May 14, 2018 Via Hand Ms. Lora W. Johnson Clerk of Council City Hall - Room 11309 1300 Perdido Street New Orleans, LA 70112 Dear Ms. Johnson: Enclosed are the original and three copies of this letter and the accompanying letter to Councilmembers, Request that the Council of the City of New Orleans Order Rehearing on the Council?s Own Motion of Council Resolution 18-65. Please return one date?stamped copy of the enclosed documents to our courier for our records. Sincerely, Wm Monique Harden, Attorney Assistant Director of Law and Policy cc: Sunni LeBeouf City Attorney City of New Orleans 1300 Perdido Street New Orleans, LA 70112 sunni.lebeouf@nola. gov :3 City of New Orleans lo -3 Clerk of Council 1300 Perdido Street/Room 1E09 New Orle 5, LA 7011 i 1?1 El?lTX-?ai. 30 Si? . l? 1 Monique Harden Deep South Center for Environmental Justice 3157 Gentilly Blvd., #145 New Orleans, LA 70122 moniqueh@dscej .org William P. Quigley Loyola Law Clinic 7214 St. Charles Ave. New Orleans, LA 70118 quigley@loyno.edu May 14, 2018 Jill Tauber Susan Stevens Miller Earthjustice 1625 Massachusetts Ave., Suite 702 Washington, DC 20036 jtauber@earthjustice.org smiller@earthjustice.org Sascha Bollag Green Justice Legal 540 Broadway St. New Orleans, LA 70118 sbollag@greenjusticelegalorg To: Members of the Council of the City of New Orleans Mr. Jason R. Williams, Councilmember-at?Large Ms. Helena Moreno, Councilmember-at-Large Mr. Joseph I. Giarrusso, District Councilmember Mr. Jay Banks, District Councilmember Ms. Kristen Gisleson Palmer, District Councilmember Jared C. Brossett, District Councilmember Ms. Cyndi Nguyen, District Councilmember Re: Request that the Council of the City of New Orleans Order Rehearing on the Council?s Own Motion of Council Resolution 18-65 Application of Entergy New Orleans, Inc. for Approval to Construct New Orleans Power Station and Request for Cost Recovery and Timely Relief, Docket No. 6-02 Dear City Councilmembers: The Deep South Center for Environmental Justice, VAYLA New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, and the Alliance for Affordable Energy respectfully request that the Council "of the City of New Orleans (?City Council?) exercise its authority pursuant to the New Orleans City Code 158?485 to order rehearing on the City Council?s own motion of Council Resolution 18?65. Recent revelations about the compromised public process and false record of public opinion concerning this Resolution necessitate rehearing. In Resolution 18-65, the majority of the City Council voted to approve Entergy New Orleans, Inc?s (?Entergy?) application to construct a 128 megawatt peaking gas plant in New Orleans East. As discussed below, disturbing evidence has come to light that demonstrates that subcontractor paid numerous actors to feign support for the proposed gas plant by attending two public City Council meetings and providing public comments on Entergy?s proposal. As a result of this and other actions, New Orleans residents were deprived of their constitutional and statutory rights to attend the meetings and provide public comments.1 The illicit actions of Entergy?s subcontractor also created ?substantial errors of procedure? and otherwise ?so affected the record as to render it impracticable to determine the case justly and fairly upon the record.? New Orleans City Code 158?485. Accordingly, the City Council should, on its own motion, suspend the operation of Council Resolution 18-65 and set the matter for rehearing. We agree with Councilmembers Jason Williams and Helena Moreno that ?the City Council owes a ?duciary obligation to the citizens of New Orleans.?2 Thus, we urge the City Council to suspend the operation of Resolution 18-65 given the disturbing evidence that this resolution is based on a proceeding in which New Orleans residents were deprived of their rights The Louisiana Constitution provides that person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.? Louisiana Const. Art. XII, Sec. 3. The Open Meetings Law, La. RS. 42:12 et seq., ensures the rights of persons to observe and participate in the deliberations of public bodies. Wagner v. Beauregard Par. Police Jury, 525 So. 2d 166, 168 (La. Ct. App. 1988). 2 Caresse Jackman, New Orleans City Council Members respond to Entergy ?s investigation into paid actors, News (May 10, 2018), 1 1 3 178). Page 2 of 10 due, in part, to the intentional actions of entities that conspired to prevent residents from actively participating in the public meetings. Evidence of Recruitment and Payment of Actors As provided in the May 7, 2018 letter, on behalf of several organizations, to the City Council as well as state and parish of?cials requesting an investigation, troubling details have emerged in the last few months indicating that professional actors were paid cash to pose as concerned residents of New Orleans attending and providing comments in support of Entergy?s proposed gas plant at public meetings convened by the City Council.3 This letter urged the City Council, as well as state and parish of?cials, to launch an investigation into the potential legal and ethical violations associated with recruiting and paying actors to feign support for the Entergy gas plant at City Council public meetings, thereby depriving residents of their rights to observe those public hearings and provide comment. Following the letter, Entergy revealed on May 10th that one of its own subcontractors, Crowds on Demand, recruited, trained, and paid cash to numerous individuals to take up seats and speak from scripts at two public meetings conducted by the City Council.4 Entergy admitted 3 See Letter to Public Of?cials, Request for Investigation into Legality of Paid Actors at City Council Public Meetings (May 7, 2018). The letter is incorporated by reference in this request. See also Michael lsaac Stein, Actors were paid to support Entergy ?5 power plant at New Orleans City Council meetings, The Lens (May 4, 2018), (?The Lens article?); Kristin Pierce, City Council could face lawsuit following public hearing on Entergy plant, (Mar. 7, 2018), entergy?plant/5267473 70. 4 See Entergy, Report of Investigation New Orleans Power Station Advocacy, (May 10, 2018), p. 3, (?Entergy Report?) (?We now know, as a resUlt of our investigation, that Crowds on Demand did in fact compensate most, if not all, of the other individuals it recruited to appear at the [October 16, 2017] meeting . . . . [H]owever, we now know that Crowds on Demand also recruited and compensated people to attend this [February 21, 2018] meeting?). Page 3 of 10 mB(m€Fmj€FUFmF(O€jm(m2R1Um€mZ€mC1€\t,OF. €.O(FRFU?€mC(m€mD1€ ZR\(V€ZVO€(jL1/€\2Z\O1€Fm€C(j€ a2O(mFZUjDF\j€zFmD€mZ€\+dmF.F\(m1€FU€mD2€ Fm€ ZtU.FO€\t-OF.€R21mFV?j €z(j€UZm€(..tb)n2€?Fx2U€Fmj€ .ZVmb(.mu(O€b2M(mFZVjCF\€zFmD€mC2€ (zmCZf€ dZu\€(U/€mD2€(.mFZUj€Z3€ bZz/j€ZV€ 2R(V/ € Vm2b?€(NjZ€b2x2(O2/€mD(m€ bZz/j€ZV€ 2R(X/€z(j€DFb2/€-€ Vm2b?€.ZVmb(.mZb €mD1€ (zqCZg€ bZu\ € &C2€ ( EZh€ bZu\€Fj€LUZzV€7[b€mD2€m(.mF.€Z4€.b2(mFV?€jC(R€jt\\Zbm€OO€HVx2jmF?(mFZU €(j€ b1`v1jm1/€FV€mC1€"(€ € €O1mm2b€mZ€mD1€ Fm€ ZtV.FQ€(U/€jm(m2€(U/€\(bFjD€Z8.F(Oj €b2R(GVj € Yq2b?€.ZUnd(.m2/€zFmC€:bRj€mC(m€\b2x1Vm1/€#2z€$bO2(Uj€b2jF/2Umj€=ZR€2~2b.FjFV?€mD2Fc€ .ZVjmFmtmFZU(O€(V/€jm(pumZc€bF?Dm€mZ€\(coF.F\(m2€FU€mD2€ Fm€ ZtU.FO€\t-OF.€R21mFV?j € Vm1b?€(U/€ mD2€;Rj€ .O1(d€\ub]Zj1€z(j€mZ€jz(€mD1€ Fm€ ZtU.GO€mZ€(\\dZx1€(€\bZ\Zj1/€?(j€\O(Vm€-€ 7KQY@†(`r@nJ†pr8q@p†rK8r†Mr†K8?†`c†Wbc}Y@?I@†cB†&nc}?p†ZW€ '@]8`? p†8>rS NrN@p †(`r@nI†>c`>@?@p†rK8r† Or†;@8ip† xXrP]8r@†i@pec_pQ;QYQr€†Fdi†sL@†8>rRc`p†cC†rKcp@†eyiec tP`I†uc†8>r†c`†czj†;@K8YD † )ar@i ƒ†3@ecov † ^ *`rAiI€†4@eciw †e † Z  cnI† /8€† ,† † " † Lrwf# }~} @`@nI8`?ecYQ…€ clI L8}rKcl_ Inc{e en Gm] e8S? 8>rcip a@} cmY@:`p @br@nI %†0S>K8@Y† 5r@S`†8`?†&K8nY@p†18Y?c`8?c † +6 / < "+-:% 3< 56/-89/ + < ). < -/<.-: 1<.' +6 < 97<3 ;4„ n@Y8rTcap Hi^ KPn@? e@ceY@ rc pe@8V c` ;@K8\E cE Trp `@} ec}@i gY8`w † %(?1€ €Z3€ € Entergy and to silence public opposition.8 As a result, and as Councilmember Jason Williams recognizes, the process has been ?compromised.?9 Violations of Law The actions described above are not merely regrettable, they are illegal and unethical. The Louisiana Constitution guarantees all persons the right to observe the deliberations of public bodies, Article XII, Section 3. The Open Meetings Law is designed to ensure integrity and to increase the public?s trust and awareness of its governing of?cials. Moreover, the Open Meetings Law expressly provides for public participation through the public comment process. Thus, the Louisiana Legislature has determined that the input public bodies receive from their constituencies is an indispensable part of all decisions these public bodies make. The evidence gathered so far demonstrates that in at least two public meetings convened by the City Council, Crowds on Demand, an Entergy subcontractor, directed professional actors to wear orange t-shirts with a printed message in support of Entergy?s gas plant and present public comments as though they were concerned residents supporting the proposed plant. In each of those public meetings, real concerned residents were denied access into the meeting rooms where they could observe and/or make cements for the purported reason that no seats were available. The real concerned residents either waited for as much as several hours to be allowed in the meeting rooms or left in frustration after considerable time spent waiting. 8 Id. 9 Jessica Williams, Did Enlergy pay actors, ?compromise plant process? New Orleans council to investigate, The New Orleans Advocate (May 8, 2018), le8-9be9-2b95673 6d5b4.html. Page 5 oflO There has been much discussion in the media about the legality of the tactic known as ?astrotur?ng.? Astrotur?ng generally refers to paying people to pose as grassroots supporters for a given action or cause. But to be clear, what happened at the City Council meetings goes beyond astrotur?ng and thus does not turn on the legality of astroturfing in general. This is not a case where people were paid to enlarge the size of a crowd or join a protest, for example. Here, Entergy?s subcontractor paid actors to arrive early to public meetings convened by the City Council;10 to take up seats for the entire duration of the meetings (despite calls for people who had already provided public comment to give up their seats so others could be afforded an opportunity to provide comment);11 and, in some cases, to help create a false public record by providing public comment, posing as concerned residents. Indeed, from the period beginning with the October 16, 2017 City Council public meeting through the City Council?s majority vote to approve the Entergy gas plant application on March 8, 2018, numerous media outlets published news reports with photographs of apparently paid actors wearing the ubiquitous orange pro-gas plant t?shirts. The presence of these paid actors potentially and signi?cantly misrepresented and overstated public support for the gas plant. The intention and result of these actions was not only to misrepresent public support, but to deprive New Orleans residents of their constitutional right to observe the deliberations of public bodies and their statutory right to observe and comment. ?0 See, The Lens article (one of the hired actors told The Lens that the actors were instructed to arrive early). 1' Id. (As one of the hired actors described, ?They said, you guys have to be there ?rst thing because as soon as they open the door, we want you guys in there so if there are any protesters we got that whole room ?lled?). Page 6 of 10 The evidence demonstrates that Entergy?s subcontractor Crowds on Demand, planned, participated, and took actions in two public meetings that violated the Louisiana Constitution and the Open Meetings Law, resulting in irreparable injury to New Orleans residents who attended or attempted to attend the meetings, by excluding them from participation in the meetings and denying them the right to offer comments on a matter of interest to the public. Authority of the City Council to Order Rehearirg The City Council has the authority to grant a rehearing of an order on its own motion where the City Council ?concludes that substantial errors of procedure or the exclusion of evidence or any other substantial factors have so affected the record as to render it impracticable to determine the case justly and fairly upon the record.?12 The setting of a matter for rehearing shall suspend the operation of the rule or order in question unless otherwise provided by the City Council. '3 In light of Entergy?s admissions, the City Council should ?nd that the actions taken on behalf oftEntergy by its contractor and subcontractor prevented New Orleans residents from attending the public meetings and commenting on the Entergy gas plant and, therefore, constitutes a substantial factor affecting the record. The City Council should further ?nd that these actions also created ?substantial errors of procedure? to such an extent that it is impracticable to determine in a just and fair manner whether the Entergy gas proposal should be ?2 New Orleans City Code 158-485. '3 Id. Page 7 of 10 approved. As Councilmember Jason Williams stated, ?the harmful impact of this nefarious practice is unfortunate, unappreciated and repulsive to true democratic deliberative process.?14 It is essential to our democracy that the City Council rigorously investigate, determine, and act upon the facts in this matter. Councilmember Williams has called the process ?compromised.?15 We agree and respectfully request that the City Council act on its own motion to grant rehearing, and suspend Council Resolution 18-65 until this matter is fully investigated and the City Council has had the opportunity to act on the investigation?s ?ndings. An Independent Investigation Is Necessary We strongly recommend the City Council retain special counsel to lead an investigation into the use of paid actors at the City Council public meetings. We suggest that the scope of this investigation include, at a minimum, ?nding answers to the following questions: 1) Why did Entergy hire the Hawthorn Group? 2) What is the total amount of money that Entergy has paid to the Hawthorn Group? 3) i'Was any portion of the payment made by Entergy to the Hawthorn Group and its subcontractor Crowds on Demand collected from New Orleans ratepayers? 4) How long has Entergy retained the services of the Hawthorn Group? 5) What tasks have been performed by the Hawthorn Group on behalf of Entergy? 6) What is the total amount of money that Entergy paid to its subcontractor, Crowds on Demand? ?4 Jessica Williams, Did Entergy pay actors, ?compromise plant process? New Orleans council to investigate, The New Orleans Advocate (May 8, 2018) )5 Page 8 of 10 7) Has Crowds on Demand worked for Entergy prior to the October 2017 City Council 8) 9) public meeting? Does Entergy?s action to enter a contract with the Hawthorn Group to identify and recruit supporters of the proposed Entergy gas plant, which resulted in the paying of individuals to create sham support for Entergy?s gas plant application in City Council public meetings, violate the franchise agreement between the City of New Orleans/City Council and Entergy? Does Entergy?s action to enter a contract with the Hawthorn Group to identify and recruit supporters of the proposed Entergy gas plant, which resulted in the paying of individuals to create sham support for Entergy?s gas plant application in City Council public meetings, violate any of the legal obligations that Entergy has as a regulated utility monopoly? 10) Did any of the Council?s utility advisors on the staff of the Dentons law ?rm and/or Legends Consulting Group have knowledge of any action to recruit, hire, and pay actors to feign support for the proposed Entergy gas plant prior to either the City Council meeting on October 16, 2017 or the City Council meeting on February 21, 2018? 11) Did any elected member of the City Council, whose term of of?ce included the period between October 16, 2017 and March 8, 2018, or staff employed by the City Council during that time, have knowledge of any action to recruit, hire, and pay actors to feign support for the proposed Entergy gas plant prior to either the City Council meeting on October 16, 2017 or the City Council meeting on February 21, 2018? Page 9 of 10 12) Who drafted, reviewed, and/or approved the nondisclosure agreement in an effort to keep the cash payments to actors secret? While an independent investigation is essential to determine ultimate responsibility and culpability, there is no doubt that the public process has been corrupted and that substantial errors of procedure have occurred. As a result, the City Council should suspend Resolution 18- 65, on its own motion, and rehear the matter based on the information gathered to date, including Entergy?s report. Respectfully, WM Monique Harden Counsel for Deep South Center for Environmental Justice William P. Quigley Jill Tauber Susan Stevens Miller Sascha Bollag Counsel for VA YLA New Orleans, Justice and Beyond, 350 New Orleans, the Alliance for Affordable Energy, and Sierra Club cc: Sunni LeBeouf City Attorney City of New Orleans 1300 Perdido Street New Orleans, LA 70112 sunni.lebeouf@nola. gov Page 10 oflO