# Opinion Number > Louisiana Attorney General Reports ยท July 2, 2003 URL: https://www.frixlaw.com/law-library/cases/3462114 ## Case - **Full name:** Mr. Michael G. Fanning - **Court:** Louisiana Attorney General Reports - **Decided:** July 2, 2003 - **Precedential status:** Published - **Opinion:** Opinion of the court - **Judges:** RICHARD P. IEYOUB - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3462114 ## Opinion text Dear Mr. Fanning: On behalf of the Jefferson Parish School Board (the A School Board ), you requested the opinion of this office concerning the legality of the School Board contracting with Educational Websites of America, L.L.C. ( A Ed Web ) 1 to market and sell advertising on the Jefferson Parish Public School System ' s (the A System ) web sites, as well as soliciting advertising at the System ' s baseball and football stadiums. You advised that the System has a web site that was created in-house. Each of the eighty-two (82) schools in the System has a web site. The web sites provide information on the schools generally and specifically relating to the current school year. The sites are accessible by the general public as well as the students and their parents or guardians. The Ed Web proposal calls for Ed Web to create a A Frontpage for the System ' s web site and for each of the school web sites. The company will solicit advertising for placement on each Frontpage, with the System and the company sharing the revenue from the advertising. Ed Web shall exclusively own the Frontpages and has the sole and exclusive right to sell advertising on all of the System ' s web sites and web pages to any advertiser it chooses 2 . The sale of the advertising is not subject to System approval. Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables. C.C. art. 448. Common things may not be owned by anyone, such as the air and the high seas. C.C. art. 449. Public things are owned by the state or its political subdivisions in their capacity as public persons, such as streets and public squares. C.C. art. 450. Public things and common things are subject to public use in accordance with applicable laws and regulations. Everyone has the right to fish in the rivers and the right to land on the seashore provided that he does not cause injury to the property of adjoining owners. C.C. art. 452. Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons. C.C. art. 453. Owners of private things may freely dispose of them under modifications established by law. C.C. art. 454. Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched. Incorporeals are things that have no body, but are comprehended by the understanding, such as the right of intellectual property. C.C. art. 461. Based upon the foregoing, it is the opinion of this office that the School Board ' s web is a incorporeal movable owned by the School Board in its capacity as a private person and thus the School Board may dispose of it in accordance with law. Our research has not disclosed any specific statute pertaining to the ability of a public body to lease its property, corporeal or incorporeal, for advertising purposes. R.S. 17:87.6 does authorize public school boards to sell, lease, or otherwise dispose of, at public or private sale, for cash or on terms of credit, any personal property which is not used and, in the judgment of the school board, is not needed in the operation of any school or schools within its jurisdiction. Thus, in order to lease the web page or the stadia walls, the web page or the stadia could not be in use by the School Board nor any of the schools and, in the judgment of the School Board, the web pages and the stadia would not be needed in the operation of any school or schools within its jurisdiction. As the web pages and the stadia are in use, we question whether the lease of the web page would comply with R.S. 17:87.6 , however, see the discussion in Coliseum Square Association v. City of New Orleans , 544 So.2d 351 (La. 1989), wherein the Court found that the City ' s determination that a street which was used daily by vehicles and pedestrians was no longer needed for a public purpose and could be leased to a private school. Any determination by the School Board could not be arbitrary or capricious. Coliseum Square , id. Of course, any transaction must comply with La. Const. Art. 7 , Sec. 14 , which provides in pertinent part as follows: (A). 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. . . La. Const. Art. VII , Sec. 14 (B) contains a list of exceptions to the prohibition found in Sec. 14(A), none of which appear to be pertinent to this situation. La. Const. Art. 7 , Sec. 14 (C) does provides for cooperative endeavors, as follows: Paragraph (C) of Section 14 authorizes public entities to engage in cooperative endeavors for a public purpose with other governmental agencies, public or private corporations, or individuals. However, Paragraph (C) supplements the prohibition against donations in Section 14(A). It does not create an exemption or exception from the general constitutional prohibition. The Louisiana Supreme Court has ruled that all cooperative endeavors authorized by Section 14(C), must also meet the general standard for the non-gratuitous alienation of public funds or property established by Section 14(A). See City of Port Allen v. La. Risk Management, et al. , 439 So.2d 399 (La. 1983). Despite the authorization of cooperative endeavors, Section 14(A) is, nevertheless, violated whenever the State seeks to give up something of value in the absence of a legal obligation to do so. In other words, only if the use of public funds or property is authorized by a valid legal obligation, will it be considered a constitutionally sanctioned cooperative endeavor. The requirement of a legal obligation to expend public funds or use public property is the threshold, but not the only predicate for the constitutionality of the expenditure or use. The expenditure or use must also be for a public purpose and create a public benefit proportionate to its cost. Op.Atty.Gen. Nos. 02-0113, 92-722, and 90-651. We do caution the School Board that if they allow advertising on their web sites and the stadia walls, they may have created a public forum for purposes of the First Amendment to the U.S. Constitution. See discussions in United States v. American Library Association , 2003 WL 21433656 , ___ S.Ct. ___ (June 23, 2003); Cornelius v. NAACP Legal Defense and Educational Fund, Inc. , 473 U.S. 788 , 105 S.Ct. 3439 , 87 L.Ed.2d 567 (1985); Good News Club v. Milford Central School , 533 U.S. 98 , 121 S.Ct. 2093 , 150 L.Ed.2d 151 (2001); Arkansas Educational Television Commission v. Forbes , 523 U.S. 666 , 118 S.Ct. 1633 , 140 L.Ed.2d 875 (1998); Diloreto v. Downey Unified School District Board of Education , 196 F.3d 958 (Aug. 4, 1999). There are also restrictions under Louisiana law. La. Const. Art. XI , Sec. 4 prohibits public funds from being used to urge any elector to vote for or against any candidate or proposition. R.S. 43:111.1 prohibits the use of public funds for advertisements containing the names of public officials. It also might be advisable to refrain from allowing access by the students to any of the internet advertisements while on school property. This office addressed the issue of radio broadcasts to be broadcasted during the A off periods of the school day in Op.Atty.Gen. No. 93-694. This office concluded: Although the broadcasting does not take place during the "instructional" time, it still involuntarily subjects children to a public forum. The children who are listening to the music, commercials and advertisements is decided exclusively by Star Broadcasting, Inc. . . . Therefore, the broadcasts can contain information that may not be educationally sound for the students. The law states that BESE is to have no control over the business affairs of a parish or city school board, however, BESE does have the duty to " supervise and control the public elementary and secondary schools " It is the opinion of this office that this supervisory duty is not limited to instructional time. Additionally, the use of the school building for radio broadcasting outside of regular school hours does not constitute an "academic purpose" as required by R.S. 17:81B. Several Attorney General opinions have dealt with the issue of whether a particular use of a school building is academically or educationally sound for the students. Trusting this adequately responds to your request, we remain Yours very truly, RICHARD P. IEYOUB Attorney General BY: ________________________________ MARTHA S. HESS Assistant Attorney General /MSH DATE RELEASED: July 2, 2003 MARTHA S. HESS, ASSISTANT ATTORNEY GENERAL 1 This office was furnished with a copy of the proposed contract and a revision thereto; however, you advised that you were not asking for an opinion on any of the terms of the contract, and accordingly, this opinion does not address any of the terms of the proposed contract. 2 The revised proposed contract provides that the Company shall not sell advertising to any person or company engaged in the business of selling alcohol or tobacco products and no advertising shall contain any text or images suggestive of pornography, obscenity or nudity or any other sexual content. No other restrictions were stated in the draft. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3462114. Public record. Not legal advice.