RS 45:844.55

§844.55. Enforcement and appeal A. Before a person that is or is likely to have a substantial interest affected by a local government's violation of this Chapter may file an action in district court for violation of this Chapter, that person shall file a written complaint with the local government in accordance with this Section. B.(1) A local government that provides a covered service shall enact an ordinance establishing a procedure for the filing and resolution of complaints relating to the local government providing a covered service. (2) The procedure shall: (a) Permit any person described in this Section to file a complaint including: (i) An individual subscriber. (ii) A private provider that competes with the local government in the geographic boundaries of the local government. (b) Establish an expedited process that requires within forty-five days after the date the complaint is filed: (i) That a hearing be held, unless the parties to the proceeding waive the requirement of a hearing. (ii) The issuance of a final decision. (c) Provide that failure to render a decision within the time allotted shall be treated as an adverse decision for purposes of appeal. C. Appeal of an adverse decision from the local government may be taken to the district court for a de novo proceeding. D.(1) The Louisiana Public Service Commission shall, in accordance with its normal rulemaking procedures, adopt rules to define and govern equitable cost allocation, as well as safeguards to govern affiliate or inter-company transactions for purposes of application of R.S. 45:844.53(2). Rules adopted by the Louisiana Public Service Commission under authority of this Subsection are hereinafter referred to as "cost allocation and affiliate transaction rules". Cost allocation and affiliate transaction rules shall not be adopted or enforced which are inconsistent with any provision of this Chapter, including but not limited to R.S. 45:844.43(7) and R.S. 45:844.52(C)(3). Cost allocation and affiliate transaction rules shall provide for the protection of commercially sensitive marketing information disclosed by local government for purposes of this Subsection, and such protection may include but need not be limited to the submission of commercially sensitive marketing information under seal with limitations upon access to such information. Commercially sensitive marketing information disclosed by local government for purposes of this Subsection shall not be a public record. Compliance with cost allocation and affiliate transaction rules shall constitute per se compliance with R.S. 45:844.53(2). (2) For covered services within the jurisdiction of the Louisiana Public Service Commission, enforcement of cost allocation and affiliate transaction rules shall be by the Louisiana Public Service Commission. The Louisiana Public Service Commission shall also enforce the cost allocation and affiliate transaction rules for all other covered services; provided, however, that the Louisiana Public Service Commission may elect not to perform such enforcement by providing written notice to the legislative auditor within ninety days from the effective date of this Paragraph, in which case the legislative auditor shall enforce the cost allocation and affiliate transaction rules as provided in Paragraph 3 of this Subsection. With the exception of enforcement of the cost allocation and affiliate transaction rules as provided herein, the Louisiana Public Service Commission shall have no jurisdiction over advanced services and cable television services. When the Louisiana Public Service Commission performs the enforcement of other covered services as provided herein, the Louisiana Public Service Commission shall follow the procedures below: (a) The Louisiana Public Service Commission staff shall conduct an initial audit of a local government's compliance with the cost allocation and affiliate transaction rules following the first year of operations, and thereafter shall have the authority to conduct a periodic compliance audit as deemed appropriate based on its review of a local government's annual surveillance report and attest engagement. In connection with this annual audit, the local government is required to provide the commission staff with any backup information required and to respond to data requests and other requests for information propounded by the commission staff, which may include special counsel and outside consultants. The local government is to make its books and records available to the commission staff to facilitate the completion of such audit. (b) Notice of the issuance of the compliance audit report shall be published in the official commission bulletin. Any interested person, group of persons, or other entity shall have an opportunity to comment on the compliance audit report and a hearing, if deemed necessary, will be conducted prior to the commission staff's issuance of a final compliance audit report. The commission shall consider the compliance audit report and may accept the audit report as written, make modifications and order changes or other actions where it is deemed appropriate. (c) Each compliance audit conducted by the commission staff shall result in a final compliance audit report containing the results of the investigation. That report must contain specific findings and recommendations concerning whether local government is providing covered services in compliance with the cost allocation and affiliate transaction rules. (d) Any interested party may seek judicial review of a determination of compliance or noncompliance made by the Louisiana Public Service Commission under Subparagraph (c) of this Paragraph. Such judicial review shall be sought pursuant to the terms of R.S. 45:1192. The petition for judicial review shall be filed in the Nineteenth Judicial District Court, and the local government shall be made defendant. The challenged compliance audit report of the Louisiana Public Service Commission shall be presumed valid and correct, and the standard of review shall be confined to the record of the prior proceedings before the commission and the issue of whether the Louisiana Public Service Commission acted arbitrarily and capriciously in the issuance of the challenged compliance audit report. If the court sustains or upholds the challenged compliance audit report, the original petitioner for judicial review may seek a request for consideration of the district court determination directly to the Louisiana Supreme Court. (3) For covered services which are not within the jurisdiction of the Louisiana Public Service Commission, enforcement of cost allocation and affiliate transaction rules shall be in accordance with the following procedure: (a) A local government which provides covered services shall annually engage a certified public accountant selected from a list of auditors or accountants approved by the legislative auditor for an annual examination of compliance with the cost allocation and affiliate transaction rules as they pertain to covered services which are not within the jurisdiction of the Louisiana Public Service Commission. The certified public accountant engaged under authority of this Subparagraph is hereinafter referred to as the "auditor". (b) The auditor shall render a preliminary report of examination findings ("preliminary report") within ninety days of engagement which shall be released to the local government at an open meeting of the local governing authority and made available for public inspection thereafter in accordance with the provisions of the Louisiana Public Records Law. The clerk of the local governing authority shall be the custodian of the auditor's preliminary report. (c) For sixty days after release of the preliminary report, any interested person, group of persons, or other entity shall have the right to submit written comments upon the preliminary report ("public comments") to the clerk of the local governing authority, who shall become the custodian of such public comments. (d) Upon the lapse of sixty days after release of the preliminary report, the clerk of the local governing authority shall submit the preliminary report and all public comments submitted within the sixty-day comment period to the auditor and to the legislative auditor. (e) Not later than thirty days after receipt of the preliminary report and public comments, if any, from the clerk of the local governing authority, the legislative auditor, in consultation with the auditor, shall review the preliminary report and the public comments, if any, and make a final determination of compliance with the cost allocation and affiliate transaction rules as they pertain to covered services which are not within the jurisdiction of the Louisiana Public Service Commission. If the legislative auditor determines that the local government is in compliance with the cost allocation and affiliate transaction rules, such determination shall be in the form of a certificate of compliance signed by the legislative auditor and issued to the local government. If the legislative auditor determines that the local government is not in compliance with the cost allocation and affiliate transaction rules, such determination shall be in the form of a final report signed by the legislative auditor and issued to the local government, specifying the portions of the rules relied upon for the determination of noncompliance and the reasons for such determination. (f) Any interested person may seek judicial review of a determination of compliance or noncompliance made by the legislative auditor under Subparagraph (e) of this Paragraph. Such judicial review shall be sought within sixty days of the date of issuance of a certificate of compliance or a final report by the legislative auditor. The local government shall be made defendant, and venue of a suit for judicial review shall lie exclusively in the parish of domicile of the local government. In any suit for judicial review, the review shall be conducted by the court without a jury and shall be confined to the record of the prior proceedings before the auditor and the legislative auditor, including the preliminary report and supporting documentation, if any, the certificate of compliance and supporting documentation, if any, the final report and supporting documentation, if any, and the public comments, if any. The challenged certificate of compliance or final report of the legislative auditor shall be presumed valid and correct, and the standard of review shall be confined to the issue of whether the legislative auditor acted arbitrarily and capriciously in the issuance of the challenged certificate of compliance or final report. The burden of proof shall be upon the challenger of the certificate of compliance or final report, and a reviewing court may not substitute its judgment for that of the legislative auditor. If the court sustains or upholds the challenged certificate of compliance or final report, the court may in its discretion assess costs and reasonable attorney fees of the prevailing party against the losing party. (g) In conducting any part of the compliance audit authorized by this Paragraph, the auditor and/or the legislative auditor may seek, request, obtain, and/or utilize, and the Louisiana Public Service Commission may provide, such advisory or technical assistance as the auditor and/or the legislative auditor may deem necessary, convenient, or desirable. The absence of advisory or technical assistance from the Louisiana Public Service Commission, or the failure or refusal of the auditor and/or the legislative auditor to seek, request, obtain, or utilize such advisory or technical assistance, shall not invalidate a certificate of compliance or final report and shall not constitute arbitrary or capricious conduct on the part of the auditor or the legislative auditor. Acts 2004, No. 736, §1, eff. July 6, 2004; Acts 2008, No. 779, §1, eff. July 7, 2008. NOTE: Re Subsection D, see R.S. 44:4.1.