond the intent of the Legislature in adopting Sec. 1102 (18) (a). If the Legislature had intended that result, it would simply have provided in Section 1102 (18) (a) that any person who • provides a service or a product under contract to a governmental agency is deemed to be a "public employee."