Dear Mr. Stalder:
You have requested the opinion of this office concerning the legality of assistance provided by your office at local community functions. Specifically, you ask whether the Department of Public Safety Corrections may provide assistance in the following three instances, in light of the prohibition against the donation of public funds and property contained in LSA-Const. Art. VII, § 14 (1974).
1. May the Department provide staff to assist in crowd control in local public activities such as fairs, festivals, and parades?
2. May the Department allow local municipalities to utilize state-owned horses, and horse-drawn passenger vehicles (i.e. wagons and sleighs) in such public fairs, festivals, and parades?
3. May the Department send prison musical bands to perform in local fairs, festivals, and nursing homes?
Article VII, § 14 of the Louisiana Constitution (1974) states, in pertinent part:
§ 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.
Article VII, § 14 is violated whenever the state or its political subdivisions seek to give up something of value in the absence of a legal obligation to do so. Further, the expenditure must also be for a public purpose and create a public benefit proportionate to its cost. A public purpose and public benefit are presumed where the underlying legal obligation for the expenditure is created by the constitution, a statute, or an ordinance. See City of Port Allen vs Louisiana RiskManagement, 439 So.2d 399 (La. 1983).
In response to your first inquiry, the department may provide staff to assist in crowd control and implement security in the named public civic activities. This occurrence does not invoke constitutional concerns under Article VII, § 14. The department staff may be appointed as special agents, and directed to perform law enforcement functions, pursuant to LSA-R.S.15:825.2, which provides:
A. The secretary of the Department of Corrections shall be authorized at his discretion to appoint special agents. These agents shall be appointed from permanent status employees and may carry weapons exposed or concealed while in the performance of their duties in the same manner as law enforcement officers.
B. The secretary shall formulate and adopt appropriate rules and regulations governing the qualifications and duties of special agents. (Emphasis added).
In response to your second inquiry, again we find no impermissible donation where the department of corrections provides equipment as incidental to and in furtherance of a duty to provide police protection at civic events, as directed by the secretary of the department.
An additional benefit to the public occurs as a result of the department's participation in these activities, as such participation fosters a positive image of law enforcement personnel and encourages a harmonious relationship between the department of corrections and the public.
Finally, in response to your third inquiry, we find a legal duty exists allowing inmates to perform in recitals for local festivals, fairs, and nursing homes. LSA-R.S. 15:833(B)(3) authorizes the department to release inmates to participate in "performances of any organized vocal or instrumental group at any civic or charitable function; or religious services."
Should you have further questions in which we may provide assistance, please contact our office.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: ___________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:ams
Mr. Richard L. Stalder Secretary Department of Public Safety and Corrections P.O. Box 94304 Baton Rouge, LA 70804-9304
Date Received: September 16, 1994
Date Released:
KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL