by Clancy DuBos
The next showdown between Mayor Ray Nagin and the New Orleans City Council is likely to come over the issues of open meetings and the mayors power to award professional services contracts without public bids. Nagin is not going to come off looking like a reformer on this one, but Im not sure if he cares.
The Background By executive order and in response to pressure from good-government types, Nagin established a Selection Review Panel to advise him on the award of professional services contracts. By law, such contracts do not require public bids, and reformers have groused for years that the contracts are awarded purely on the basis of campaign contributions. In every administration in memory including Nagins theres a high correlation between professional services contracts and campaign contributions. Draw your own conclusions.
When Nagin first ran for mayor in 2002, the Bureau of Governmental Research and the media (including Gambit Weekly) pounded all major candidates into promising to form an independent review panel for such contracts. Nagin at first said yes, then no, then maybe. (That should have been a red flag.) Ultimately, he appointed a review panel that was stacked with his own people. That at least gave him the opportunity to say that he formed a review panel.
The Pushback Now, however, a new issue has arisen: the review panel established by Nagin may constitute a public body under Louisiana law and thus be subject to all the provisions of the state Open Meetings Law. If thats the case, the review panels meetings and deliberations must be open to the public and the press. Nagin says it aint so, but the Councils new outside legal counselors have rendered an opinion that says yes, its so. Worse yet for Nagin, the Council proposes to enact three ordinances underscoring the application of the state Open Meetings Law to the mayors and its own competitive selection processes and thats where the showdown will come.
Citing the state constitution, statutes and several state Attorney General opinions, the July 11 legal opinion by the firm of Herman, Herman, Katz and Cotlar states:
Good government requires three primary qualities: honesty, transparency and accountability. The public will rarely put its faith and/or trust in a government that it believes is acting in secrecy or is not accountable to the people. When there is transparency and openness and the executive branch, legislative branch and public have access to information, then and only then will there be public trust in government.
The five-page opinion goes on to note that the Legislature expressly requires that Louisianas Sunshine Law be construed liberally. Thus, in the absence of a specific, express exemption from the law, it applies to any gathering of any public body. Moreover, the opinion cites Attorney General opinions specifically holding that mayoral panels or committees established by executive order (as was done by Nagin) are public bodies under state law. One of the opinions concerns a 1989 committee established by then-New Orleans Mayor Sidney Barthelemy; the committee was deemed a public body whose meetings must be open to the public.
The Showdown If the Council passes an ordinance requiring Nagins panel to meet in the open, the mayor will have to make some tough calls. He could veto the ordinance and risk an override. Or he could abolish the panel and just award the contracts himself. Or he could take the matter to court.
If the issue goes to court, put your money on the Council. Louisiana courts have long applied the state Open Meetings Law as written liberally and in favor of openness. Nagin probably thought he was being cute by appointing his version of a Harrumph Committee to vet his professional services contracts, but in doing so he created a whole new problem for himself. Oh, what a tangled web we weave