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Case No. 15-30565
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________

LASHAWN JONES; ET AL,
Plaintiffs
v.
MARLIN N. GUSMAN, Sheriff, Orleans Parish,
Defendant-Third Party Plaintiff - Appellee
v.
CITY OF NEW ORLEANS,
Third Party Defendant - Appellant
_________________________________________

Appeal from the United States District Court, Eastern District of Louisiana
Case No. 12-00859, the Honorable Lance M. Africk, United States District Judge
APPELLANT’S BRIEF
Sharonda R. Williams, #28809
City Attorney
Gregory J. Feeney
Assistant City Attorney, #35123
1300 Perdido Street
City Hall – Room 5E03
New Orleans, Louisiana 70112
Telephone: (504) 658-9800
Facsimile: (504) 658-9868
Harry Rosenberg, #11465
Bryan Edward Bowdler, #32097
Phelps Dunbar LLP

Canal Place   365 Canal Street,
Suite 2000
New Orleans, Louisiana 70130-6534
Ralph Capitelli, #3858
Capitelli & Wicker LLP
1100 Poydras Street, Suite 2950
New Orleans, Louisiana 70163
Counsel for Appellant, Third-Party
Defendant, the City of New Orleans

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CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the Judges of this Court may evaluate possible disqualification or
recusal.
INTERESTED PARTIES
1. Marlin Gusman, Sheriff, Orleans Parish, Appellee
2. Freeman Rudolph Matthews, Counsel for Appellee
3. Timothy R. Richardson, Counsel for Appellee
4. Blake J. Arcuri, Counsel for Appellee
5. Inemsit  U.  O’Boyle,  Counsel  for  Appellee
6. James McClendon Williams, Counsel for Appellee
7. Thomas Allen Usry, Counsel for Appellee
8. The City of New Orleans, Appellant
9. Sharonda R. Williams, Counsel for Appellant
10.Christy Schinka Harowski, Counsel for Appellant
11.Gregory J. Feeney, Counsel for Appellant
12.Honorable Lance M. Africk, Judge, Eastern District of Louisiana

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STATEMENT REGARDING ORAL ARGUMENT
The City of  New  Orleans  (“the  City”)  respectfully requests the opportunity
to present oral argument in this case because oral argument will assist this
Honorable Court in understanding the importance of reversing the  district  court’s
denial of the   City’s   Motion   to   Invalidate   Contract   or   Alternatively   to   Terminate  
Contract. Oral argument will also allow all parties an opportunity to address any
issues of law or fact that may concern the Court.

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TABLE OF CONTENTS
Certificate of Interested  Persons  …………………………………………..…….…ii
Statement Regarding Oral Argument  ………………………………………….….iii
Table of Authorities  ……………………………………………………….......…..vi
Statement  of  Jurisdiction…………………………………………………………...1
Standard of Review………………………………………………………..……….1
Issues  Presented  for  Review............………………………………..………………1
Statement  of  the  Case……..............………………………………..………………2
I.

Course  of  Proceedings  Below……………………………………………3

II.

Statement  of  Facts………………………………………………………..5

Summary of the Argument..............………………………………..……..………..9
Law  and  Argument………..............………………………………..…..…....……..9
I.

THE DISTRICT COURT ERRONEOUSLY HELD THAT § 15:703
ALLOWS
THE
OPSO
TO
BIND
THE
CITY
INTO
CONTRACTS……………………………………………………………….9
A. The City is the sole entity with authority to enter into a contract with a
health care provider for Orleans Parish Prison…………………………10
B. The contract negotiated by the OPSO entirely ignores basic Louisiana
contract law……………………………………………………………..14

II.

THE DISTRICT  COURT’S  ORDER  FAILED  TO  ADDRESS THAT THE
CCS CONTRACT   CIRCUMVENTED   THE   CITY’S   HOME   RULE  
CHARTER…………………………………………………………………15
A. The City cannot be bound to a contract unless the proper procedures are
followed. ………………………………………………………………..15
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B. The   OPSO’s   position   that   the   New   Orleans Home Rule Charter is
“wholly  and  absolutely  irrelevant  to  the  instant  litigation”  is  inconsistent  
with the terms of the contract in dispute and the law…………………...16
III.

THE  DISTRICT  COURT’S  ORDER  VIOLATES  ADDITIONAL  
FEDERAL AND STATE LAWS………………………………………….18
A. The  district  court’s  order  violates  the  Prison  Litigation  Reform  Act…...18
B. The costs of the OPSO’s  contract will far exceed the statutory limitation
placed on the City for compensating contractors that provide prison
health care services……………………………………………………..20

Conclusion ………………………………………………………………………..21
Certificate of Service  ………………………………………………………..……22
Certificate of Compliance  ………………………………………………...………23

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TABLE OF AUTHORITIES
CASES
Amiss v. Dumass, 411 So. 2d 1137 (La. App. 1 Cir. 1982),
writ denied, 415 So. 2d 940 (1982)………………………………………....5, 10
Frew v. Janek, 780 F.3d 320 (5th  Cir.  2015)……………………………………….1
Hoskins v. City of Orlando 51  F.2d  901  (5th  Cir.  1931)………………………….10
Jones v. St. Tammany Parish Jail,  4  F.  Supp.  2d  606  (E.D.  La.  1998)……….12, 13
Landry  v.  E.  Baton  Rouge  Parish  Sheriff’s  Office,
2015 WL 1033767 (La. App. 1 Cir. Mar. 9, 2015)……...…………………….13
Orleans Parish Sch. Bd. v. Quatrevaux, 154 So. 3d  612  (La.  App.  4  Cir.  2014)…17
Quatroy  v.  Jefferson  Parish  Sheriff’s  Office,
2009 WL 1380196 (E.D. La. May 14, 2009)…………….……………………13
Serigny v. Lafourche Parish Government ex rel. Randolph,
547  Fed.  Appx.  582  (5th  Cir.  2013)……………......……………………….....13
Wade v. Gusman, 2006 WL 4017838 (E.D. La. Oct. 17, 2006)………………......12
LOUISIANA CIVIL CODE
La. Civ. Code arts. 9-13…………………………………………………………...11
La. Civ. Code art. 1985……………………………………………………………14
La. Civ. Code art. 1977……………………………………………………………14
La. Civ. Code art. 2989…………………………………………………………....14

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STATUTES
28 U.S.C. § 1292…………………………………………………………………...1
18 U.S.C. § 3626(a)(1)(B)…………………………………………………….......19
La. Rev. Stat § 15:703………………………………………………………..passim
La. Rev. Stat. § 15:704…………………………………………………………....11
La. Rev. Stat. § 15:705………………………………………………………..20, 21
La. Rev. Stat. § 13:1375…………………………………………………………..13
La. Rev. Stat. § 13:5539(C)…………………………………………………….5, 10
La. Rev. Stat. § 39:1305………………………………………………………......16
La. Rev. Stat. § 39:1315…………………………………………………………..16
La. Rev. Stat. § 14:134………………………………………………………........16
NEW ORLEANS HOME RULE CHARTER
New Orleans Home Rule Charter § 6-308, ¶1-2……………………………….3, 15
OTHER AUTHORITIES
La. Atty. Gen. Op. No. 09-0003…………………………………………………..13

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STATEMENT OF JURISDICTION
Pursuant to 28 U.S.C. § 1292, this Honorable Court has jurisdiction to
review the erroneous interlocutory order made by the district court.
STANDARD OF REVIEW
The district court’s  order improperly granted authority to the Orleans Parish
Sheriff’s   Office (“OPSO”) because of the Consent Judgment.

The Consent

Judgment was intended to ensure that OPSO follows the law; the Consent
Judgment should not be a tool that OPSO relies upon to ignore laws it chooses to
ignore. The underlying questions of law are reviewed de novo. Frew v. Janek, 780
F.3d 320, 326 (5th Cir. 2015).
ISSUES PRESENTED FOR REVIEW
1. Whether the contract at issue is invalid because La. Rev. Stat § 15:703 does
not authorize the OPSO to unilaterally contract for a health care provider at
the Orleans Parish Prison when the City has that sole responsibility under
the law?
2. Whether the contract is invalid because it was not executed pursuant to the
City’s   Home   Rule   Charter, which recognizes the division of authority
between the City and the OPSO regarding  control  of  the  City’s budget?
3. Whether  the  district  court’s  order  violates  the  Prison  Litigation  Reform  Act?

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4. Whether the contract is invalid because it requires the city to pay more for
health care than is permitted under the law?
5. Whether the contract is invalid or should be terminated under its express
terms?
STATEMENT OF THE CASE1
This appeal concerns the clear legal division of power between the City of
New   Orleans   (“the   City)   and   the   Orleans   Parish   Sheriff’s   Office   (“the   OPSO”).
The OPSO is a political subdivision that does not have authority to unilaterally
bind the City into contracts. Yet, the district court ordered the City to pay for a
contract executed solely by the OPSO and Correct Care Solutions (“CCS”).
ROA.8934-35. That order must be reversed.
The instant dispute arises out of the ongoing effort to create a parish prison
in New Orleans that provides constitutional custodial care for inmates. Due to past
practices of officials responsible for maintaining the Orleans Parish Prison
(“OPP”),  the conditions at the OPP became so deplorable that federal intervention
was required. A federal consent judgment (“the  Consent  Judgment”) was signed to
address the inadequacies. ROA.4796. The Consent Judgment requires the OPSO
to create guidelines and standards to monitor health care services at the OPP, but

1. All  references  to  the  record  on  appeal  will  be  abbreviated  as  “ROA.  __”  corresponding  to  the  
appropriate page number in the Fifth Circuit record on appeal.
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the Consent Judgment does not allow the OPSO to ignore state law or to
circumvent the  City’s  budgetary  procedures. See ROA.4820-31.
The  City’s  goal  is  to  establish  a permanent framework that will ensure longterm, constitutional care for prisoners at OPP. The Consent Judgement, as well as
state and federal law, provides a roadmap for this framework, and the City urges
that adhering to state and federal law is vital for efficiently and permanently
improving the conditions at the OPP.

By law, before the City enters into a

contract, it must be afforded the opportunity to review the contract pursuant to its
Home Rule Charter to ensure that the contract is financially responsible. See New
Orleans Home Rule Charter § 6-308, ¶1-2. That did not happen in this case.
Instead,   OPSO   ignored   the   City’s requests to participate in the contract
negotiations  and  blatantly  ignored  the  City’s  and  the  Office  of  Inspector  General’s  
(“OIG’s”) request that these services be publically procured.
I. Course of Proceedings Below
An essential aspect of the Consent Judgment   addresses   the   “shocking  
deficiencies   in   OPP’s   medical   and   mental   health   care   system.”

ROA.4738.

Louisiana Revised Statute §15:703 provides that the City shall either appoint a
physician to provide medical services at OPP, or alternatively, that the City may
enter into a contract with a health care provider to provide health care services at

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OPP. Despite this clear delegation of authority to the City, the OPSO unilaterally
signed a contract with CCS for health care services at the OPP. ROA.8386-413.
Because   the   OPSO   has   no   direct   budgetary   responsibility   to   the   City’s  
taxpayers, it had no incentive to negotiate a fair market contract.

Thus, the

existence of the over-priced CCS contract represents a short-sighted (and illegal)
solution to the issues at OPP.

To allow the City to carry out its state law

obligations, the City filed a Motion to Invalidate, or Alternatively to Terminate, the
CCS contract. ROA.8359-73.
The district court essentially agreed with all the arguments put forth by the
City: (1) the district court agreed with the  City’s rationale to terminate the contract
to “pursue  a  more  financially  responsible  contract  while  ensuring  that  OPP  inmates  
receive   medical   care   consistent   with   constitutional   standards.”

ROA.8926-27,

(2) the district court agreed that the OPSO excluded the City from any meaningful
participation in the selection and negotiation process. ROA.8927, and (3) the
district court refrained from holding that the City was estopped from challenging
the  OPSO’s  actions. ROA.8930.
Nevertheless, the district court ordered the City to pay for the CCS contract.
ROA.8934-35.

The district court strained to reach that ruling by stating La.

R.S. §15:703 did not expressly preclude the OPSO from contracting with CCS to
comply with its independent duty to provide medical and mental health care to

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inmates. ROA.8930-31. The   district   court’s   focus   is   on   the   goal   of   ensuring  
adequate health care at the jail. The City has the same goal, and the City, as the
entity who pays the costs, should not be shut out of the process. The district court
has recognized that the OPSO is able to terminate the CCS contract if another
medical and mental health care contract is entered into between the City and
another provider. ROA.13329. The  district  court’s  acknowledgment  that  the  City  
can enter into a contract and that the contract between CCS and OPSO could then
be terminated demonstrates that the City has the authority to contract.

That

authority is not granted to two entities under the law. Nonetheless, the district
court’s order currently remains intact. Because the OPSO did not have authority to
bind the City into a contract, the district court erred in ordering the City to pay for
the CCS contract.
II. Statement of the Facts
The legal framework governing the OPP requires the City to fund a
sufficient jail and requires the OPSO to operate the jail in a sufficient manner.
Compare La. R.S. 13:5539(C) with Amiss v. Dumass, 411 So. 2d 1137, 1141 (La.
App. 1 Cir. 1982), writ denied, 415 So. 2d 940 (1982). Thus, to address the
shortcomings of health care services at the OPP, and   upon   the   district   court’s  
strong suggestion that the parties cooperate, the City endeavored to work with the
OPSO to secure the best possible contract for health care services. A Request for

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Proposals   (“RFP”) was drafted by the OPSO; in spirit of cooperation, the City
offered   input   based   on   data   provided   by   the   City’s   nationally   recognized   jail  
consultants.    The  OPSO  ignored  the  City’s  input. ROA.8363. The RFP was issued
on March 17, 2014, and over the following months, the City repeatedly sought to
participate in the selection and contracting process. Id. The expectation was that a
final contract would be presented to the City for approval, as required by law.
The OPSO, however, excluded the City from any meaningful participation.
While the City asked for equal representation on the selection committee, only the
City’s  Health  Director,  Charlotte  Parent,  was  allowed  to  serve  on  the  five  member  
committee. ROA.8363. Despite requests by the City for an open and transparent
selection process, the OPSO refused to hold the selection meetings in public.2
Finally, the City informed  the  OPSO  that  the  City’s  Home  Rule  Charter  required
that funds be appropriated for a contract before it could be executed. ROA.8694.
Notwithstanding the questions raised by the City (See ROA.8379-80) and the
Office of Inspector General, the OPSO indicated that it did not have to comply
with   the   City’s   procurement   policy,   and   the   OPSO proceeded independently to
negotiate a contract with CCS behind closed doors.

2. The Office of Inspector General notified the OPSO of  the  OIG’s  concerns  related  to  the  
procurement methods that the OPSO used to select the health care provider. See ROA.8378.
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By August, 2014, the City became very concerned about the pending
negotiations between the OPSO and CCS, and the   City’s Chief Administrative
Officer, Andy Kopplin, advised the OPSO:
The City is committed to working with your office, the Court, and
consent decree monitor as you work to improve custodial care at the
Orleans Parish Prison. Because of requests the City has received from
your office for increased funding, including for this contract, I wanted
to communicate how critical it is for your office to secure substantial
cost concessions through negotiations of the three year contract with
Correct Care which is now proposed to cost as much as $32.9M.
See ROA.8375-77. CAO Kopplin further pointed out that CCS had contracts with
prisons that had populations similar to that of OPP, for only $9.13 and $12.46 per
inmate per day, and he urged the OPSO to   “aggressively   negotiate”   CCS   down  
from their initial proposed price of $14.97 per inmate per day. Id.
OPSO met with CCS on August 5 and 6, 2014, but the discussions pertained
only to the technical terms of the agreement, not the financial terms.

See

ROA.8381-82. Moreover, because proposals to move inmates to an additional
facility had been submitted in July 2014—after the original RFP—many new
details had to be incorporated into the original CCS proposal. Id. Charlotte Parent
attended these two negotiation sessions, id., but the OPSO instructed her to
“[r]emember  this  is  to  observe  [negotiations].” ROA.8384. Before a final contract
was proposed, Ms. Parent and the City were completely shut out. ROA.8382.

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On October 15, 2014, the lead Consent Judgment monitor informed the City
that the OPSO had executed a contract with CCS—without having followed the
City’s  Home  Rule  Charter  requirements. When the OPSO finally shared a copy of
the contract with the City on October 17, 2014, the financial ramifications became
clear. ROA.8698. The total value of the contract had jumped from the original
proposal of $32.9 million dollars over a three year period, to $83.1 million dollars
for a five year period. The cost for the first year of the contract is $15.4 million.
Years two through five will cost $16.1 million, $16.7 million, $17.2 million, and
$17.3 million dollars respectively, and an option exists for two additional years.
The City Council has made multiple attempts to examine the CCS contract
before appropriating additional funds to make the payments ordered by the district
court, but the OPSO and CCS have not been receptive to these efforts. While the
monitor stated that the City should pay well-documented funding requests
(ROA.8368), the OPSO has failed to provide the City Council with the information
it would need to appropriate tax payer dollars for an $83 million dollar
expenditure. To date, the City Council has not appropriated funds to support this
contract. In the interim, however, the City has appropriated an additional $7.1
million to the OPSO, which was necessitated because the OSPO nearly exhausted
the entirety of its $28.6 annual budget for 2015. Further, the City is moving
forward with obtaining a health care provider pursuant to the proper legal

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procedures and transparent government procurement practices.

The City has

appealed the   district   court’s   order   to   obtain   a   final   judgment that the OPSO’s  
contract with CCS is not enforceable against the City.
SUMMARY OF ARGUMENT
The district court erred when it held that the CCS contract executed by the
OPSO must be paid by the City. State law provides that the City is the sole entity
with authority to contract for health care services at the OPP. Additionally, the
City’s   Home   Rule Charter has clear guidelines addressing how the City must
execute a contract for services. The OPSO does not have authority to circumvent
these procedures and unilaterally bind the City into a contract.
Further, the district   court’s   order   violated federal law by ordering
prospective relief that requires a government official to exceed state law without
meeting the relevant standards of the Prison Litigation Reform Act. For these
reasons,  the  City  requests  that  the  district  court’s  order  be  reversed, and that this
Court declare the CCS contract invalid and unenforceable.
LAW AND ARGUMENT
I.

THE DISTRICT COURT ERRONEOUSLY HELD THAT LA. R.S.
§ 15:703 ALLOWS THE OPSO TO BIND THE CITY INTO
CONTRACTS.
The   district   court   denied   the   City’s   motion   to   terminate the CCS contract

based on the tenuous position that there is not a law that prevents the OPSO from

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contracting for health care services at the OPP. ROA.8928-31. This rationale, if
upheld, creates a slippery slope that potentially grants the OPSO a blank check to
utilize public resources for any purpose the OPSO sees fit. That is clearly not the
purpose behind the well-established dichotomy between the City and the OPSO—
the OPSO has the authority to control the daily management and operation of the
jail, while the City controls the funding of the jail. Compare La. R.S. 13:5539(C)
with Amiss v. Dumass, 411 So. 2d 1137, 1141 (La. App. 1 Cir. 1982), writ denied,
415 So. 2d 940 (1982).
A. The City is the sole entity with authority to enter into a contract with a
health care provider for Orleans Parish Prison.
Under the category of funding a sufficient jail, the City has the sole authority
to enter into a contract with a health care provider. “Municipal   corporations  are  
established for purposes of local government, and, in the absence of specific
delegation of power, cannot engage in any undertakings not directed immediately
to   the   accomplishment   of   those   purposes.” Hoskins v. City of Orlando 51 F.2d
901, 904 (5th Cir. 1931) (quoting Hill v. City of Memphis, 134 U.S. 198, 203
(1890). The  City’s  authority  is  clearly delegated in La. Rev. Stat. § 15:703, which
provides:
A) The governing authority of each parish shall appoint annually a
physician who shall attend the prisoners who are confined in parish
jails whenever they are sick. His salary shall be fixed by the
governing authority.

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B) In lieu of appointing a physician, the governing authority of any
parish may enter into a contract with a health care provider . . . to
provide requisite health care services, as required in this Section.
The  term  “health  care  provider”  .  .  .  means  a  person,  partnership,  
limited liability partnership, limited liability company, corporation,
facility, or institution licensed . . . to provide health care services or
professional services as a physician and qualified as such in
accordance with R.S. 40:1299.42. . . .
D) The sole responsibility of the governing authority of each parish
which is mandated by the provisions of this Section with respect to
providing health care service for prisoners shall be the appointment
of a physician and the payment of the salary of that physician or its
contractual obligation with a health care provider selected in
accordance with this Section. (emphasis added).
The district court ignored the language set forth in La. R.S. § 15:703(D), which
expressly  provides  that  it  is  the  City’s  sole  responsibility  to  appoint  a  physician  or  
contract for health care at the jail. See La. Civ. Code arts. 9-13 (explaining state
law principles for interpreting the meaning of laws). The City repeatedly informed
the district court that it needed to have meaningful participation in the contracting
process, but the OPSO used the existence of the Consent Judgment to rebuff the
City’s  efforts  to  exercise  its  responsibility  under  La.  R.S.  §  15:703.    Now,  because  
of  the  district  court’s  ruling,  the  City  is  being  forced  to  pay  the  CCS  contract  while  
it attempts to properly procure another affordable contract, potentially placing the
City at risk of duplicative financial obligations.
The OPSO is the statutory keeper of the public jail for Orleans Parish. See
La. R.S. § 15:704. Under this category of responsibilities, the OPSO controls

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“employees  of  the  jail,  and  the  daily  management  and  operation  of  the  jail.” See
Wade v. Gusman, 2006 WL 4017838 (E.D. La. 2006). This supervisory role does
not, however, include the authority to contract for health care providers. It only
includes oversight and management of the day-to-day operations at the OPP. The
Consent Judgment reflects this division of power, and it does not delegate any
additional authority to the OPSO.
The district   court’s   order   cites   to   the   OPSO’s independent duty to provide
medical and mental health care to inmates in custody. ROA.8930-31. This duty,
however, relates  only  to  the  OPSO’s  daily  supervisory  role  of  health  care  at  OPP  
and the requirement that the OPSO not refuse requests from inmates for
treatment—but, again, the OPSO has no authority to contract for a health care
provider. See Jones v. St. Tammany Parish Jail, 4 F. Supp. 2d 606, 613 (E.D. La.
1998). Although the district court’s order suggested the   City’s   motion   was   an  
attempt to displace its obligation to fund medical and mental health care at the
OPP, it is undisputed that the City continues to fund the OPSO for health care
services, and the City has never represented that it would shirk its legal
responsibility and cease funding health care services. Instead, because the City
complied  with  the  district  court’s  directive  to  work  with  OPSO  to  resolve  an  issue,  
the City is now being punished for its willingness to cooperate. In fact, the City
specifically earmarked $7.6 million of  the  OPSO’s 2015 annual appropriations for

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medical services.3 Neither of the cases cited by the district court allow for the
OPSO to force the City to appropriate additional funds if the OPSO exhausts the
original funds. See Jones v. St. Tammany Parish Jail, 4 F. Supp. 2d 606 (E.D. La.
1998); Landry   v.   E.   Baton   Rouge   Parish   Sheriff’s   Office, No. 14-733, 2015 WL
1033767 (La. App. 1 Cir. Mar. 9, 2015).
The Consent Judgment contains approximately twelve pages of provisions
related to medical and mental health care. ROA.4820-4831. Nowhere in those
twelve pages is the OPSO required to hire medical staff by executing a contract on
behalf of the City. And under the law, the OPSO cannot do so. The discretion to
control public resources belongs singularly to the City—the elected legislative and
executive branches of City government. The intent of the statutory provisions
establish that the sole authority to determine if a contract for a health care provider
should be executed remains with the City, not the OPSO.4 Thus, the OPSO
ventured outside its legal authority by entering into a long-term, high-priced

3. See 2015 Annual Operating Budget, City of New Orleans available at
http://www.nola.gov/getattachment/Mayor/Budget/2015-Adopted-Budget-Book.pdf/, at p. 533.
4. See  Quatroy  v.  Jefferson  Parish  Sheriff’s  Office, 2009 WL 1380196 (E.D. La. 2009); see also
Serigny v. Lafourche Parish Government ex rel. Randolph, 547 Fed. Appx. 582 (5th Cir. 2013).
To the limited extent that the OPSO has any statutory authority regarding health care, La. Rev.
Stat. 13:1375 permits it to  “employ”  one physician with a maximum salary of $5,000 per year—
a far cry from the $15-17 million dollars per year in the CCS Agreement. Moreover, the Sheriff
may not enter into contracts that exceed the  Sheriff’s  term in office. See La. Atty. Gen. Op. No.
09-0003. Therefore, Sheriff Marlin Gusman,   who’s   term   ends   in   May   2018,   exceeded his
authority when he executed the CCS Agreement for health care services lasting from five to
seven years and worth over $80 million dollars.
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contract with CCS absent approval by the City and prior to the City Council
appropriating funds.
B. The contract negotiated by the OPSO entirely ignores basic Louisiana
contract law.
The   district   court’s   order   overlooked   basic principles of contract law.
Pursuant to Louisiana Civil Code article 1985,  “[c]ontracts  may  produce  effects for
third parties   only   when   provided   by   law.”5 Only   when   “the   principal[]   confers  
authority on another person, the mandatary, to transact one or more affairs for the
principal”  may  a  party  enter  into  a  contract  on  behalf  of  another. La. Civ. Code
art. 2989. The City did not confer authority to the OPSO to contract with CCS.
The district court sidestepped this point by stating that the lack of authority for
OPSO to contract on behalf of the City did not implicate the validity of the CCS
contract (ROA.8931-32, fn. 51). Such an assertion is contrary to every basic
contract principle. The district   court’s   order still forces the City to pay for the
contract. Because the City never conferred authority to the OPSO to enter into the
CCS contract, the effect created by the  district  court’s  order  is  unlawful.  

5. See also La. Civ. Code art. 1977 (even if the OPSO sought to obligate the City, the City
should not be liable for damages related to the OPSO’s  unauthorized  contract).
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THE DISTRICT  COURT’S  ORDER  FAILED  TO  ADDRESS  THAT
THE CCS CONTRACT   CIRCUMVENTED   THE   CITY’S   HOME  
RULE CHARTER.

A. The City cannot be bound to a contract unless the proper procedures are
followed.
The   City’s   Home   Rule Charter contains certain requirements that must be
met before the City can be bound to a contract. Section 6-308, paragraph 1
requires that all contracts by the City shall be signed by the Mayor after approval
by the Department of Finance and the Law Department.

Section 6-308,

paragraph 2 more precisely requires that the Department of Finance must approve
the availability of funds prior to the Mayor signing a contract on behalf of the City.
It   is   clear   that   City   contracts   “shall   not   extend   beyond   the term for which an
appropriation  to  finance  such  obligations  shall  have  been  made.” See New Orleans
Home Rule Charter § 6-308, ¶2. The  OPSO’s  contract with CCS did not meet any
of these requirements. No appropriations were ever made, and the Mayor never
signed the contract. It was only signed by Sheriff Marlin Gusman—who has no
legal authority to sign contracts on behalf of the City. ROA.8413.
The express contract terms provide that the contract can be terminated if
funds are not appropriated:
9.1 TERMINATION FOR LACK OF APPROPRIATIONS. It is
understood and agreed that this AGREEMENT shall be subject to
annual appropriations by City of New Orleans.

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9.1.1 Recognizing that termination for lack of appropriations may
entail substantial costs for CCS, the OPSO shall act in good faith and
make every effort to give CCS reasonable advance notice of any
potential problem with funding or appropriations.
9.1.2 If future funds are not appropriated for this AGREEMENT, and
upon exhaustion of existing funding, the OPSO may terminate this
AGREEMENT without penalty or liability, by immediately providing
a written notice to CCS.
See ROA.8406. The inclusion of these provisions highlights that the CCS contract
does not adhere to the Charter requirements for expending public funds for
contracts. If every City agency or entity that receives funding from the City is
allowed to procure services at exorbitant prices in the shadows of a closed
procurement process, the City would not have the ability to manage its own budget
and the budget requirements of the Home Rule Charter and the Louisiana Local
Government   Budget  Act   (“LLGBA”)6 would be rendered meaningless. For this
precedential  reason,  it  is  important  that  the  district  court’s  order  be  reversed.
B. The  OPSO’s  position  that  the  New  Orleans  Home  Rule  Charter  is  “wholly  
and  absolutely   irrelevant   to   the   instant   litigation”   is  inconsistent  with   the  
terms of the contract in dispute and the law.
In the proceedings below, the OPSO argued that the New Orleans Home

6. La.  R.S.  39:1305   provides  “the  total   of  proposed  expenditures  shall  not   exceed  the  total   of  
estimated  funds  available  for  the  ensuing  fiscal  year.”    La.  R.S.  39:1315  also  provides  that  “any  
public official or officer that violates, either knowingly or intentionally, the provisions of R.S.
39:1305(E), either through the adoption of an original budget or through amendment to a legally
adopted budget, shall be a violation of R.S. 14:134 and shall be subject to the penalties contained
therein.”      La.   R.S.   14:134 sets forth penalties for malfeasance in office, including five years
imprisonment, payment of a fine, and restitution. See La. R.S. 14:134.

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Rule   Charter   is   “wholly   and   absolutely   irrelevant   to   the   instant   litigation.”
ROA.8649. Such an assertion proves that OPSO intends to circumvent the law
under guise of the Consent Judgment. Further, that position is inconsistent with
the terms of the contract in dispute and the law. The OPSO acknowledged that the
City Council is vested with all legislative authority for the City, while at the same
time arguing that the OPSO (which is funded by City dollars) should not be
subjected to the budgetary process conducted by the legislative branch. If OPSO
truly  believed  that  it  should  not  be  subjected  to  the  City’s  budgetary  process,  why  
did it agree to include a provision in the CCS contract that its effect is contingent
on Council appropriations?
The OPSO’s   position   was premised on the incorrect assumption that
political subdivisions of the State can avoid all legislative oversight by the City
even when those political subdivisions rely on the City for funding. The OPSO
cites to no state law supporting such a position that is contrary to all principles of
transparency and government best practices.

Again, accepting this argument

would  impose  the  quintessential  unfunded  mandate  and  write  the  proverbial  “blank  
check”  that  must  not  be  allowed.
Orleans Parish Sch. Bd. v. Quatrevaux, which the OPSO cited supports the
City’s  position.    In  the  Orleans Parish School Board (“OPSB”)  case,  the  Louisiana  
Fourth Circuit Court of Appeal reasoned that the Office of Inspector General

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(“OIG”)   did   not   have   authority to issue subpoenas to the OPSB because (1) the
OPSB is an independent political subdivision of the State and (2) OPSB does not
receive money through or for the benefit of the City. See 154 So. 3d 612, 620 (La.
App. 4 Cir. 2014). The OPSO, unlike OPSB, certainly receives money from the
City. Indeed, the OPSO admits that the City provides funding for a number of
costs at the jail. In fact, throughout this litigation, OPSO has contended that the
City bears the responsibility of paying all costs of the jail. There is no question
that the OPSO must comply with the budgetary process conducted by the City
Council. The  City  has  repeatedly  advised  the  OPSO  that  “any  contract  with  CCS  
requires City Council approval and an appropriation of funds by the City Council
to   pay   for   such   contract.”

See ROA.8706 and ROA.8704-07.

See also

ROA.8379.80.
III.

THE   DISTRICT   COURT’S   ORDER   VIOLATES   ADDITIONAL  
FEDERAL AND STATE LAWS

A. The  district  court’s  order  violates  the  Prison  Litigation  Reform  Act.
As discussed above, neither state law, nor the Consent Judgment, grant the
OPSO the authority to contract on behalf of the City. Thus, the district   court’s  
order greatly expanded the power of the OPSO. The Consent Judgment required
the OPSO “to   ensure   constitutionally   adequate treatment of prisoners’   medical  
needs.”    ROA.4830. Now, the district court has indicated that the OPSO can bind
the City into financial obligations without going   through   the   City’s   legal
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procedures for appropriations. This order violates the Prison Litigation Reform
Act, 18 U.S.C. 3626, et seq.,   which   prohibits   a   federal   court   from   ordering   “any  
prospective relief that requires or permits a government official to exceed his or
her  authority  under  State  or  local  law”  unless  three  conditions  are  met:
(i) federal law requires such relief to be ordered in violation of state or local
law;
(ii) the relief is necessary to correct the violation of a Federal right; and
(iii) no other relief will correct the violation of the federal right.
18 U.S.C. § 3626(a)(1)(B). Because these requirements were not met, the district
court’s  order  must  be  reversed.
There is no federal law that requires the City to fund a contract unlawfully
entered into by the OPSO. Further, because the district court recognized that the
City  may  enter  into  a  more  cost  efficient  contract  with  a  health  care  provider  “that  
will allow the Sheriff to comply with the Consent   Judgment”   (ROA.8935), it is
clear that an alternate (and legal) option exists for obtaining a health care provider
at the OPP. The City is currently in the process of obtaining such a contract. It
follows that the City cannot be required to pay CCS pursuant to the invalid OPSO
contract,  and  the  City  requests  that  this  Court  reverse  the  district  court’s  order.

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B. The total costs   of   the   OPSO’s   contract will far exceed the statutory
limitation placed on the City for compensating contractors that provide
prison health care services.
Finally, the contract signed by the OPSO is a five-year contract depleting
limited City resources by more than $80 million dollars. This value far exceeds the
statutory limitation placed on the City for compensating health care providers at
the OPP. Louisiana Rev. Stat. § 15:705 provides that:
a parish governing authority shall not be liable to pay to a health care
provider for health care services provided to a prisoner in an amount
greater than the lesser of the actual amount billed by the health care
provided, one hundred ten percent of the Medicare rate of
compensation,   or   the   health   care   provider’s   actual   costs,   unless   the  
rate of compensation for such health care services is subject to a
contractual agreement entered into between the parish governing
authority and the health care provider. (emphasis added).
Because the City, as the governing authority of Orleans Parish, did not execute a
contract with CCS for health  care  services,  the  OPSO’s  contract is void ab initio.
Aside from the illegality of the OPSO contract, the health care costs should be
lower than those agreed to by the OPSO.

While the OPSO contract costs

approximately $20.00 per inmate per day, Jefferson Parish recently signed a health
care agreement costing about $8.94 per inmate per day. ROA.8428-30. In further
contrast, CCS committed within the last year to provide health care services for
$12.46 per inmate per day at a prison in Indiana that is similar to the OPP. Id.
Such disparities underscore why the law dictates that the City is the proper agency
to review, negotiate, and sign such contracts. The City provided this information
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to OPSO during the contract negotiations, but OPSO ignored the information and
proceeded to negotiate behind closed doors.
Although the district court considered this argument premature, its order
plainly stated that the City must pay the CCS contract. Again, there is no legal
support for this position. When the governing authority of a parish has not entered
into a contract with a health care provider, La. Rev. Stat. § 15:705 sets the cap for
how  much  the  governing  authority  is  allowed  to  pay.    The  district  court’s  order  will  
force the City to disregard that statutory cap.
CONCLUSION
The OPSO overstepped its authority by signing a contract with CCS for
health care services at the Orleans Parish Prison. State law provides that the City
is the sole entity with authority to execute that type of contract. Thus, as a matter
of law, the City cannot be forced to pay the CCS contract, and the City respectfully
requests that this Court reverse the district  court’s  order.

Respectfully submitted,

/s/Sharonda R. Williams
Sharonda R. Williams, #28809
City Attorney
Gregory J. Feeney, #35123
Assistant City Attorney
1300 Perdido Street

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City Hall – Room 5E03
New Orleans, Louisiana 70112
Telephone: (504) 658-9800
Facsimile: (504) 658-9868
Harry Rosenberg, #11465
Bryan Edward Bowdler, #32097
Phelps Dunbar LLP
Canal Place   365 Canal Street, Suite 2000
New Orleans, Louisiana 70130-6534
Telephone: 504-566-1311
Telecopier: 504-568-9130
Ralph Capitelli, #3858
Capitelli & Wicker LLP
1100 Poydras Street, Suite 2950
New Orleans, Louisiana 70163
Telephone: 504-582-2425
Counsel for Appellant, Third-Party
Defen dant, the City of New Orleans

CERTIFICATE OF SERVICE
I certify that on this 31st day of August, 2015 I have filed the Appellants’  
brief via e-filing, which will send an electronic copy to all counsel of record.

/s/Sharonda R. Williams
SHARONDA R. WILLIAMS

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CERTIFICATE OF COMPLIANCE WITH RULE 32
1.

This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B)(i) because the brief contains approximately 5,176 words.

2.

This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in a proportionally spaced typeface using
Microsoft® Word in Times New Roman 14 Point font.
/s/Sharonda R. Williams
Attorney for the Appellant,
The City of New Orleans
August 31, 2015

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