BATON ROUGE – After the lawyer for former Legislative Fiscal Officer John Rombach said they would challenge an appellate court's dismissal of his defamation lawsuit against the state last month, local legal experts told the Louisiana Record that Rombach's case will be tough to prove given his public stature.
A panel of three judges from the First Circuit Court of Appeal ruled on Dec. 23 that although Rombach had amended his lawsuit twice, they did not find “material facts upon which to a cause of action may be based.” The panel included Circuit Judges Wayne Ray Chutz, John Michael Guidry and Guy Holdridge.
Soon after the ruling, Rombach’s attorney, Chris Alexander, told The Advocate that he and his client would take the case to the Louisiana Supreme Court
"He certainly has the right to address the courts if he thinks he is due that,” Edward Chervenak, a professor at the University of New Orleans, recently told the Louisiana Record. “He also has the right to appeal if he’s not satisfied with the appeals court ruling. We have that right as Americans."
The former fiscal officer filed the lawsuit in 2011 seeking damages from the Legislative Auditor’s Office, current and former legislative auditors, and legislative leaders after an adjudicatory ethics panel absolved him of charges filed against him by the Louisiana Board of Ethics in 2010.
Rombach’s lawsuit claims the defendants are responsible for causing the board of ethics to wrongfully investigate and file charges against him, which damaged his reputation to the point where he was unable to find employment.
Chervenak, who is also the director of the Survey Research Center Undergraduate Coordinator Department of Political Science at the University of New Orleans, said that the very nature of being a political figure opens one up to criticism.
“As a political figure, he’s subject to being criticized or potentially ‘defamed,' " Chervenak said. "And the standard for him to prove that is tougher than it is for a private citizen."
Dane Ciolino, a legal ethics expert and law professor at Loyola University New Orleans, agreed that it will be difficult for Rombach to succeed in his defamation suit because of his public profile.
“The logic is that when you’re a public official you put yourself out there for public criticism,” Ciolino told the Louisiana Record. “So you have to expect more attacks on your character.”
Ciolino explained that public figures have to establish actual malice to be successful in defamation lawsuits, whereas private citizens only have to prove negligence. “And malice is a lot harder to prove than negligence," Ciolino said.
In 2004, a report from the Legislative Auditor’s Office by Steve Theriot stated that Rombach had taken a retroactive pay raise, a car allowance and overtime pay without approval from the Joint Legislative Committee on the Budget. The activity raised in the report dated back to 2002, 2003 and 2004.
Rombach resigned in 2005 and charges were filed against him by the ethics board in 2006. In 2010, however, an adjudicatory ethics panel disagreed with the decision, stating it was common practice to award pay raises retroactive to employment anniversary dates. The panel also concluded that Rombach’s overtime pay and car allowance were not part of his salary, and therefore were not subject to approval by the budget committee.
Ciolino believes Rombach's chances with the state supreme court are very slim.
“It’s always very difficult to get the Louisiana Supreme Court to grant writ to review," Ciolino said. "So the odds are long to start for any litigant, and they’re particularly long for a public official who’s trying to sue someone for defamation."