COURT OF APPEAL, FOURTH CIRCUIT STATE OF LOUISIANA NO. 2019-CA-0774 consolidated with 2019-CA-0775 DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS, JUSTICE AND BEYOND, 350 NEW ORLEANS, SIERRA CLUB, MR. THEODORE QUANT, AND MS. RENATE HEURICH Plaintiffs-Appellees V. THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE, TELECOMMUNICATIONS AND TECHNOLOGY COMMITTEE OF NEW ORLEANS CITY COUNCIL, JASON R. WILLIAMS, STACY HEAD, SUSAN G. GUIDRY, LATOYA CANTRELL, NADINE M. RAMSEY, JARED C. BROSSETT, AND JAMES A. GRAY, II Defendants-Appellants ON APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS NO. 2018-03843 (“I-14”), HONORABLE PIPER D. GRIFFIN, PRESIDING ORIGINAL BRIEF OF APPELLEES DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS, JUSTICE AND BEYOND, 350 NEW ORLEANS, SIERRA CLUB, MR. THEODORE QUANT, AND MS. RENATE HEURICH CIVIL PROCEEDING William Quigley, LA Bar No. 07769 Loyola University New Orleans 7214 St. Charles Avenue New Orleans, LA 70118 Phone: (504) 861-5591 Fax: (504) 861-5440 Email: quigley@loyno.edu Monique Harden, LA Bar No. 24118 Deep South Center for Environmental Justice 9801 Lake Forest Boulevard New Orleans, LA 70127 Phone: (504) 510-2943 Fax: (504) 372-3473 Email: moniqueh@dscej.org Susan Stevens Miller, 18-PHV-222 Earthjustice 1625 Massachusetts Ave., N.W. Washington, DC 20036 Phone: (202) 667-4500 Fax: (202) 667-2356 Email: smiller@earthjustice.org Alexander Bollag, LA Bar No. 34447 Green Justice Legal 540 Broadway Street, Room 304 New Orleans, LA 70118 Phone: (504) 913-7740 Fax: (813) 774-6595 Email: sbollag@greenjusticelegal.org Counsel for Plaintiffs-Appellees TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF THE CASE .................................................................................. 1 ISSUES PRESENTED FOR REVIEW ..................................................................... 3 STATEMENT OF FACTS ........................................................................................ 4 A. OCTOBER 16, 2017 PUBLIC HEARING ................................................ 4 B. FEBRUARY 21, 2018 UCTTC PUBLIC MEETING ............................... 5 C. MARCH 8, 2018 FULL COUNCIL PUBLIC MEETING ........................ 8 D. ACTORS FEIGNED SUPPORT FOR ENO’S GAS PLANT AT THE PUBLIC MEETINGS ........................................................................ 9 SUMMARY OF ARGUMENT ............................................................................... 11 ARGUMENT ...........................................................................................................13 A. LOUISIANA LAW GUARANTEES THE RIGHT TO OBSERVE DELIBERATIONS OF PUBLIC BODIES AND THE RIGHT TO COMMENT ON AN ISSUE PRIOR TO THE PUBLIC BODY TAKING ACTION ON THE ISSUE. ...................................................... 13 B. THE COUNCIL VIOLATED THE OML BY BARRING PEOPLE FROM ATTENDING PUBLIC MEETINGS AND DENYING PEOPLE THEIR RIGHT TO COMMENT. ............................................ 14 1. C. Given Mounting Evidence that Public Meetings Were Undermined by ENO’s Use of Paid Actors, the Council Failed to Take Corrective Action. ............................................................... 17 THE COUNCIL AND ENO PRESENT THE SAME ARGUMENT THAT WOULD EVISCERATE THE MEANING AND PURPOSE OF THE OML BY EXCUSING THE COUNCIL FROM ITS PRIMARY RESPONSIBILITY FOR ENSURING A PUBLIC MEETING ADHERES TO THE OML. ................................... 18 D. THE COUNCIL’S AUTHORITY AS A UTILITY REGULATORY DOES NOT EXEMPT IT FROM COMPLIANCE WITH THE OPEN MEETINGS LAW. ........................ 21 E. THE COUNCIL’S ASSERTION THAT THE UCTTC’S ACTION DOES NOT AFFECT THE VALIDITY OF THE FULL COUNCIL’S APPROVAL OF RESOLUTION NO. R-18-65 IS CONTRARY TO THE OML AND THE COUNCIL’S OWN RULES...................................................................................................... 22 F. THE OML COMPLAINT WAS RESOLVED IN A TIMELY MANNER ................................................................................................. 27 i G. THE DISTRICT COURT CORRECTLY FOUND THAT THE ACTIONS TAKEN AT BOTH THE FEBRUARY AND MARCH MEETINGS MUST BE VOIDED. .......................................................... 29 1. The Actions of the UCTTC and the Full Council are Relative Nullities That Must Be Voided by the Court.................................... 29 2. Even Assuming the Court has Discretion with Respect to Voiding an Action that Violates the OML, the Court Should Not Excuse the Council’s Significant and Substantive Violations. ......................................................................................... 30 CONCLUSION ........................................................................................................ 31 CERTIFICATE OF SERVICE ................................................................................ 33 TABLE OF AUTHORITIES Page(s) Cases Cent. Louisiana Elec. Co., Inc. v. Louisiana Pub. Serv. Comm’n, 437 So.2d 278 (La. 1983) ........................................................................................................27 City of New Carrollton v. Rogers, 287 Md. 56 ...............................................................................................................................23 Delta Development Co. v. Plaquemines Parish Commission Council, 451 So. 2d 134 (La. App. 4th Cir. 1984) ...............................................................18, 25, 26, 29 Hayes v. Jackson Parish School Board, 603 So. 2d 274 (La. Ct. App. 1992) .........................................................................................26 Jackson v. Bd. of Comm’rs for Hous. Auth. of New Orleans, 514 So. 2d 628 (La. Ct. App. 1987) .......................................................................16, 18, 19, 30 Orange Cty. Publications, Div. of Ottaway Newspapers, Inc. v. Council of City of Newburgh, 60 A.D.2d 409 ..........................................................................................................................23 Prest v. Par. of Caddo, 41,039 (La. App. 2 Cir. 6/2/06) ...................................................................................14, 16, 22 Romero v. Mosquito Control Contractors, Inc., 480 So. 2d 358 (La. Ct. App. 1985) .........................................................................................25 Sacramento Newspaper Guild v. Sacramento Cty. Bd. of Sup’rs, 263 Cal. App. 2d 41 .................................................................................................................23 St. Mary Anesthesia Assocs., Inc. v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 2001-2852 ................................................................................................................................16 Times Pub. Co. v. Williams, 222 So. 2d 470 (Fla. Dist. Ct. App. 1969) ...............................................................................23 Wagner v. Beauregard Par. Police Jury, 525 So. 2d 166 (La. Ct. App. 1988) .............................................................................13, 14, 26 ii Constitution and Statutes Louisiana Constitution, Article XII, Section 3 ..............................................................................13 La. R.S. 42:12(A) ...............................................................................................................13, 14, 15 La. R.S. 42:13 ................................................................................................................................14 La. R.S. 42:13(A)(1) ......................................................................................................................14 La. R.S. 42:13(A)(2) ..........................................................................................................12, 13, 23 La. R.S. 42:13(A)(3) ......................................................................................................................13 La. R.S. 42:14(A) .....................................................................................................................13, 15 La. R.S. 42:14(D) ................................................................................................................... passim La. R.S 42:19(A)(1)(bb) ................................................................................................................26 La. R.S. 42:24 ..............................................................................................................12, 23, 29, 30 La. R.S. 42:25(C) .............................................................................................................................1 La. R.S. 42:26(B) .............................................................................................................................3 La. R.S. 42:28 ................................................................................................................................20 La. R.S. 42.14 ................................................................................................................................20 New Orleans City Code Section 158-431(b) .....................................................................12, 21, 22 Louisiana Attorney General Opinions La. Atty. Gen. Op. No. 01-81 (Mar. 28, 2001) ..............................................................................23 La. Atty. Gen. Op. No. 10-0121 (June 7, 2010) ............................................................................14 La. Atty. Gen. Op. No. 16-0170 (Dec. 5, 2016) ......................................................................11, 14 La. Atty. Gen. Op. No. 80-128 (Feb. 8, 1980) ...............................................................................26 La. Atty. Gen. Op. No. 87-649 (Oct. 13, 1987) .............................................................................26 New Orleans City Council Motions Motion No. M-18-387....................................................................................................................28 iii STATEMENT OF THE CASE This is a challenge by truthful, directly impacted residents to the use of lying paid actors who advocated for and were secretly compensated by a regulated corporation on an issue worth tens of millions of dollars before the Council of the City of New Orleans (“Council”). 1 Not only did these paid actors openly and flagrantly lie about who they were and why they were there, exactly as they were paid to do, they also physically displaced dozens of directly impacted people who wanted to observe and participate in deliberations which were required to be open to the public. This blatant mockery of democracy rightly brought down a storm of scorn and criticism on the City locally and nationally. The District Court carefully examined the facts and the law and appropriately set the process aside as a violation of the Open Meetings Law (“OML”). The District Court upheld this right in rendering a judgment “to make sure that ‘citizens voices are heard’ at City Council meetings.” 2 Instead of apologizing and starting the process over in compliance with the OML, the Council and Entergy New Orleans, LLC (“ENO”) (on whose behalf these paid actors lied and advocated), have doubled down on this openly misleading process and want this Court to rule that this type of corruption of democracy does not actually matter and the OML was not violated. Accepting their arguments would result in this Court approving this corrupted process. On April 19, 2018, Appellees 3 filed an OML complaint pursuant to La. R.S. 42:25(C). This lawsuit sought remedies for two public meetings held by the Council and the Council’s Utility, Cable, Telecommunications and Technology Committee (“UCTTC”) that denied them and other New Orleans residents the right 1 Appellants are the Council, the Council’s Utility, Cable, Telecommunications and Technology Committee, named Councilmembers and Entergy New Orleans, LLC. 2 Record IV of IV at 784–85. 3 The Plaintiffs-Appellees are the Deep South Center for Environmental Justice, VAYLA New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant, and Ms. Renate Heurich (“Appellees”). 1 to direct public participation under the Louisiana Constitution, Article XII, Section 3; and, under La. R.S. 42:14(D), the statutory right to an open meeting and to comment on a public meeting agenda item prior to a vote being taken on it by the public body. 4 In response, the Council filed its opposition on July 3, 2018. 5 The District Court held a hearing in which oral arguments were presented on July 19, 2018. This case involves outrageous actions by ENO to attack the democratic process of the Council’s public meetings and ENO’s extraordinary efforts to conceal these acts. Appellees presented key facts, which were known to the Council, of ENO’s use of paid actors to show sham support at Council and UCTTC public meetings. 6 These facts were later confirmed and further detailed in a written report in and of their independent investigation of ENO’s use of paid actors. 7 There are many factual misstatements in the Council’s brief and the echoing brief of ENO, including the fact that contrary to both Appellants’ assertions, the Council did not object to suspending the OML proceeding in order to allow time for the Council to proceed with an independent investigation into ENO’s use of paid actors at public meetings. 8 When Councilmembers expressed interest in opening a new public process in response to the investigation report, Appellees were granted, without objection from the Council, a continuance of the OML proceeding to allow time for the Council to set a new process. 9 At the June 14, 2019 hearing, the District Court orally presented its judgment on the OML complaint in favor of Appellees. On July 2, 2019, the 4 Record I of IV at 1–117. On June 7, 2018, this petition was amended. Record I of IV at 137–84, 185–204. 5 Record I of IV at 220–45. 6 Record I of IV at 161, ¶ 85. 7 Record III of IV at 593–656. 8 Record II of IV at 349, 355. 9 Record II of IV at 358–63. 2 District Court issued the written judgment which ruled that the UCTTC public meeting on February 21, 2018 violated the OML. 10 This judgment voided the vote taken by the UCTTC in favor of approving ENO’s gas plant application and also voided the action taken by the Council which adopted UCTTC’s action as it was void ab initio. On July 8, 2019, the Council filed a motion for a suspensive appeal from the District Court’s judgment. 11 The Council did not provide any support for this motion. Appellees immediately filed their opposition to the Council’s motion with reasons for denying the request for a suspensive appeal and, instead, allowing the Council to pursue a devolutive appeal. 12 The District Court granted the suspensive appeal. 13 The District Court later granted a suspensive appeal to ENO. 14 ISSUES PRESENTED FOR REVIEW 1. Did the District Court correctly determine that the OML was violated at the February 21, 2018 public meeting held by the Council’s UCTTC? 2. Was the District Court’s decision to remedy the OML violation by voiding the action taken by the UCTTC at the February 21, 2018 public meeting, which was a vote in favor of adopting Resolution No. 18-65, in accordance with the OML? 3. Did the District Court correctly determine that the Council vote to adopt the prior UCTCC decision on Resolution No. 18-65 was void ab initio? 10 Record IV of IV at 784–85. Record IV of IV at 786–87. 12 Record IV of IV at 792–96. 13 Record IV of IV at 788. Appellees sought a supervisory writ to convert the suspensive appeal to a devolutive appeal for the reason that the suspensive appeal is a court order that waives compliance with the OML, which is expressly prohibited by La. R.S. 42:26(B). Additionally, Appellees raised the prejudicial effect of the suspensive appeal to allow ENO to construct the gas plant during the pendency of the Council’s appeal. The supervisory writ was denied. Appellees then filed an application for writ of certiorari to the Supreme Court. 14 Record IV of IV at 817. 11 3 STATEMENT OF FACTS The public meetings at issue in this OML enforcement action are part of the Council’s consideration of whether or not to approve ENO’s application to build a gas-fired power plant in New Orleans East. A. October 16, 2017 Public Hearing On October 16, 2017, members of the public, many of whom opposed ENO’s application, arrived well before the announced start time of 5:30 pm for the public hearing. They were informed that the meeting room doors would be unlocked at 5:00 pm, 30 minutes before the scheduled start time for the meeting. 15 Two buses of ENO supporters arrived around 4:00 pm. These individuals were immediately permitted to enter the meeting room. 16 Many Vietnamese American and African American residents, who live in the neighborhood where the gas plant was proposed to be built, as well as residents from other neighborhoods, wanted to speak in opposition to the construction of the plant but were not allowed in the room when they arrived and many left when it became clear that, as a result of the large crowd of ENO supporters admitted earlier into the meeting room and that remained in their seats throughout the meeting, they would not be able to comment. 17 An hour into the hearing, Council staff announced that there would not be time for everyone to comment so people should stop filling out comment cards. 18 At one point, then-Councilmember Susan Guidry asked people to leave the room when they were done speaking so that others who were outside could come in and provide comment. However, few, if any, of the ENO supporters in the orange pro-gas plant t-shirts left. 19 15 Record I of IV at 46, ¶ 26. Record I of IV at 47, ¶ 27. 17 Record I of IV at 56-60, ¶¶ 10, 13, 16 (and attached pictures). 18 Record I of IV at 70, ¶ 18. 19 Record I of IV at 55, ¶ 11; Record I of IV at 47, ¶ 29. 16 4 B. February 21, 2018 UCTTC Public Meeting The February 21, 2018 UCTTC public meeting included only one item, the draft resolution to approve ENO’s gas plant application. If approved, the full Council would consider whether to accept the UCTTC’s decision. Many members of the public arrived at the designated meeting site at approximately 9:30 am, 30 minutes before the meeting was scheduled to begin. At that time, the doors to the meeting room were locked and no one was allowed to enter. 20 Approximately 70 people were denied entry to the meeting by security, allegedly because there was no more space in the meeting room. 21 The majority of these individuals were residents of New Orleans East and the Lower Ninth Ward. 22 For example, VAYLA New Orleans (“VAYLA”), a multi-racial community organization in New Orleans East, organized two buses to transport 67 community members from New Orleans East to the meeting. These individuals arrived at the meeting room at approximately 9:20 am. 23 However, VAYLA representatives were informed that the room was at capacity and that none of their members would be admitted. 24 These community members were not allowed in the meeting even though there were empty seats in the room. 25 Similarly, Mr. Pat Bryant of Justice and Beyond arrived at approximately 9:30 am. He approached security several times and requested to be let into the meeting room, but security refused to allow him to enter the room. 26 The security 20 Record I of IV at 74, ¶ 5; Record I of IV at 80, ¶¶ 13, 15; Record I of IV at 85, ¶ 9. 21 Record I of IV at 63, ¶¶ 8, 10; Record I of IV at 74, ¶ 5; Record I of IV at 44, ¶ 8; Record I of IV at 67, ¶ 9; Record I of IV at 89, ¶ 9. 22 Record I of IV at 74, ¶ 5; Record I of IV at 88, ¶ 8. 23 Record I of IV at 94, ¶ 16; Record I of IV at 84, ¶ 7. 24 Record I of IV at 92, 93, ¶¶ 6, 8; Record I of IV at 85, ¶ 9. 25 Record I of IV at 55, ¶ 12; Record I of IV at 75, ¶ 7; Record I of IV at 93, ¶¶ 9, 10; Record I of IV at 80, ¶ 18; Record I of IV at 89, ¶ 11; Record I of IV at 102, ¶ 12. 26 Record I of IV at 89, ¶ 9. 5 guards created an atmosphere of intimidation by threatening members of the public who were locked out of the meeting with arrest. 27 During the meeting, Councilmembers acknowledged that people had been shut out of the proceeding. Then-Councilmember Susan Guidry observed that ENO “bused in a lot of people early and so it filled up the room so people couldn’t get in. I’m just saying, hey, it’s a strategy.” 28 Ms. Renate Heurich, Vice President of 350 New Orleans, a party to the underlying ENO gas plant proceeding, arrived at the meeting room at 10:00 am only to be told that she could not enter because the room was at capacity. 29 At 12:30 pm, she entered the room as someone was leaving. She observed approximately 30 empty seats. The security officer ordered her to leave despite the empty seats. Ms. Heurich left the room. 30 Several minutes later, one of the Council’s Advisors informed the security guard that Ms. Heurich was an intervenor and should be let into the meeting room. The security guard still refused to allow Ms. Heurich into the room. 31 Several minutes later, the security guard told Ms. Heurich she could enter the room. 32 At approximately 12:00 pm, security personnel started allowing some people into the meeting room but offered no explanation regarding how they were determining if and when to admit more people. Many members of the public waited outside of the meeting room for three hours or more without being admitted. 33 In fact, despite VAYLA members waiting approximately four to five 27 Record I of IV at 89, ¶ 10. See Kevin Litten, Chamber renovation creates headaches for N.O. City Council, The Times-Picayune (Mar. 7, 2018). Attached as Appendix A. 29 Record I of IV at 44, ¶ 7. 30 Record I of IV at 44-45, ¶ 14. 31 Record I of IV at 45, ¶ 15. 32 Record I of IV at 45, ¶ 16. 33 Record I of IV at 75, ¶¶ 9, 10; Record I at 63, ¶ 12. 28 6 hours, only three individuals from VAYLA were permitted to comment, and very few other members of VAYLA were allowed to even enter the room. 34 The UCTTC used a comment card process. An individual fills out a comment card and gives that card to a designated Council employee. During the public comment period, the UCTTC Chair calls individuals up to speak based on these cards. An individual who does not fill out a comment card is not permitted to speak at the public meeting. Many individuals who were locked out of the meeting room filled out comment cards. Ms. Grace Morris attempted to give these comment cards to Mr. Keith Lampkin, Chief of Staff to Councilmember Jason R. Williams, so that those who were locked out of the meeting could speak. Mr. Lampkin told Ms. Morris that he could only accept comment cards from people inside the room and that “there would be no way to facilitate everyone speaking [that day].” 35 Mr. Lampkin also refused to ask people to leave after they made public comments so that others could come inside the meeting room. 36 At no time were those who were barred from the meeting room informed regarding whether they would ever be permitted to speak. The evidence demonstrates that, at both the October 16, 2017 public hearing and the February 21, 2018 UTCTT public meeting, Entergy used paid actors to fill up meeting rooms and present public comments as though they were concerned citizens in support of ENO’s proposal. 37 ENO’s deception was aimed at limiting dissenting views by concerned residents from being heard. 38 As a result, concerned 34 Record I of IV at 94, ¶¶ 13–15. Record I of IV at 68-69, ¶ 12. 36 Id. 37 Record Vol. III of IV at 597–614. See also Michael Isaac Stein, Actors were paid to support ENO’s power plant at New Orleans City Council meetings, The Lens (May 4, 2018). Attached as Appendix B. 38 Record III of IV at 597–98, 605–06, 612–13. 35 7 residents were denied access to the meeting room where they could observe and/or make comments. The UCTTC did not offer any response when it was notified during the public comment session that paid actors were in the meeting room. 39 Nor did the Council, other than Councilmember Guidry, respond to an email by Appellee Renate Heurich documenting the fact that residents were denied the opportunity to observe and comment. 40 On March 6, 2018, attorneys representing 350 New Orleans sent a letter to the Council stating that the manner in which the UCTTC conducted the public meeting constituted a significant violation of the OML and requested that the Council require the UCTTC to conduct a second public meeting that complied with the OML. 41 The Council never responded. C. March 8, 2018 Full Council Public Meeting On March 8, 2018, the full Council considered the UCTTC’s vote in favor of Council Resolution No. R-18-65. People arrived early and formed a line outside of the meeting room more than hour before the meeting was to start at 10:00 am. In contrast, ENO employees were escorted to a separate entrance (not accessible to the public) and were seated in the meeting room as people waited to be admitted outside of the locked doors. 42 Mr. Patrick Bryant observed the ENO employees being led into the meeting room through this private entrance. 43 He and others proceeded to enter the room through this same entrance and were confronted by an ENO employee who attempted to physically block them, but Mr. Bryant and a few others were able to enter. 44 Like the February 21, 2018 meeting, members of the 39 Record II of IV at 260. Record I of IV at 46, ¶ 21. Record Vol. I of IV at 48. See email attached as Appendix C. 41 Record I of IV at 114–17. 42 Record I of IV at 98, ¶ 11. 43 Record I of IV at 89, ¶ 14. 44 Id. 40 8 public were prevented from attending the public meeting. 45 Approximately 30 people were forced to wait outside, and some left after waiting for hours. 46 D. Actors Feigned Support for ENO’s Gas Plant at the Public Meetings In the months after the Council’s public meetings, disturbing details emerged establishing the fact that actors were paid by ENO contractors to create sham support for ENO’s proposed gas plant at the October 16, 2017 and February 21, 2018 public meetings. First, WWL-TV News interviewed an actor who admitted being paid for his participation in the October 16, 2017 public meeting. 47 Actor Andrew Wiseman told WWL that he was paid $120 in cash to attend a Council meeting concerning ENO’s proposed gas plant. Mr. Wiseman said that he was told to “‘[j]ust sit down, wear a t-shirt, don’t talk, don’t open your mouth.’” 48 Mr. Wiseman said that the actors “weren’t told what they were going to be doing before they walked in the council meeting.” 49 After seeing this report and based on his impression that some of the ENO supporters’ comments seemed scripted, Mr. Michael Brown reviewed the video recording of the October 16, 2017 public hearing to determine if any of the commenters were actors. 50 Mr. Brown conducted a basic internet search and discovered that at least three of the commenters were professional actors. 51 An investigative report by The Lens revealed that “[a]t least four of the people in orange shirts were professional actors. One actor said he recognized 10 to 15 others who work in the local film industry. They were paid $60 each time they wore the orange shirts to meetings in October and February. Some got $200 45 Record I of IV at 64, ¶ 16; Record I of IV at 94–95, ¶¶ 16–17. Record I of IV at 75–76, ¶¶ 11–12; Record I of IV at 4, ¶ 24. 47 See Kristin Pierce, City Council could face lawsuit following public hearing on ENO plant, WWL (Mar. 7, 2018). Attached as Appendix D. 48 Id. 49 Id. 50 Record I of IV at 55, ¶ 14. 51 Id. ¶ 16. 46 9 for a ‘speaking role.’” 52 One actor explained that they were instructed to heckle residents who spoke in favor of renewable energy alternatives to the gas plant. 53 The Lens article provides troubling details into how this scheme worked, and its intent to deceive the Council and the public. In response to The Lens article, Councilmember Williams recognized the process had been “compromised.” 54 On May 7, 2018, Appellees submitted a letter to the Council, as well as other governmental agencies, requesting an investigation into the paid actor scandal. 55 On May 10, 2018, following The Lens article and the request for a government investigation, ENO revealed that one of its own subcontractors, Crowds on Demand, recruited, trained, and paid numerous individuals to take up seats and speak from scripts at two public meetings conducted by the Council and that this subcontractor was hired by ENO’s contractor, The Hawthorn Group. 56 On May 24, 2018, the Council announced plans for an investigation into the payment of actors to support ENO’s proposed gas plant. The investigation report revealed ENO’s efforts to limit dissenting views of concerned residents from being heard at Council meetings on its application. 57 The report details that Entergy could not find residents who supported its gas plant. 58 The report provides disturbing facts, including that ENO’s then CEO declared “war” against Appellees and other opponents of the gas plant application. 59 It shows ENO’s CEO, other employees, and contractors developed and implemented the strategy designed to 52 Stein, supra note 38. Appendix B. Id. 54 Travers Mackel, ENO says it didn’t hire actors to attend council meeting, WDSU News (May 10, 2018) (Attached as Appendix E). Advocate staff report, ENO ‘confirms’ it didn't pay actors at council meeting, but will cooperate with probe, The New Orleans Advocate (May 9, 2018) (Attached as Appendix F). 55 Record I of IV at 187–92. 56 See ENO, Report of Investigation New Orleans Power Station Advocacy at 3 (May 10, 2018). Executive Summary Attached as Appendix G. 57 Record III of IV at 597–98, 605–06, 612–13. 58 Record III of IV at 618. 59 Record III of IV at 597–98. 53 10 limit dissenting views at the public meetings. 60 This strategy included efforts to conceal ENO’s involvement as well as that of its contractors. 61 Pursuant to this strategy, 75 people, including actors, were paid to attend the October 16, 2017 meeting and 30 people, including actors, were paid to attend the UCTTC meeting on February 21, 2018. 62 It was imperative to ENO that the paid individuals arrive at these meetings before concerned residents, and they did. 63 At these meetings, the paid individuals filled seats and were instructed to remain seated until the end. 64 The paid actors were directed to pose as concerned residents in support of the gas plant; 65 speak from scripts prepared and vetted by ENO and its contractors, 66 and wear orange pro-gas plant t-shirts. 67 The report also indicates that the ENO CEO believed the strategy was a success as it limited opposing views from being heard. 68 SUMMARY OF ARGUMENT The OML requires the Council and the UCTTC, as public bodies, to “allow a public comment period prior to taking action on an agenda item upon which a vote is to be taken.” La. R.S. 42:14(D). Even when a committee serves only an advisory function, that committee is a public body. See La. Atty. Gen. Op. No. 160170 (Dec. 5, 2016). The undisputed fact before this Court is that the UCTTC and the Council voted to approve the ENO gas plant application at public meetings in which New Orleans residents were denied the right to make public comment. 60 Record III of IV at 591–602. Record III of IV at 604, 613. 62 Record III of IV at 605–06, 612. 63 Record III of IV at 606, 612–13. 64 Pierce, supra note 48. Appendix D. 65 Record, III of IV at 597. 66 Record III of IV at 605, 619. 67 Record III of IV at 605. 68 Record III of IV at 599–600, 612. 61 11 The Council raises a scatter shot of alleged errors in order to distract from its failure to take corrective action and its inexplicable support for ENO’s horrendous actions. Appellants argue that the actions taken by the UCTTC and the Council at public meetings are not voidable. However, under the OML, the fact of a violation, not who may have caused it, makes “any action taken . . . voidable.” La. R.S. 42:24. The Council also argues that as a utility regulator it is exempt from the OML requirements, relying on New Orleans City Code Section 158-431(b). The Council essentially argues that its ordinance supersedes state law. Basically, the Council asserts that if the public body does not care what the commenters have to say, the requirements of the OML need not be followed. This contention renders the OML meaningless. The Council also argues that the UCTTC’s action was corrected through ratification. For ratification to occur, the facts must indicate a clear and absolute intent to ratify the previous act. No such facts exist in this case. In the face of egregious violations of the OML, the Council asserts that the action taken by the UCTTC to vote in favor of ENO’s proposal was legally irrelevant and only the full Council vote is legally relevant. The Council’s position violates the express language of the OML. The OML applies to committees if the committee possesses “policy making, advisory, or administrative functions.” La. R.S. 42:13(A)(2). The OML requires that every step in the decision-making process meet the OML requirements. The Council also argues that the delay between the filing of the OML complaint and the District Court’s judgment should have removed voidance as an available remedy. This Court should reject the Council’s claim that a delay, caused in large part by its own actions, should preclude this Court’s decision voiding the UCTTC’s action. The Council cites no authority to support this contention that the length of the proceeding impacts the petitioners’ right to voidance as a remedy. 12 The Council argues that courts have discretion to decline to void a public body’s actions that violate the OML and that the District Court erred in not exercising this discretion. The Council violated the OML and this enforcement action was timely filed. Therefore, the votes must be voided. Even assuming the Court can decide not to void the Council’s unlawful actions, the significant OML violations that occurred warrant voiding the votes taken to approve the resolution. Adopting any of the Council’s position would gut the OML. This Court cannot sanction these actions and should affirm the District Court’s ruling. ARGUMENT A. Louisiana Law Guarantees the Right to Observe Deliberations of Public Bodies and the Right to Comment on an Issue Prior to the Public Body Taking Action on the Issue. Louisiana guarantees the right of all people to observe the deliberations of public bodies. The Louisiana Constitution, Article XII, Section 3 expressly provides that “[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” Building upon this foundation, the Louisiana Legislature enacted the OML. La. R.S. 42:12(A). See also Wagner v. Beauregard Par. Police Jury, 525 So. 2d 166, 169 (La. Ct. App. 1988). The OML’s purpose is set forth in La. R.S. 42:12(A): It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of [La. R.S. 42:11 through La. R.S. 42:28] shall be construed liberally. The OML requires that “[e]very meeting of any public body shall be open to the public,” with limited exceptions. La. R.S. 42:14(A). Public bodies include the board of any political subdivision, and any committee or subcommittee thereof. La. R.S. 42:13(A)(2), (A)(3) (emphasis added). The Attorney General has determined that the Council, as well as any Council committee, is a “public body” for purposes 13 of the OML. La. Atty. Gen. Op. No. 10-0121 (June 7, 2010). A meeting of a public body occurs when a public body convenes to deliberate or act on any matter over which it has supervision, control, jurisdiction, or advisory power. La. R.S. 42:13(A)(1) (emphasis added). Considered together, these provisions guarantee the public’s right to observe the meetings of any public body whenever it meets to perform any official duties. Louisiana law further requires that each public body accept public comment. Thus, all public bodies are required to allow public comment prior to taking action on an agenda item on which a vote is to be taken. La. R.S. 42:14(D). The importance of public comment is highlighted by a Louisiana Court of Appeal’s finding that: In determining the reasonableness of the Commission’s decision, we must review the opinions and concerns raised at the public hearing, as well as the testimony presented at trial. Expressions of opinion made by citizens to a legislative body serve as a manner by which the legislative body learns the will of the people and determines what may benefit the public good. Prest v. Par. of Caddo, 41,039 (La. App. 2 Cir. 6/2/06); 930 So. 2d 1207, 1211. As noted above, under La. R.S. 42:13(A)(1), the OML applies even when a committee is only serving an advisory function. Thus, even when a committee serves only an advisory function, that committee is a public body, and the convening of a quorum of the committee constitutes a public meeting as defined in La. R.S. 42:13. See La. Atty. Gen. Op. No. 16-0170 (Dec. 5, 2016). B. The Council Violated the OML by Barring People from Attending Public Meetings and Denying People Their Right to Comment. The Council and the UCTTC are “public bodies” subject to the OML. La. R.S. 42:12(A). Under the OML, the public has a right to observe public meetings and is entitled to direct participation in deliberations. See, e.g., Wagner, 525 So. 2d at 169. The OML makes the rules clear beyond question: the public must be given the opportunity to comment before an agenda item is taken up by the UCTTC or 14 the full Council; members of the public who wish to address the UCTTC or Council must be given the opportunity to speak; and members of the public have an absolute right to observe the meeting. The Council violated the OML by voting on a matter that members of the public were excluded from commenting on at the meetings at issue. In its brief, the Council fails to acknowledge the fact that the UCTTC vote occurred during a public meeting on February 21, 2018 in which New Orleans residents were denied entrance, 69 even though there were vacant seats inside the meeting room, 70 and reduced to chanting “Let us in!” 71 Residents were also denied entrance at the Council meeting on March 8, 2018 72 in which Entergy staff and supporters were provided a private entrance into the meeting room before the doors were open to members of the public waiting outside. 73 Barring members of the public from attending a public meeting and denying them the opportunity to comment is a clear and egregious violation of the legal standards set forth in La. R.S. 42:14(A) and (D). It also denies the fundamental rights guaranteed to Louisiana citizens—rights that are “essential to the maintenance of a democratic society.” La. R.S. 42:12(A). The Council wrongly contends that the OML is only intended to prevent secret decisions by public bodies without opportunity for public input. 74 The Council disregards the OML’s express purpose is to allow the public to participate in the decision-making process. Thus, in addition to the right to observe public meetings, the OML establishes the right to comment before a public body takes 69 Record I of IV at 55, ¶12; Record I of IV at 67, ¶ 9; Record I of IV at 74, ¶5; Record I of IV at 80, ¶¶13-16; and Record I of IV at 106, ¶¶7-8. 70 Record I of IV at 44-45, ¶14; Record Vol. I of IV at 75, ¶7; and Record I of IV at 80, ¶18. 71 Record I of IV at 106, ¶¶10-11; Record I of IV at 67-68, ¶10; Record I of IV at 44, ¶11; and Record I of IV at 93, ¶11. 72 Record I of IV at 95, ¶ 17; Record I of IV at 99, ¶ 12. 73 Record I of IV at 89, ¶ 14; Record I of IV at 98, ¶11. 74 Council Brief at 15 (Nov. 12, 2019). 15 action on an agenda item. La. R.S. 42:14(D). As the courts have recognized, “[t]he purpose of the Open Meetings Law is to allow the public to voice its opinion in the decision making process,” Jackson v. Bd. of Comm’rs for Hous. Auth. of New Orleans, 514 So. 2d 628, 629 (La. Ct. App. 1987), and these opinions help in “determining the reasonableness of the [city council’s] decision” and “what may benefit the public good.” Prest, 930 So. 2d at 1211. In providing its flawed reading of the OML, the Council also notes that the law implements a constitutional provision that is subject to exceptions “in cases established by law.” 75 However, the Council fails to show how it meets any exceptions. 76 The Court should reject the Council’s unreasonably narrow reading of the OML. The facts and evidence demonstrate that both the UCTTC and the full Council failed to conduct public meetings in accordance with the OML: (1) UCTTC members were aware that citizens had been shut out of the proceeding, but took no steps that remedied the situation; instead the UCTTC voted on a matter that citizens were denied the opportunity to comment on; (2) Council staff informed residents forced to wait outside the UCTTC meeting that comment cards would only be accepted from people inside the room and that there was no way to facilitate everyone speaking that day; (3) the full Council received at least two communications after the UCTTC meeting and before the March 8, 2018 meeting but failed to take any steps to remedy the violations; (4) the full Council conducted its public meeting with people forced to wait outside for several hours; and (5) the Council or its staff provided preferential treatment to ENO employees by permitting them to enter the meeting room through a private entrance and obtain 75 Council Brief at 14–15 (Nov. 12, 2019). The phrase “established by law” means “provided by legislation.” See, e.g., St. Mary Anesthesia Assocs., Inc. v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 20012852, p. 10 (La. App. 1 Cir. 12/20/02); 836 So. 2d 379, 387. 76 16 seats while residents stood in line waiting for the doors to the public entrance to open. It is the legal responsibility of the public body to ensure that OML requirements are met. The Council utterly failed to meet this legal obligation and this failure justifies this Court upholding the District Court’s judgment that voids the actions taken at these meetings. 1. Given Mounting Evidence that Public Meetings Were Undermined by ENO’s Use of Paid Actors, the Council Failed to Take Corrective Action. After the October 16, 2017 public hearing and during the UCTTC public meeting on February 21, 2018, the Council was aware of ENO’s use of paid actors and paid supporters to fill the meeting rooms and show sham support for the proposed gas plant. 77 Once the disturbing facts of the manipulation of the public process came to light, the Council should have re-started the process in compliance with the OML. Instead the Council plowed ahead, effectively acquiescing in and confirming ENO’s mendacious strategy. Rather than take the required corrective action, at the March 8, 2018 public meeting, the Council gave preferential treatment to ENO that allowed them to enter the meeting room before the doors were opened to the public. 78 Even after receiving the investigation report detailing the appalling actions taken by ENO to limit dissenting views by concerned residents from being heard at these public meetings, the Council refused to take correction action. This appeal brought by the Council aligns with the position taken by ENO, which is to thwart direct public participation and hold themselves above the law. 77 Kevin Litten, Meet the man who exposed ENO’s paid actor scandal, The TimesPicayune/NOLA.com (June 28, 2018) (reporting that during the February meeting, Danil Faust notified Councilmembers that people were paid to show support for the proposed ENO gas plants), https://www.nola.com/expo/news/erry2018/06/379d60254b5871/meet_the_man_who_exposed_enter.html. 78 Record I of IV at 89, ¶ 14. 17 C. The Council and ENO present the same argument that would eviscerate the meaning and purpose of the OML by excusing the Council from its primary responsibility for ensuring a public meeting adheres to the OML. The Council and the UCTCC took the action of voting on the ENO gas plant application at public meetings that were not open, as a practical matter, to New Orleans residents and did not allow all residents to make comments. Further aggravating this situation was ENO’s use of paid actors to obstruct residents, who were opposed to the gas plant, from having their voices heard by the Council and the UCTCC. Neither the Council nor ENO can change these appalling facts on which judgment was rendered. Instead, they seek to reverse the judgement with arguments that, if accepted by this Court, would eviscerate the OML. ENO argues that the OML is satisfied by the UCTTC’s and Council’s public notice of a public meeting with an agenda that includes a public comment period. 79 This contention unlawfully limits application of the OML to only the preparation for a public meeting. However, the OML clearly requires that the entire meeting comply with the OML before any action, such as a vote, is taken by the public body. La. R.S. 42:14(D). Louisiana jurisprudence demonstrates that compliance with the OML turns on the question of how a public meeting is, in fact, conducted from the public notice, the public comments received, and the action taken by the public body. See, e.g. Delta Development Co. v. Plaquemines Parish Commission Council, 451 So. 2d 134, 137 (La. App. 4th Cir. 1984) (finding that the steps taken by a public body, which included adequate public notice and agenda, public comment and discussion, and action to pass a resolution, were in full compliance with the OML); Jackson v. Bd. of Comm’rs for Hous. Auth. of New Orleans, 514 So. 2d 628 (La. App. 4th Cir. 1987) (finding that the steps taken by a public body to vote on a contract that was not on the public agenda, which meeting attendees 79 Entergy Brief at 18. 18 protested against, were in violation of the OML). ENO’s argument that the UCTTC and the Council satisfied the OML requirements based solely on their meeting preparations and not what occurred during these meetings must be rejected. Both the Council and ENO similarly argue that there can be no OML violation when the public comment period is interfered with by someone who is not subject to the OML. Their argument seeks to excuse ENO’s use of paid actors at the UCTCC meeting. Curiously, neither the Council nor ENO mention this fact in their respective “Statement of Facts”, however, they erroneously argue that District Court’s finding of an OML violation is based solely on ENO’s actions which they contend are without recourse under the OML. 80 Their argument would negate the responsibility that the Council and the UCTCC each have as public bodies under the OML. The OML prohibits a public body from taking an action, such as a vote, at a meeting in which people are denied their right to be heard. La. R.S. 42:14(D); see also Jackson, 514 So. 2d at 629-630 (affirming the decision to void the actions of the Board that “denied the interested public their right to be heard and to effectively participate in the decision-making process”). Here, the meeting conducted by the UCTTC was clearly in violation of the OML, as people were not allowed to observe the meeting and make comment; however, the UCTTC nonetheless voted. There is no doubt that ENO’s purposeful obstruction certainly aggravated the situation, but the UCTTC was not prevented from following its duty under the OML and should have refrained from taking a vote at this meeting in which so many members of the public were denied their right to be heard and to effectively participate in the decision-making process. 80 Council Brief at 16; Entergy Brief at 20–21. 19 Both the Council and ENO misread the OML in presenting their next shared argument that makes an issue of the District Court’s dicta as to whether the Council acted wrongly. 81 The Legislature contemplated that a public body can take an action in violation of the OML without there being any wrongdoing on the part of the public officials. For this reason, the OML distinguishes wrongdoing by a public official who knowingly and willfully violates open meetings (La. R.S. 42:28) from that of a general meeting violation (La. R.S. 42.14). For such a public official, the OML imposes a civil penalty. Under the OML, the District Court’s dicta regarding wrongdoing by Councilmembers is consistent with its ruling that the Council’s public meeting did not adhere to the OML. The Council’s contention that the District Court’s findings were based solely on the paid actors scandal is simply incorrect. Approximately 50 to 70 residents were barred from entering the UCTTC public meeting for several hours, 82 despite the fact that seats were available in the meeting room. 83 Citizens who were barred from the meeting room could not submit comment cards in order to speak at the public meeting. 84 They waited for hours and others left in frustration, as there was no information when or even whether they would be allowed to enter the room. 85 Thus, the facts show that the meetings at issue were not fully open to the public and public comment was improperly limited. 86 The UCTTC failed to comply with the OML. The Council hyperbolically mischaracterizes the District Court’s ruling to stand for the proposition that “the presence of any paid citizen would negate an 81 Council Brief at 14; Entergy Brief at 19. Record I of IV at 89, ¶ 9. 83 Record I of IV at 55, ¶ 12; Record I of IV at 75, ¶ 7; Record I of IV at 93, ¶¶ 9, 10; Record I of IV at 80, ¶ 18; Record I of IV at 89, ¶ 11. 84 Record I of IV at 68, ¶ 12. 85 Id. 86 These violations were compounded by a historic scandal that, in at least one Councilmembers’ view “compromised” the entire public process. See Appendix E. 82 20 otherwise valid and legal vote taken at a lawful public meeting.” 87 The Council further misleadingly states the effect of the ruling will compel public bodies “to question the motives of audience members at every lawful public meeting.” Neither of these straw arguments are remotely accurate. This case is not simply about that fact that paid private citizens were at a meeting of a public body. Those paid individuals were 1) working at the behest of the corporation seeking official approval from the public body and 2) displaced non-paid private citizens from being able to observe and participate and 3) the public body was informed repeatedly about these actions but failed to respond in a timely or sufficient manner, thus precluding residents from observing or participating in the meeting. This Court cannot sanction these actions. The Council falsely argues that the District Court’s judgment requires the Council to ascertain the financial motives of people who give public comment in order to ensure compliance with the OML. 88 Clearly, such a requirement is not expressed or even implied by the judgment. Council’s hyperbolic first amendment concerns are simply incorrect. Again, the Council raises a straw argument designed to distract from the fact that the Council utterly failed to meet OML requirements and this failure justified the voiding of the actions taken at the meeting. 89 D. The Council’s Authority as a Utility Regulatory Does Not Exempt it from Compliance with the Open Meetings Law. Shockingly, the Council argues that its authority as a utility regulator creates an exemption from the obligation to meet the requirements of the OML. For this argument, the Council cites the New Orleans City Code Section 158-431(b), which provides that no statement at utility public hearing is to form, in legal terms, the 87 Council Brief at 2. Council Brief at 16–17. 89 On June 4, 2018, the Council revised its comment cards to request that a speaker state whether he/she is receiving compensation for their testimony. Thus, the concerns of the Council are apparently overstated. See Council Press Release attached as Appendix H. 88 21 basis of a council decision in a contested proceeding. Essentially, the Council argues that its ordinance supersedes state law and allows the Council to ignore public comments, which it clearly does not. The ordinance addresses the legal basis for a utility decision not the right to participate in the decision. Furthermore, under the OML, all public bodies are required to allow public comment prior to taking action on an agenda item on which a vote is to be taken. La. R.S. 42:14(D). Courts review the opinions and concerns raised at the public hearing, as well as the testimony presented at trial, in determining the reasonableness of the pubic body’s decision. Prest, 930 So. 2d at 1211. The Council requests that this Court create an exception to the OML whereby if the public body does not care what the commenters have to say, the requirements of the OML need not be followed. This “exception” would eviscerate the OML and the constitutional protection that undergirds it. The Court should also note that the Council’s careful parsing of the New Orleans City Code Section 158-431(b) leaves out the requirement that the presiding officer declare at the start of the meeting that the statements shall not form the basis of the Council’s decision.90 The presiding officer failed to make this declaration at the UCTTC public meeting on February 21, 2018 and the full Council public meeting on March 8, 2018. Since the Council failed to meet the requirements of Section 158-431(b), the Council cannot now be permitted to rely on this provision to justify its violation of the OML. E. The Council’s Assertion that the UCTTC’s Action Does Not Affect the Validity of the Full Council’s Approval of Resolution No. R-18-65 is Contrary to the OML and the Council’s Own Rules. 90 New Orleans City Code Section 158-431(b) (presiding officer . . . shall declare that no part of statements made . . . at such at-large public hearing shall, in legal terms, form . . . the basis of any council decision in a contested proceeding.) (emphasis added). 22 In the face of egregious violations of the OML at the UCTTC meeting, the Council asserts that the action taken by the UCTTC to vote in favor of ENO’s proposal was legally irrelevant and only the full Council vote is legally relevant. This contention is contrary to the OML and the Council’s own regulations. The Council’s position violates the express language of the OML. The OML applies to committees that possess “policy making, advisory, or administrative functions.” La. R.S. 42:13(A)(2) (emphasis added). Thus, even if the UCTTC was only making a recommendation to the Council, those actions would be subject to the OML’s requirements. As the Attorney General explained: [s]ince the deliberations would constitute an element of the formulation of public policy, the intent of the Open Meetings Law could be frustrated if the committee meetings are closed to the public … the committee should meet in public so that interested citizens can have the benefit of deliberations and decisions which could have a profound effect on the public policy. 91 Thus, the OML recognizes that decision making by a public body is a continuum and requires that every step in the decision-making process meet the OML requirements. Failure to meet these requirements at any juncture in the process is an OML violation that is voidable. La. R.S. 42:24. Moreover, the Council’s contention that the UCTTC’s actions were irrelevant is contrary to the Council’s own rules as they existed at the time of the 91 La. Atty. Gen. Op. No. 01-81 (Mar. 28, 2001), citing Atty. Gen. Op 89-481. Attached as Appendix I. Several states have concluded that every step of the decision-making process must comply with the open meetings laws. See, e.g., Times Pub. Co. v. Williams, 222 So. 2d 470, 473 (Fla. Dist. Ct. App. 1969); Sacramento Newspaper Guild v. Sacramento Cty. Bd. of Sup’rs, 263 Cal. App. 2d 41, 50; 69 Cal. Rptr. 480, 487 (Ct. App. 1968) (“Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices.”); Orange Cty. Publications, Div. of Ottaway Newspapers, Inc. v. Council of City of Newburgh, 60 A.D.2d 409, 415; 401 N.Y.S.2d 84, 89 (1978); City of New Carrollton v. Rogers, 287 Md. 56, 70–73; 410 A.2d 1070, 1078–1079 (finding that the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business). 23 UCTTC’s decision on Resolution No. R-18-65. 92 Rule 39A(2) of the Rules and Regulations of the Council of the City of New Orleans provides that committees, such as the UCTTC, “shall make recommendations to the full Council on Council Ordinances, Motions, Resolutions.” 93 Thus, the UCTTC considered a matter within its jurisdiction in the first instance before the matter proceeded to the Council as a whole. Council Rule 39A(7)–(8) specified the methods by which the full Council may remove a matter from a standing committee’s consideration, 94 which the Council did not use here. As stated by the Council, the UCTTC voted “in favor of moving proposed Council Resolution No. R-18-65 to the full City Council for further deliberation.” 95 Similarly, Councilmember Williams stated that the “vote at the Utility Committee meeting was to move this docket to the full Council.” 96 In the absence of the full Council exercising its formal removal authority, the full Council could only act after receiving the recommendation of the standing committee, in this instance the UCTTC. In sum, the UCTTC public meeting and vote were the necessary precondition for the Council to consider the resolution approving ENO’s gas plant. The Council’s argument to the contrary disregards its own operating rules. Thus, the Court should find that the meeting and vote by the UCTTC were a required step in the Council’s decision-making process, and that every step in the process 92 On April 11, 2019, the Council surreptitiously altered the rules such that the rule, renumbered as Rule 38A(2), now states that standing committees “may” make recommendations rather than shall. This new rule is inapplicable to this appeal. Moreover, the new rule would not change the analysis because in this instance the UCTTC did make a “recommendation”. See Excerpt of New Rules attached as Appendix J. 93 See Rules and Regulations of the Council of the City of New Orleans at 23. See Excerpt of Rules attached as Appendix K. 94 Id. at 25. 95 Council Brief at 7 (Nov. 12, 2019) (emphasis added) (citation omitted). 96 Transcript March 8, 2018 Council Meeting at 3:22–4:2. Excerpt at Appendix L. 24 must meet the OML requirements or else the actions taken in the process are voidable. If the Council’s assertions are accepted by the Court, the standing committees, including the UCTTC, could operate in a manner that flouts the OML. These committees could operate in secret and refuse to allow the public to comment. According to the Council, the public would have no recourse or forum available to protect their rights under the OML because their decision was not the “real decision.” Under the Council’s interpretation of the OML, the UCTTC is subject to the OML but there are no consequences when it fails to follow that law. This absurd result could not have been intended by the Legislature. The Council also argues that the full Council meeting on March 8, 2018 somehow corrected the UCTTC’s action through ratification. 97 In Delta Development Co. v. Plaquemines Parish Commission Council, the Court determined that a public body’s unlawful actions are void if challenged in a timely manner and not corrected by ratification. 451 So. 2d 134, 137 (La. Ct. App. 1984). For ratification to occur, the facts must indicate a clear and absolute intent to ratify the previous act. Romero v. Mosquito Control Contractors, Inc., 480 So. 2d 358, 362 (La. Ct. App. 1985). No such facts exist in this case. To the contrary, this contention is contradicted by Councilmember Williams’ statement at the full Council meeting on March 8, 2018 that “only the vote of the full Council, today, carries the legal weight and is outcome determinative.” 98 If, as Councilmember Williams states, the UCTTC vote was irrelevant, then the Council would not have sought to ratify that vote. Moreover, even if the full Council was attempting to ratify the UCTTC action, such an act was not in compliance with the OML. Under the OML, citizens 97 98 Council Brief at 20–22 (Nov. 12, 2019). Transcript March 8, 2018 Council Meeting at 3:3–5. Excerpt at Appendix L. 25 have the right to know, in advance, the subject matter upon which governing bodies will deliberate and vote. See, e.g., Wagner, 525 So. 2d at 168. Accordingly, the law provides that in the required written public notice “[e]ach item on the agenda shall be listed separately and described with reasonable specificity.” La. R.S 42:19(A)(1)(bb). The Attorney General has found that the agenda must be reasonably clear so as to advise the public in general terms each subject to be discussed. See generally La. Atty. Gen. Op. No. 80-128 (Feb. 8, 1980); La. Atty. Gen. Op. No. 87-649 (Oct. 13, 1987). The notice issued for the March meeting provided no notification that the Council would consider ratifying the UCTTC’s actions. 99 The Second Circuit addressed the failure to be sufficiently specific in an agenda notice in Hayes v. Jackson Parish School Board, 603 So. 2d 274 (La. Ct. App. 1992). In Hayes, the Administrator submitted a proposal requesting additional space for a program. The school board meeting notice simply said that they would be considering the request for additional space. However, the school board decided to address the need for more space by closing a school. The Hayes court found that the notice did not properly inform the public of specific action being considered and violated the OML. 603 So. 2d at 276. The Delta Development court expressly warned that in ratifying a previous decision, all aspects of the OML must be scrupulously followed. 451 So. 2d at 138. That did not happen here. If the Council did intend to “ratify” the actions of the UCTTC, the Council failed to give the community sufficient notice of this proposed action. Thus, the failure to include in the March meeting notice any suggestion that the Council would consider ratifying the UCTTC’s actions would itself be a violation of the OML. In addition to the lack of notice, at no point during 99 New Orleans City Council, March 8, 2018 Agenda. Attached as Appendix M. 26 the hours-long full Council meeting on March 8, 2018, did any Councilmember suggest that the Council intended to ratify the UCTTC’s action. Certainly, a stealth ratification of another public body’s previous action is contrary to the OML. Finally, the Council cites no authority to support the proposition that one public body (i.e., the full City Council) can ratify the decision of another public body (the UCTTC). This Court should find that only the public body which performed the action in violation of the OML can ratify that action. To hold otherwise would negate the requirement that every public body must comply with the OML. Moreover, the Court should find that the Council’s argument that a ratification occurred is simply a post hoc rationale of counsel in a transparent attempt to avoid the consequences of the Council’s failure to follow the OML. . See, e.g., Cent. Louisiana Elec. Co., Inc. v. Louisiana Pub. Serv. Comm’n, 437 So.2d 278, 279 (La. 1983). Therefore, the Court should find that there was no subsequent ratification. F. The OML Complaint was Resolved in a Timely Manner Appellants both argue that the delay between the filing of the OML enforcement action and the District Court’s judgment “should have removed voidance as an available remedy.” 100 However, the Council fails to acknowledge that, after the granting of the initial continuance at the July 24, 2018 hearing, the Council did not raise any objection to the subsequent continuances. 101 These continuances were necessitated by the Council’s delays in starting and completing the investigation of ENO’s use of paid actors at Council meetings. For example, the Council announced the investigation on May 18, 2018, but the investigators did not begin the investigation until after August 6, 2018, nearly three months after the investigation was announced. Similarly, on September 13, 2018, the District Court 100 101 Council Brief at 23 (Nov. 12, 2019); see also ENO Brief at 28 (Nov. 12, 2019). Record II of IV at 349, 355 and Record II of IV at 358–363. 27 ordered a further continuance, because the Council extended the deadline for completion of the investigation to October 19, 2018. 102 An additional continuance, which was not opposed by the Council, was granted to allow the Council the opportunity to resolve this matter based on public statements of Councilmembers of their interest in starting a new process. 103 The Council even publicly released a draft resolution that, if adopted by the Council, would have rescinded the vote approving the construction of the gas plant. 104 It was not until the Council reversed its public statements and voted to merely fine ENO for its role in the paid actors scandal 105 that the Council filed a Motion to Set a Status Conference. 106 The District Court held a status conference on May 10, 2019, and announced the ruling at the scheduled hearing on June 14, 2019. This Court should reject the Council’s claim that a delay, caused in large part by its own actions, should preclude the Court’s decision voiding the UCTTC’s action at its meeting that clearly violated the OML. First, the Council cites no authority to support its contention that the voiding of an action taken in violation of the OML must occur within a specific time period or the petitioners’ right to that remedy is lost. Accepting this argument would be contrary to the OML, which only provides the requirement that a complaint regarding an OML violation be filed within 60 days of the violation—no other time requirements are set forth in the statute. Moreover, the Council cannot now object to the District Court’s granting of continuances when the Council repeatedly failed to raise any objections at the time those continuances, other than the first continuance, were granted. Moreover, a significant portion of the delay can be attributed to the Council’s own actions— 102 Motion No. M-18-387 (Sep. 6, 2018). Record Vol. II of IV at 358–63. 104 Record III of IV at 587. Resolution No. R-19-18 attached as Appendix N. 105 Record III of IV at 587. Resolution No. R-19-17 attached as Appendix O. 106 Record III of IV at 575. 103 28 i.e., repeatedly delaying the completion of the investigation, suggesting that they were going to repeal or revote on the original resolution—and much of the rest of the delay was at the behest of the District Court itself. Appellees should not be denied justice because the District Court required more time to render a decision than Appellants, in hindsight, would have liked. Appellees’ constitutional rights should not be found to rest on so thin a reed. G. The District Court Correctly Found that the Actions Taken at Both the February and March Meetings Must Be Voided. The OML provides that “[a]ny action taken in violation of this Chapter shall be voidable by a court of competent jurisdiction. A suit to void any action must be commenced within sixty days of the action.” La. R.S. 42:24. The Council violated the OML and this enforcement action was timely filed. Therefore, the votes must be voided. The Council argues that courts have discretion to decline to void a public body’s actions that violate the OML and impose an alternative remedy. The Council asserts that the District Court erred in not exercising this discretion. However, the Council never proposed an alternative remedy to the District Court. The Council continues this failure in this Court, arguing for an alternative remedy but never stating what that remedy should be. The Court should find that since the Council failed to propose any specific remedy as an alternative to voiding the decision, the District Court did not err in failing to impose an alternative remedy since no alternative was presented to that court. 1. The Actions of the UCTTC and the Full Council are Relative Nullities That Must Be Voided by the Court. Consistent with Delta Development, the Council’s unlawful actions are a relative nullity, i.e., void if challenged in a timely manner. 107 As such, the 107 Delta Development, 451 So. 2d at 137 (“The clear intent of R.S. 42:9 was to give interested persons the right to have an act of a public body declared null and 29 Council’s actions must be voided because Appellees’ enforcement action was timely filed. The Fourth Circuit applied the concept of relative nullity in Jackson v. Board of Commissioners for the Housing Authority of New Orleans, and found that the action at issue violated the OML. Specifically, the Jackson court found: Unlike Delta Development Co. . . . the Board’s action was never ratified subsequently. Furthermore suit was timely filed by plaintiff. We find no reason to declare that the Board’s action was not void. All of the procedural requirements for challenging the action were complied with . . . [Appellant] has made no other allegations which would require a finding that the Board’s action in awarding the contract was a relative nullity and not absolutely void. 108 Thus, Jackson makes clear that an action in violation of the OML is a nullity and void if: (1) the complaint alleging the violations is filed within the sixty days required by La. R.S. 42:24; and (2) the action at issue was not subsequently ratified. In this instance, there is no question that the Appellees’ petition was filed within the sixty-day timeframe required by the OML. Moreover, the UCTTC’s action was not ratified in the manner required by the OML. 2. Even Assuming the Court has Discretion with Respect to Voiding an Action that Violates the OML, the Court Should Not Excuse the Council’s Significant and Substantive Violations. Even assuming the Court can decide not to void the Council’s unlawful actions, the significant OML violations that occurred warrant voiding the votes taken to approve the resolution. The Council’s egregious actions strike at the core of what the OML is designed to protect against. To rule otherwise would render the protections created in the OML meaningless. According to the Council, the District Court should have declined to declare the resolution void out of deference to the Council’s decision regarding public utilities. 109 The Court also should reject this argument. The Council attempts to void if performed illegally, but if sixty days pass without an attack the act is valid from its inception.”). 108 Jackson, 514 So. 2d at 630. 109 Council Brief at 23–26. 30 conflate judicial deference to regulatory authorities as applying to the manner in which the Council conducts its public meetings as a public body under the OML. The Council cites no support for this proposition, because no support exists. The merits of the Council’s action in voting in favor of Resolution No. R-18-65 approving ENO’s proposal is not at issue in this OML proceeding. The Council has no expertise in the interpretation of the OML that warrants judicial deference. The Council’s contention that the District Court erred in not exercising its purported discretion should be rejected by this Court. CONCLUSION Democracy, in order to survive, must be vigorously defended. Democracy needs the strong support of all three branches of government. The Council, after publicly excoriating ENO for flagrantly corrupting the democratic process by using paid actors to lie and displace actually impacted citizens from hearings, now asks this Court to endorse the same process and reverse the decision of the Court below. The Council’s position is contrary to law and contrary to democracy itself. The Council shamefully ignores that approximately 70 residents were barred from attending a public meeting and shamefully asserts that public comment does not matter. The Council then proceeds to ask this Court to disregard a key right of public participation. Further, the Council’s position in this case is diametrically opposed to its own open public lamentations about the corruption and perversion of the same public process that they defend on brief. The right of New Orleans residents to have their voices heard at Council meetings must be protected. Democracy must be defended. For the reasons set forth in this brief, the Court should find that the District Court correctly determined that the OML was violated and correctly determined that based on this violation both the UCTTC’s action and the full Council’s action approving ENO’s application to construct a gas plant are void. 31 Respectfully submitted by: /s/ William Quigley William Quigley, La. Bar No. 07769 Loyola University New Orleans 7214 St. Charles Avenue New Orleans, LA 70118 Phone: (504) 861-5591 Fax: (504) 861-5440 Email: quigley@loyno.edu Monique Harden, La. Bar No. 24118 Deep South Center for Environmental Justice 9801 Lake Forest Boulevard New Orleans, LA 70127 Phone: (504) 510-2943 Fax: (504) 372-3473 Email: moniqueh@dscej.org /s/ Susan Stevens Miller Susan Stevens Miller, 18-PHV-222 Earthjustice 1625 Massachusetts Avenue, N.W. Suite 702 Washington, DC 20036 Phone: (202) 667-4500 Fax: (202) 667-2356 Email: smiller@earthjustice.org Admitted Pro Hac Vice /s/ Alexander Bollag Alexander “Sascha” Bollag La. Bar No. 34447 Green Justice Legal 540 Broadway Street, Room 304 New Orleans, LA 70118 Phone: (504) 913-7740 Fax: (813) 774-6595 Email: sbollag@greenjusticelegal.org 32 CERTIFICATE OF SERVICE I hereby certify that I have on this 2nd day of December, 2019, served a copy of the foregoing to all known counsel of record in this matter by electronic mail. __________________________________ Monique Harden, Counsel W. Raley Alford, III #27354 Timothy S. Cragin #22313 Kathryn W. Munson #35933 Harry Barton #29751 Stanley, Reuter, Ross, Thornton & Entergy Services, LLC Alford, L.L.C. 639 Loyola Avenue 909 Poydras Street, Suite 2500 New Orleans, LA 70113 New Orleans, LA 70112 Phone: 504-576-2603 Phone: 504-523-1580 Fax: 504-576-5579 Fax: 504-524-0069 Email: tcragin@entergy.com Email: rcs@stanleyreuter.com hbarton@entergy.com wra@stanleyreuter.com kwm@stanleyreuter.com Counsel for ENO New Orleans, LLC James M. Garner #19589 Debra J. Fischman #5578 Stuart D. Kottle #37194 Sher Garner Cahill Richter Klein & Hilbert, LLC 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Phone: (504) 299-2102 Fax: (504) 299-2300 Email: jgarner@shergarner.com dfischman@shergarner.com skottle@shergarner.com Corwin M. St. Raymond #31330 William Goforth #33153 Donesia D. Turner #23338 Sunni J. LeBeouf #28842 City Attorney 1300 Perdido Street, Room 5E03 New Orleans, LA 70112 Phone: (504) 658-9800 Fax: (504) 658-9868 Email: cmstraymond@nola.gov wrgoforth@nola.gov sunni.lebeouf@nola.gov donesia.turner@nola.gov Adam J. Swensek #30751 New Orleans City Council 1300 Perdido Street, Room 1E6 New Orleans, LA 70112 Phone: (504) 658-1109 Email: adam.swensek@nola.gov Counsel for The Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II 33 Appendix A https://www.nola.com/news/politics/article_fc782310-e00d-502d-8672-a5a9468367d6.html Chamber renovation creates headaches for N.O. City Council Kevin Litten, NOLA.com The Times-Picayune MAR 7, 2018 - 12:00 PM The New Orleans City Council, pictured in this le photo, has been holding meetings o -site during chamber renovations. The renovation of the City Council chamber at New Orleans was surely needed: Ancient soundproo ng panels marred the walls, it was always dimly lit, and the carpet around the dais looked rather ratty. But that same renovation, being completed this week, has created a logistical nightmare this year that now threatens to upend an 18-month slog of a highly litigated process that council members thought was coming to a close. On Feb. 21, the council's utility committee voted 4-1 to approve Entergy's $210 million peaking power plant in New Orleans East after opponents ooded an off-site meeting facility. Chants could be heard from outside the auditorium at the Pan American Life Center on Poydras Street as the council heard 6 1/2 hours of testimony after security barred opponents from entering the meeting. And now a Loyola University law professor known for supporting social justice causes, Bill Quigley, is threatening to sue the council over the decision to keep the opponents out. It was the second time since the council renovation began that council members were put in the uncomfortable position of shutting opponents out of a proceeding. In January, amid an outcry over a resolution the council passed that was later promoted as part of a movement known as Boycott, Divest and Sanction, council members voted down the resolution as members of the Palestinian Solidarity Committee and others stood outside, chanting and holding up signs. That meeting was held on the West Bank, in a room usually used by the Orleans Parish School Board, that was far to small to accommodate the hundreds of protesters who showed up. That meeting became so rancorous, police told protesters they'd be arrested if they didn't stop singing and leave the meeting room after the council adjourned brie y. During the utility committee meeting, council members acknowledged that some protesters had been shut out of the proceeding, and framed it as being part of a strategy deployed by supporters of the power plant who arrived early and packed the room to capacity. "Entergy's supporters got into the room early and so that wound up with the room lling up with a lot of supporters and the other people who are coming on time for the meeting couldn't get in," said City Councilwoman Susan Guidry. "My observation is that Entergy got their people in rst and that's how that happened." City Councilman Jared Brossett pointed out that it was rst come, rst serve, to which Guidry replied, "They bused in a lot of people early and so it lled up the room so people couldn't get in. I'm just saying, hey, it's a strategy." Quigley said in his notice to the council that not allowing people into the meeting, even when there were empty seats as the meeting continued, is a violation of public meetings law. He urged the council to avoid litigation by holding a new vote of the utility committee, which would delay a full vote of the council  until next month. The utility committee's chairman, Councilman Jason Williams, did not respond to a request for comment on whether he was concerned about litigation. The council leaves of ce on May 7, so if opponents' litigation is successful, it could mean the process for the council approving a power plant would have to restart -- potentially costing ratepayers tens of thousands of dollars in legal fees. But all indications on Tuesday were that the council would move forward with a vote of the full council on the power plant. Opponents are planning a news conference at City Hall on Wednesday and they're busing in people to the Thursday meeting. At the very least, the crowd that arrives Thursday will be able to enjoy a newly renovated council chamber, complete with new LED lighting that will replace the theatrical lights; a repainted ceiling and walls; new carpeting; new auditorium seating and a new ADA-compliant speakers' lectern. Appendix B https://www.nola.com/news/article_3344391c-2c85-51e7-945f-ce68491b6981.html Actors were paid to support Entergy’s power plant at New Orleans City Council meetings BY MICHAEL ISAAC STEIN The Lens MAY 4, 2018 - 4:00 PM Last October, about 50 people in bright orange shirts led into City Hall for a public hearing on Entergy’s request to build a $210 million power plant in New Orleans East. Their shirts read: “Clean Energy. Good Jobs. Reliable Power.” The purpose of the hearing was to gauge community support for the power plant. But for some of those in the crowd, it was just another acting gig. At least four of the people in orange shirts were professional actors. One actor said he recognized 10 to 15 others who work in the local lm industry. They were paid $60 to wear the orange shirts and attend meetings in October and February. Some got $200 for a “speaking role,” which required them to deliver a prewritten speech, according to interviews with the actors and screenshots of Facebook messages provided to The Lens. “They paid us to sit through the meeting and clap every time someone said something against wind and solar power,” said Keith Keough, who heard about the opportunity through a friend. He said he thought he was going to shoot a commercial. “I’m not political,” he said. “I needed the money for a hotel room at that point.” They were asked to sign non-disclosure agreements and were instructed not to speak to the media or tell anyone they were being paid. But three of them agreed to talk about their experience and provided evidence that they were paid to endorse the power plant. Two spoke on the condition that they not be identi ed, saying they didn’t want to jeopardize other work or get in trouble for violating the non-disclosure agreement. Another attendee, an actor and musician who played a small role on HBO’s “Treme,” told WWL-TV he was paid to wear one of the orange shirts at a meeting of the council's Utility Committee. Paying people to create the illusion of grassroots support is sometimes known as "astrotur ng." Although it’s misleading, it appears to be legal. Louisiana’s lobbying laws cover only money spent directly on public of cials. But Councilwoman Stacy Head called what happened in those meetings “disturbing.” Councilwoman Susan Guidry, the only member of the Utility Committee to vote against the plant, called it “morally reprehensible,” saying, “I think it had a phenomenal impact on public opinion.” The two men who recruited and organized the actors, Garrett Wilkerson and Daniel Taylor, appear to be from out of town. In an earlier story about the October hearing, Wilkerson offered an apocalyptic prediction about what would happen to New Orleans if the power plant weren’t built. It remains unclear who was behind the effort, but Guidry has a guess. “How can you not link Entergy to this?” she said. “Who else would have paid all these people to come there and say they want a gas- red power plant?” Entergy New Orleans did not respond to repeated requests for comment. The company told WWL-TV, “Entergy New Orleans did not pay anyone to attend.” In a Facebook message, Wilkerson indicated he was working with Crowds on Demand, a Los Angeles-based company that does exactly what its name suggests. “If you need speakers to present at a council meeting, we can provide talented and well-spoken individuals to advocate for the cause,” the company says on its website. The company didn’t respond to requests for comment. Entergy offered various reasons to build the power plant during an application process that lasted almost two years. First, the company said the city faced a shortfall in generation capacity. When demand projections didn’t bear that out, the company shifted its rationale, saying the new plant was necessary to mitigate a potentially catastrophic transmission failure. Opponents countered that the utility could address that problem by upgrading its transmission lines for a fraction of the cost of the power plant. They said the City Council and its utility advisers, who recommended building the plant, didn’t consider alternative solutions that would cost less and avoid polluting eastern New Orleans. In March, the council approved the power plant by a vote of 6-1. ‘A Hollywood experience’ A few days before the October hearing, Wilkerson promoted a gig on Facebook. In one post, he wore the orange shirt. He offered “60200 dollarydoos to help with a gig for ~3 hours.” Word spread through the local lm industry, where people are always looking for freelance work. “Before we get started I need you to sign a nondisclosure agreement, that cool?” Wilkerson asked in a Facebook message when one actor responded. He explained that he needed people to sit through a City Council meeting and endorse Entergy’s bid for a new power plant. “The council already supports it; this is mostly just to show them that the citizens don’t have a problem with it,” he wrote. “Free pizza and a round of drinks after it’s over, at which point pay will be dispersed in cash. … I’m prepared to offer you a non-speaking role for $60 plus bonus potential.” Wilkerson explained that he would get a “recruitment bonus” for everyone he brought. A higher bar was set for speaking roles. “To audition for a speaking role, video yourself giving a 1 3 minute persuasive speech on the topic of your choice,” Wilkerson wrote to one of his recruits. Wilkerson sent a list of more than 30 possible talking points about the Entergy plant to people who passed the test and told them to choose their favorites. They included comparisons of New Orleans to the Third World, praise for Entergy’s commitment to renewable energy, fears of hurricanes and tornadoes, and connections between the power plant and the city’s crime rate. “Entergy has been more than fair opening this process for public input,” read one of the talking points. “I see no reason to belabor this any further. Our only option to address the power disruptions is proceed with the new plant. There is no Plan B!” Wilkerson aggregated the chosen talking points into a uni ed statement. “I’ll be sending you a full speech in a few hours,” he told one of the recruits. “It was like a Hollywood experience,” said Andrew Wiseman in a video posted by the Alliance for Affordable Energy, which opposed the plant. “But I didn’t know what I was in for, really.” Supporters lled room Wilkerson told people to meet at a nearby hotel an hour and a half before the October meeting. As dozens of people in uorescent shirts walked through the metal detectors at City Hall that day, they were asked by a reporter why they had come to support the power plant. Each gave the same answer: “Talk to Gary,” referring to Garrett Wilkerson. One of the hired actors said they were instructed to arrive early and ll the room before the opposition got there. Soon after the meeting began, the council chamber was full. Residents who arrived late were barred from entering. At one point, Guidry asked people who had already spoken to make room for others waiting to get in. One of the people locked out was Danil Faust, who at the time was running for a seat in the state House. Eventually, he got in. “I walk in and the rst thing I see is a really close friend of mine in an orange shirt in the third row,” he said. “And he sees me and just puts a nger to his lips.” That friend was Keough. After the meeting, Faust persuaded Keough, who was about to move to North Carolina, to tell him what was going on. In later meetings, Faust openly accused Entergy of paying people to be there. Wilkerson took notice and told his people to avoid Faust, according to Facebook messages and two of the actors. They were directed to the nearby Dave & Buster's to get paid. “It was very shady, very secretive, especially when we got paid,” said one of the actors. “They literally paid us under the table.” The organizers didn’t follow through on the promise of free pizza and drinks, so everyone got an extra $20, according to the actors. Residents lled out 99 speaker cards at the October meeting: 47 in support of the plant, 32 opposed, and 20 that didn’t say one way or another. Dozens of people wore the orange shirts, but some may not have been paid to do so. For example, Entergy New Orleans CEO Charles Rice Jr. was surrounded by people in orange shirts whom he seemed to know personally. When the council convened March 8 for the nal vote on the power plant, Wilkerson was back in Texas. The council chamber was dominated by opponents; the sea of orange shirts was nowhere to be found. “I was stuck by how few people came to speak in favor of the power plant at the last meeting, when no one was being paid,” Guidry said. Lawyers representing a coalition of power plant opponents plan to ask the Louisiana Attorney General’s Of ce, the Orleans Parish District Attorney’s Of ce and the City Council to investigate who paid the actors and whether any laws were broken. The same coalition — the Deep South Center for Environmental Justice, VAYLA New Orleans, Justice and Beyond, 350 New Orleans and the Sierra Club — led a separate lawsuit against the council in April. Among other things, it alleged that the council broke the state's open meetings law by keeping people out of two meetings concerning the proposed power plant. “The fact that people were locked out of meetings is bad enough,” said attorney William Quigley, who helped write the complaints. “But if you’re locked out because there are people who are being paid to sit in there and ll it up so that you can’t get in, that’s even worse.” In an af davit, Michael Brown, an attorney for the Sierra Club, identi ed three actors who spoke at the meeting. One told The Lens he’d been paid; one denied it. The astrotur ng industry It’s not unusual for organizations to arrange grass roots support or opposition at government meetings. Groups often drive people to meetings, pass out statements and coach them on talking points. It is less usual for people to be paid to weigh in on an issue they may have no knowledge or opinion about. However, "astroturf" lobbying may be more common than many think. Crowds on Demand is one of the few companies that advertise this kind of work. But UCLA professor Edward Walker, who wrote a book about the phenomenon called "Grassroots for Hire," said many other crowd services operate under the radar. “There are hundreds of such rms across the country,” he told CNN in January. “By my estimate, around 40 percent of the Fortune 500 (companies) appear on the client list of at least one such rm.” Guidry said she talked to Council President Jason Williams, who chairs the Utility Committee, about the paid speakers. She said he agreed that the council should take some kind of action. But she doesn’t know how this sort of organizing could be regulated without violating the First Amendment. At the October meeting, Taylor and Wilkerson said they were part of a new organization called the Council for Responsible Governance. The Lens could not nd any evidence of the existence of this group. The non-disclosure agreements named “DG Consultants and associated entities.” There is no registered business under that name in Texas, where Wilkerson and Taylor appear to live, or in Louisiana. In a phone call last week, Taylor said he was a campaign director. “I’m brought in to help run grass-roots organizations and campaigns,” he said. He would not say who hired him. Wilkerson did not respond to requests for comment. “These guys, Gary and Daniel, they travel,” one of the actors said. “They do this for all sorts of organizations. They’ve got a pretty sweet gig.” In a Facebook message after the February meeting, Wilkerson said he hoped to get more work locally. “I like New Orleans more than anywhere else we’ve been sent,” he said.  Appendix C Appendix D City Council could face lawsuit following public hearing on Entergy plant wwltv.com/article/news/local/city-council-could-face-lawsuit-following-public-hearing-on-entergyMarch 8, 2018 City Counc l could face lawsuit following public hearing on Entergy plant LOCAL "Entergy has corrupted the process. It's just outrageous." Author: Kristin Pierce Published: 6:54 PM CST March 7, 2018 Updated: 8:24 AM CST March 8, 2018 A group of people against the Entergy power plant gathered in front of City Hall Wednesday. They had strong allegations against Entergy New Orleans that could result in a lawsuit against City Council. “I think Entergy doesn’t play fair,” said resident Happy Johnson. And here’s why: this group says Entergy New Orleans, or one of its supporters, paid people to attend the last City Council utility committee meeting and take up several seats for ratepayers who are against the $210 million gas plant proposal. Rev. Gregory Manning of Broadmoor Community Church said, “It says that Entergy’s customers are not valued, not appreciate, that their voices do not deserve to be heard.” Actor Andrew Wiseman, who had a role in the show Treme, says he was one of those paid supporters. “Just sit down, wear a t-shirt, don’t talk, don’t open your mouth,” Wiseman said he was told. Wiseman says he heard about the gig through one of his acting buddies. He said they weren’t told what they were going to be doing before they walked in the council meeting. After the meeting, he was paid $120 in cash. “Entergy has corrupted the process. It’s just outrageous,” said Johnson. 1/2 Entergy released a statement saying in part, “seats were available on a first-come, firstserved bases and Entergy New Orleans did not pay anyone to attend.” Even if they had, it may not have been illegal. "It wouldn’t be a crime for Entergy to hire people to come to a meeting, however, it would be unethical,” Loyola University Law Professor Bill Quigley said Quigley also says the council violated public meetings law by shutting dozens of people out the meeting despite empty seats inside. New Orleans City Council Member-at-large Jason Williams disputed that claim saying that is “inaccurate and misstates the facts. The committee was committed to making sure that every member of the public who wanted to speak had that opportunity." This group isn’t convinced. “The council is making the decision that benefits profits over people and we want to stop that," Johnson said. “A lot of us in the city are just used to things happening, going the way of those who are in power, those who are in control,” added Rev. Manning. 2/2 Appendix E Entergy says it didn't hire actors to attend council meeting wdsu.com/article/entergy-says-its-not-behind-hiring-actors-to-attend-council-meeting/20639622 May 10, 2018 NEW ORLEANS — There are accusations that paid actors may have been present during controversial meetings concerning Entergy's proposal to build a power plant in New Orleans East. It's unclear who they were, or who possibly hired them. Entergy officials said they didn't hire any actors. Now, the New Orleans City Council said it will look into the matter to learn who may have paid several actors to attend and speak at the City Council hearing. If actors were hired, it would not be illegal, according to the Orleans Parish District Attorney's Office. Many people living in New Orleans East feel that actors were used in an attempt to misrepresent support for the plant. In a written statement, City Council President Jason Williams said: "It is truly frustrating that this two year process has been compromised by the actions of irresponsible persons or entities. The harmful impact of this nefarious practice is unfortunate, unappreciated and repulsive to true democratic deliberative process." Entergy, which is conducting its own investigation, said: "As we have stated previously and can now confirm, Entergy did not authorize or direct any person or entity to pay individuals to attend or speak at city council meetings. We are close to finalizing our internal investigation into this matter, and we will make our findings public as soon as the investigation is complete." Those against the plant say the truth needs to come out. "We know people were paid, we know someone paid them, but we don't know who are the people who paid the actors and that is interesting that it took Entergy a couple of days to figure out that they didn't pay them -- and that's a good thing, but someone associated with this approval process did pay them," said Bill Quigley, an activist who is opposed to the plant. Ultimately, council members did approve the proposed power plant. Keep up with local news, weather and current events with the WDSU app here. Sign up for our email newsletters to get breaking news right in your inbox. Click here to sign up! 1/2 2/2 Appendix F https://www.nola.com/news/article_5724aa21-e8dc-51f2-a846-72a8c50a84f9.html Entergy 'con rms' it didn't pay actors at council meeting, but will cooperate with probe Advocate sta report MAY 9, 2018 - 10:17 AM Entergy said Wednesday it can "con rm" the company didn't authorize payments to actors to support a power plant proposal in New Orleans East, but that they'll cooperate with an investigation called for by the City Council.  The statement speci cally stated that it did not "authorize or direct and entity to pay individuals." Entergy said it's close to nalizing its own internal investigation into the allegations, and that it plans to make its ndings public soon.  "The allegations that individuals were paid to attend or speak at certain public meetings run counter to our values. We believe public discourse about important projects such as the New Orleans Power Station must be rooted in integrity and transparency, and we will work cooperatively with the City Council on any questions they may have related to this matter," wrote Entergy in a statement, reiterating what they had stated days earlier.  Council President Jason Williams, one of six council members who voted to approve Entergy’s plant in March, said Tuesday that he will push for a council probe into accusations that have “compromised” the two-year approval process. The allegation that actors were paid to impersonate plant proponents was rst reported by The Lens, a nonpro t local news website. The Lens interviewed at least three people who said they were paid by representatives of a rm called Crowds on Demand to speak in support of the power plant. That rm gives talking points and compensation to actors to support or oppose public policies. The actors said that people were paid $60 every time they showed up at council meetings about the power plant and $200 if they spoke in support of the plant. They were asked to sign a non-disclosure agreement that barred them from talking about their arrangement, according to The Lens. Directly paying people to feign support for a particular policy is known as "astrotur ng," an apparently legal practice not previously employed in New Orleans, at least so far as is known. Appendix G Report of Investigation New Orleans Power Station Advocacy May 10, 2018 EXECUTIVE SUMMARY This memorandum addresses allegations contained in a recent lawsuit and in recent news reports that some people were paid to attend or speak as supporters of the Entergy New Orleans, LLC’s (ENO’s) proposed New Orleans Power Station (NOPS) at certain public meetings sanctioned by the Council of the City of New Orleans (Council). As a result of these allegations, we undertook a detailed internal investigation to determine whether any such payments occurred and whether anyone at Entergy made such payments, authorized such payments, or had previous knowledge that such payments would be or were being made. Upon completing our investigation, we can confirm that Entergy did not pay, or authorize any other person or entity to pay, supporters to attend or speak at Council meetings, nor were we aware that any person or entity engaged on our behalf would do so or had done so. This conclusion is true of Entergy New Orleans, LLC, Entergy Corporation, and all other Entergy companies (collectively, Entergy). ENO contracted with The Hawthorn Group (Hawthorn), a national public affairs firm, to assist with organizing local grassroots support for NOPS at two public meetings relating to NOPS: the public hearing at the Council on October 16, 2017, and the Council’s Utilities, Cable, Telecommunications and Technology Committee (Utility Committee) meeting on February 21, 2018. We have learned from our investigation that Hawthorn, without the Company’s knowledge or approval and contrary to the requirements of our contract, subsequently retained a subcontractor, Crowds on Demand. We further learned that Crowds on Demand did pay individuals that it recruited to appear and/or speak at those two meetings. Hawthorn has admitted that their engagement of Crowds on Demand was without the knowledge or approval of anyone at Entergy. Again, no one at Entergy authorized or directed any person or entity to pay individuals to attend or speak at any of the Council meetings. The unauthorized subcontract was a violation of our primary contract with Hawthorn, the payments made by Crowds on Demand run directly counter to Entergy’s corporate values and current business practices, and they 1 would have been flatly prohibited by Entergy if we had any prior notice about the planned payments. While no one at Entergy paid, authorized, or had any previous knowledge of this payment activity, we recognize that our interactions with our stakeholders must always be based on honesty and integrity, and we take ultimate responsibility for the actions of those purporting to act on our behalf. We are taking immediate steps to ensure such a situation never arises again. THE INVESTIGATION The investigation was conducted internally primarily by attorneys who were not directly involved in the New Orleans Power Station proceeding. They conducted interviews of numerous employees who were involved in the NOPS proceeding, including those who were involved in retaining Hawthorn, and/or were themselves involved in developing grassroots support for NOPS. Additionally, to the extent necessary to confirm the facts, Entergy spoke with representatives of Hawthorn including its Chairman and CEO and Crowds on Demand including its founder and CEO, to obtain the facts of what occurred from their viewpoint. Hawthorn has also provided a letter outlining its role in the events. In addition, the investigation included the application of electronic discovery techniques, including the search and review of thousands of pages of contracts, contract change orders, emails, and other relevant documents. RELEVANT FACTS Two meetings arranged by the Council are implicated in recent news coverage alleging that supporters of the New Orleans Power Station (NOPS) were paid to attend or speak at those meetings: an October 16, 2017 public hearing to receive public comment on NOPS and a February 21, 2018 meeting of the Utility Committee at which the Utility Committee voted 4-1 to recommend approval of NOPS to the full Council. At each of these meetings, extensive public comment, both in favor of and in opposition to the proposed plant, was received and recorded by a court reporter and by videotape. Including a subsequent meeting on March 8, 2018 at which the full Council approved NOPS, there were more than 12 hours of public comment, and more than 100 people spoke, some at multiple meetings. In anticipation of the upcoming public meetings, in fall of 2017, ENO retained Hawthorn, a national public affairs company with headquarters in Virginia, to assist in developing grassroots support for the proposed plant, including mobilizing supporters to attend and to speak at the October 16th meeting. The contract specified that Hawthorn would turn out 75 supporters, 10 of whom would speak at the meeting. The supporters were to prepare their own handmade signs, but would be provided with branded t-shirts. Hawthorn represented in the contract that “it has the competence to perform the Work, the necessary personnel, will use best efforts to perform the work in a professional manner, will not perform any work that it cannot perform in accord with contract, will perform in good faith, will perform with highest 2 standards of care and practice appropriate to nature of work and exercise the highest degree of thoroughness, competence and care customary in the utility industry.” The contract with Hawthorn does not contemplate or authorize that any of these supporters would be paid for their attendance. We have confirmed that no one at Entergy who engaged or worked with Hawthorn or was involved in any manner in organizing support for NOPS was informed at any time that any supporters turned out by the work of Hawthorn would be paid. Based on our contract and their national reputation, Entergy fully expected that Hawthorn would identify legitimate supporters for the plant and encourage them to attend the meeting. Indeed, in a communication to Entergy Hawthorn specified that they would turn out New Orleans citizens who support building NOPS for their own reasons (jobs, local energy, reliability, economic development, community investment, etc.) and that these will be real supporters whom they have identified, recruited and educated about the benefits of the power station and why it is the most desirable solution at this time and for future energy needs. ENO’s contract with Hawthorn also clearly provides that “Work shall be performed solely by Contractor or by those Subcontractors that Company may from time to time allow by its prior written approval.” However, without informing ENO or seeking its approval and in violation of the contract, in or about September 2017, Hawthorn retained a subcontractor, Crowds on Demand, to assist with fulfilling its contractual obligations. The provision in our contract with Hawthorn was specifically included to ensure that the services for which we contracted would be provided by Hawthorn and its employees, and in the manner expected, based on the experience and reputation of Hawthorn, and not by an unapproved subcontractor. At the October 16 meeting, the Council Chambers were filled to capacity, and some people were unable to be seated due to space limitations. A significant portion of the audience was filled with NOPS supporters wearing bright orange t-shirts that read “Clean Energy. Good Jobs. Reliable Power.” Many of the NOPS supporters—employees, retirees, union members and others—attended and/or spoke as a result of community outreach efforts by ENO’s own personnel to present their genuine support of the proposed facility. No compensation was offered or paid to those supporters. 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 meeting. Prior to the February 21, 2018 Council Utility Committee meeting, ENO again contracted with Hawthorn to recruit 30 supporters, including 10 speakers to attend that meeting. As at the October meeting, many genuine supporters attended; however, we now know that Crowds on Demand also recruited and compensated people to attend this meeting. After those meetings had occurred, on March 5th, Entergy received an email distributed by opponents and on March 7th, we received a related inquiry from a blog writer who posed the following specific question and the alleged facts underlying the question: 3 Has Energy paid anyone to speak in favor of the company’s proposed new project in New Orleans East at any of the public meetings/hearings- including any past council meetings, the meeting tomorrow on the 8 or at the DEQ permit hearing last night? There is a man who has gone on the record to say he was hired and paid $120 as an actor to speak on behalf of Entergy about his support for the new proposed plant at a previous city council meeting. Entergy immediately sent emails to Hawthorn for its response to these allegations. Hawthorn responded: “Apparently their evidence is one person who is dilusional [sic] or lying.” Hawthorn also advised Entergy to respond by saying, among other things, “that’s simply not true.” Hawthorn did not reveal its relationship with Crowds on Demand to Entergy at that time. On March 8, 2018 the full Council met and voted 6-1 to approve NOPS. There was no contract with Hawthorn relating to this March 8 th Council meeting. No supporters were recruited or paid by Crowds on Demand, Hawthorn, or any other person or entity to attend or speak in support of NOPS at the March 8th meeting. An estimated 250 community members attended the meeting, with 100 to 200 in attendance to oppose the facility. After several hours of public comment, the Council voted 6-1 in favor of the plant and adopted the over-180 page Resolution approving the plant. On April 19, 2018, the Council denied a Petition for Rehearing, also by a 6-1 vote. On April 19, 2018, several intervenors and a few individuals filed a lawsuit in Civil District Court in New Orleans claiming that the manner in which the public meetings on February 21 st and March 8th were conducted—preventing some members of the public from attending the entire meeting due to fire safety regulations regarding the capacity of the rooms—was a violation of the Louisiana Open Meetings law. The lawsuit also includes allegations of payments to supporters, including actors. These allegations are not central or even relevant to the Open Meetings law violation claims. However, written allegations contained in a lawsuit are distinct from the numerous wild and in most cases unsubstantiated allegations thrown out by opponents of the plant during the long public comment period. Thus, when the lawsuit was filed Entergy began an investigation into the validity of the allegations. The New Orleans Power Station was approved by the City Council after approximately 21 months of Council proceedings, including multiple public hearings and meetings organized by the Council, voluminous discovery on every aspect of the proposal, thousands of pages of expert testimony and exhibits, and a weeklong evidentiary trial. Moreover, Entergy itself conducted some 22 community meetings touching each Council District in an effort to inform the public about the need for the plant. Entergy firmly believes that, consistent with the Council’s own rules, the Council voted in support of NOPS based on the merits of the case and the evidence presented by all parties involved in the proceeding. 1 1 The New Orleans Municipal Code provides in pertinent part that “(b) Whenever it is deemed desirable by the council that members of the public at large who are not parties of record should be heard on any matter under this article, or wherever such hearing is required by the city charter or any applicable law, the council president or other presiding officer shall declare at the beginning and end of the at-large hearing the nature of such hearing, 4 In conclusion, the investigation has determined that no one at Entergy paid anyone to attend or speak at any Council meeting, nor did anyone at Entergy direct or authorize any contractor or subcontractor to pay anyone to attend or speak at the October or February Council meetings or any other meeting related to NOPS. In fact, the actions of Crowds on Demand, which was engaged by Hawthorn contrary to the requirements of our contract with Hawthorn, were taken without Entergy’s knowledge or approval. Such actions are contrary to our values and would have been specifically prohibited or stopped had we been made aware. NEXT STEPS We recognize that our interactions with our stakeholders must always be based on honesty and integrity, and we accept ultimate responsibility for the actions of those purporting to act on our behalf. We are taking immediate steps to ensure that no similar situation arises in the future, including the following: · Entergy has ended its contractual relationship with The Hawthorn Group. All fees paid to Hawthorn for work under the NOPS support contract will be returned to Entergy. Entergy will donate those refunded fees to charitable organizations. · Entergy is amending its mandatory Supplier Code of Conduct to expressly prohibit the practice of paying individuals to attend or speak at any public meeting or meetings before any governmental, regulatory or other agency with oversight over Entergy’s operations. Entergy’s Supplier Code of Conduct communicates Entergy’s expectations that contractors act with the highest ethical and legal standards in their business activities with Entergy. · Entergy is taking steps to ensure that all new applicable contracts expressly prohibit the practice of paying individuals to attend or speak at any public meeting or meetings before any governmental, regulatory or other agency or body with oversight over Entergy’s operations. · Entergy is developing and implementing training for the relevant employees and contractors in order to periodically educate them regarding Entergy’s prohibition against the practice of paying individuals to attend or speak at any public meeting or meetings before any governmental, regulatory or other agency or body with oversight over Entergy’s operations. · Entergy will immediately contact all relevant vendors to ensure that they comply with Entergy’s prohibition of the practice of paying individuals to attend or speak at and shall declare that no part of statements made or evidence adduced at such at-large public hearing shall, in legal terms, form (and such matter shall not form) the basis of any council decision in a contested proceeding.” Municipal Code of the City of New Orleans, Section 158-431 (b) (emphasis added). 5 any public meeting or meetings before any governmental, regulatory or other agency or body with oversight over Entergy’s operations. · Entergy will conduct periodic contract performance assessments to verify compliance with its prohibition of the practice of paying supporters to attend or speak at any meeting before any governmental, regulatory or other agency or body with oversight over Entergy’s operations. · Entergy New Orleans will not include any contract costs related to grassroots advocacy work in the rates set for the New Orleans Power Station. 6 Appendix H City Council Revises Public Comment Cards council.nola.gov/news/june-2018/city-council-revises-public-comment-cards NEW ORLEANS - In advance of Thursday's regularly scheduled City Council Meeting, public comment cards have been revised to request reflection of a speaker receiving compensation for their testimony. Cards for both public comment on agenda items and zoning matters have been updated. The new public comment cards will do the following: Provide Signature line for speaker to affirm that their statements are true and correct; Provide a check-box to acknowledge whether the speaker is receiving any type of compensation for their comments or attendance; Update the land use and committee card to appear more professional; Limit the General Matters Card to only one agenda item. 1/2 Council President Jason Williams says, "This is just one in a series of steps that I believe we must take to defend our democratic process in the wake of the use of paid actors. Any attempt to pervert the true purpose of public discourse will not be tolerated. There is a difference between someone who does not have a ride to City Hall receiving transportation and actors getting a check for a performance. To be clear, this is not an attempt to restrict or encumber true grassroots organizing, but rather an effort to vet out the power and influence of money in public hearings." Council Vice President Helena Moreno says, "To protect the public, our public processes, and - critically - the First Amendment Rights of all citizens, we need to bring as much transparency as possible to the Council Chambers. Making it clear, at the outset, if anyone has received something of value in exchange for their appearance or testimony, helps the public and council properly weigh comments made in the chamber. We want all participants to know if any testimony is motivated by or in exchange for some type compensation and not by genuine interest in our democratic process. These changes help secure and elevate public comment for the engaged public, not for actors or special interests." ### Media Contacts: Keith D. Lampkin Chief of Staff Councilmember Jason Rogers Williams, At-Large kdlampkin@nola.gov (504) 658-1073 2/2 Appendix I Okla Jones, II, Esq., La. Atty. Gen. Op. No. 89-481 (1989) La. Atty. Gen. Op. No. 89-481 (La.A.G.), 1989 WL 454475 Office of the Attorney General State of Louisiana Opinion No. 89-481 December 14, 1989 *1 90-B-4 Public Meetings The Committee of 25 private citizens to advise the Mayor on revisions of the City Charter, is subject to the open meetings law. Okla Jones, II, Esq. City Attorney City of New Orleans City Hall New Orleans, La. 70112 Dear Mr. Jones: This office is in receipt of your request for an opinion of the Attorney General. Your question, as I understand it, is as follows: Is the Committee of 25, a private citizen’s advisory committee appointed by the Mayor in order to offer advice on possible revisions of the City Charter, subject to compliance with the Open Meetings Law? As noted by this office in Atty.Gen.Op. No. 82-671, the Open Meetings Law applies to all “public bodies”, but the obvious question is what is encompassed in the term. Therein it was stated the term includes any committee or sub-committee of a state board so long as the committee possesses “policy making, advisory or administrative functions.” R.S. 42:4.2. In conclusion, it was stated, “If the council is strictly a discussion group which makes no policy suggestions and gives no advice to the board it may not fall within the Open Meetings Law; however, the Board should note that the Legislature expressly provided that the Open Meeting Law should be liberally construed and thus, if the committee does advise the Board in any way the committee’s meetings should comply with the open meeting law.” Of similar import is Atty.Gen.Op. 79-1392 in regard to a committee of private citizens appointed by the Mayor of the City of Bastrop to study the financial affairs of the City and make recommendations on the possibility of salary increases. Therein it was concluded that the committee was a public body and its meeting should be open to the public reasoning its function can be classified as a subcommittee of the municipal governing body. Further it was observed since the deliberations will constitute an element of the formulation of public policy, the intent of the Open Meetings Law could be frustrated if the committee meetings are closed to the public. Accordingly, it was concluded the committee should meet in public so that interested citizens can have the benefit of deliberations and decisions which could have a profound effect on the public policy of the City. We find no reason to reach a different conclusion in the instant case. If the pertinent portion of R.S. 42:4.2 is read wherein “public body” is defined it states that “public body” means, in addition to any village, town and city governing authorities, “any other state, parish, municipal, or special district boards, commissions, or authorities, * * * including any committee or subcommittee of any of these bodies enumerated in this paragraph.” It would appear a committee appointed by the mayor as chief executive officer would by this definition be a subcommittee of a municipal authority and a “public body” and we do not feel a committee appointed by the mayor should be treated any differently than that appointed by the council. Moreover, this conclusion finds support in the mandate of the legislature in R.S. 42:4.1 that the Open Meetings Law be liberally construed and to find otherwise would be in contravention of this directive. *2 Under this liberal construction the Mayor would constitute the “public body” which established the private citizens © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Okla Jones, II, Esq., La. Atty. Gen. Op. No. 89-481 (1989) advisory group and as such would be obliged under the dictates of R.S. 42:6.1(D) to comply with the provisions of R.S. 42:7 in providing the required notice of meeting of such group or committee. Therefore, based upon a reading of the Open Meetings Law with this mandate in mind and earlier opinions of this office, it must be concluded that the meetings of the Committee of 25 are subject to being open to the public inasmuch as they are a committee of the mayor who are to meet to deliberate over the City Charter in order to advise on possible revisions. We hope this sufficiently answers your question, but if we can be of further assistance, please do not hesitate to contact our office. Your very truly, William J. Guste, Jr. Attorney General By: Barbara B. Rutledge Assistant Attorney General La. Atty. Gen. Op. No. 89-481 (La.A.G.), 1989 WL 454475 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Mr. Ricky L. Babin, La. Atty. Gen. Op. No. 01-81 (2001) La. Atty. Gen. Op. No. 01-81 (La.A.G.), 2001 WL 461341 Office of the Attorney General State of Louisiana Opinion No. 01-81 March 28, 2001 *1 90-B-4 Public Meetings R. S. 42:4.2 A committee or subcommittee who deliberate so as to advise a public body is subject to the Open Meetings Law when a majority of the members of the committee are present. Mr. Ricky L. Babin Assistant District Attorney 23rd Judicial District 430 South Burnside, Suite A Gonzales, LA 70730 Dear Mr. Babin: This office is in receipt of your request for an opinion of the Attorney General on behalf of the Parish President in regard to the application of the Open Meetings Law when the Council meet as a committee or a sub-committee. You indicate the Ascension Parish Council is the governing authority for the parish, and has certain working committees that are comprised of certain council members, but a majority of the entire council does not engage in any one of these committee meetings. These committees meet from time to time to discuss various issues, and then report back to the full council in an open public meeting. These working committees, being composed of less than a quorum of the Council, do not provide any of the notifications required in the Open Meetings Laws. The Parish President is asking whether such committee meetings, although composed of less than a quorum of the council, constitute any violations of the Louisiana Open Meetings Law when notifications required by the Open Meetings Law are not provided. This office has consistently concluded that such committee meetings that are not actions of the full authority but discuss pertinent matters for recommendations to be presented at public meetings are required to have notice pursuant to the Open Meetings Law. In Atty. Gen. Op. 83-728 this office noted that a public body and its committees or subcommittees are subject to the provisions of the Open Meetings Law. Thereafter in Atty. Gen. Op. 83-728A this office specifically responded to the inquiry whether a committee consisting of four members, where the governing body consists of nine members, would constitute a quorum so as to require notice and public meeting. It was again stated that a public body and its committees or subcommittees are subject to the Open Meetings Law when the initial deliberation of public policy which is to be recommended by the Commission is transacted upon at the committee or subcommittee level. This office opined as follows: Committee meetings which are not the actions of the full parish council, but nevertheless discuss pertinent matters to which are presented at public meetings are required to hold notice pursuant to the Open Meetings Law (R.S. 42:2 et seq.). In other words, where a committee of a public body is composed of fewer members than the body itself, a quorum consists of a majority of the members of the committee. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Mr. Ricky L. Babin, La. Atty. Gen. Op. No. 01-81 (2001) In Atty. Gen. Op. 84-395 this office noted that a “public body” includes any committee or subcommittee of a city governing authority, and the fact that a committee cannot make a final decision on a matter does not remove meetings of that committee from the ambit of the open meeting requirements. It was found, “In conclusion, a working committee of a municipality constitutes a public body when it meets to discuss matters over which it has authority or advisory power, even if the committee takes no binding action.” *2 Similarly, in Atty. Gen. Op. 89-481 this office noted that R.S. 42:4.2 defined “public body” as including any state, parish, municipal or specials district, boards, commissions or authorities and “any committee or subcommittee of any of these bodies enumerated in this paragraph.” It further found that the Open Meetings Law should be liberally construed and “if the committee does advise the Board in any way, the committee’s meetings should comply with the open meeting law.” It was particularly noted since the deliberations would constitute an element of the formulation of public policy, the intent of the Open Meetings Law could be frustrated if the committee meetings are closed to the public, and the committee should meet in public so that interested citizens can have the benefit of deliberations and decisions which could have a profound effect on the public policy. This office recognized in Atty. Gen. Op. 90-300 the Open Meetings Law does not apply to a discussion group that makes no suggestions or gives any advice, but when convened to receive information over a matter that they have supervision, it is subject to the Open Meetings Law. It was found to apply to any committee or subcommittee so long as they possess policy making, advisory or administrative functions. Therefore, we would conclude a committee or subcommittee, who deliberate so as to advise the governing authority, is subject to being open to the public when a majority of the members of the committee are present so as to constitute a quorum to conduct the committee’s business. We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us. Sincerely yours, Richard P. Ieyoub Attorney General By: Barbara B. Rutledge Assistant Attorney General La. Atty. Gen. Op. No. 01-81 (La.A.G.), 2001 WL 461341 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Appendix J Appendix K STANDING COMMITTEES Rule 39. The following standing committees shall be appointed by the President of the Council, subject to Council confirmation by motion: 1. Budget, Audit, and Board of Review Committee 2. Community Development Committee 3. Criminal Justice Committee 4. Economic Development and Special Projects Committee 5. Governmental Affairs Committee 6. Public Works, Sanitation and Environment Committee 7. Transportation and Airport Committee 8. Utility, Cable, Telecommunications and Technology Committee Except as otherwise provided by this rule, each committee shall consist of five members. The following rules shall apply to the Standing Committees: (M-14-132, Adopted 4/24/14) Rule 39A. 1. COMMITTEE ASSIGNMENTS. Designation of Council committees, responsibilities, committee chairpersons and members, shall be accomplished, if necessary, by no later than the first regular meeting of June each year. The President of the Council shall make all such designations, subject to Council confirmation by Motion, provided, however, that a majority vote of the members of the Council may, at any regular or special meeting of the Council, redesignate or change any or all such designations. (M-99-569, Adopted, As Amended 10/7/99); (M-00-656, Adopted 10/27/00) 22 2. DUTIES OF COMMITTEES. The committees shall acquaint themselves with the interests of the City specifically represented by the Committee, and shall make recommendations to the full Council on Council Ordinances, Motions, Resolutions, other matters, and such other reports as in their judgment will advance the interests and promote the welfare of the people of the City of New Orleans. 3. (M-99-569, Adopted, As Amended 10/7/99) REFERRAL OF MATTERS TO COMMITTEES. Proposed Ordinances, Motions, Resolutions, or other matters may be referred to the appropriate Council committee in any of the following ways: a. Prior to or during any Regular or Special Council meeting, the President, in his/her discretion, or Council by vote, may refer any proposed ordinances, motions, resolutions, or other matters, to the appropriate Standing Committee or Special Committee for further review. b. (M-07-277, Adopted, As Amended, 7/26/07) In the interest of efficiency, draft Ordinances, Motions, Resolutions, or other matters may be considered by the appropriate Standing or Special Committee upon request of the author or authors of such matters or upon request of the committee chairperson. 4. DUTIES OF THE CHAIRPERSON. The Chairperson of the standing committee shall have the following duties: a. Schedule and call the meeting after consultation with other committee members; cause an agenda to be prepared after 23 soliciting input from other committee members who may wish to include items on the committee agenda; publish an agenda no later than twenty-four (24) hours prior to the date and time of the scheduled meeting; call the meeting to order at the appropriate time; record the beginning and ending time of the meeting; and cause minutes of the meeting to be prepared and distributed to the full Council within a reasonable time period. (M- 07-277, Adopted, As Amended, 7/26/07); (M-11-160, Adopted, As Amended 5/19/11) b. Determine and state the amount of time allowed for speakers, and announce instructions to the speakers at the start of the meeting. c. Recognize Councilmembers and others who wish to speak. d. Keep to the time schedule. e. Stop testimony when repetitive or irrelevant. f. Suspend the rules upon concurrence of a majority of committee members. g. 5. Preserve order and decorum. COMMITTEE REPORTS. (M-99-569 Adopted, As Amended 10/7/99) Reports of committees shall be forwarded to the Clerk of Council and each member of the Council. 6. DIVIDED REPORTS. A divided report shall be prepared and filed when there is not unanimity on a recommendation. The divided report will contain the different positions of the committee members subscribing thereto and the position of the majority of the committee shall be listed first. (M-99-569, Adopted, As Amended 10/7/99) 24 7. ACTION REQUIRED. The Clerk of Council shall place on the Regular Council Agenda any Ordinance, Motion, Resolution, or other matter not reported out of a committee within forty-five (45) days from the date of assignment to the committee or a date specified and the Council may then act upon the matter. (M-07-277, Adopted, As Amended, 7/26/07); (M-11-160, Adopted, As Amended 5/19/11) 8. ASSIGNMENT TO ENTIRE COUNCIL. The President or a majority of the Councilmembers may assign any matter which otherwise would be assigned to a committee to the full Council for appropriate review and action when the subject to be considered contains many items and related to diverse subjects, or is of significant concern to all the Councilmembers. (M-99-569, Adopted, As Amended 10/7/99) Rule 39B. When practical or in the interest of improving efficiency, matters coming before the Council may be referred to the appropriate committee for consideration and recommendation(s) prior to consideration by the full Council. (M-09-269, Adopted, 6/18/09) Rule 39C. When determined by the chairs of the respective committees, or by recommendation of the Council, to be in the interest of efficiency, two or more committees may convene in a joint committee meeting. A joint committee meeting shall be noticed as such. A quorum shall be established for the joint committee if either/any committee has a quorum present, at least one member is present from the other committee(s), and the total membership present constitutes a majority of the membership of the combined membership of the two or more committees comprising the joint committee. For purposes of determining the total number of members of the combined membership, if one councilmember serves on more than one participating committee that councilmember shall only be counted once. In the event of such a joint committee meeting, each member of each committee, or each alternate 25 Appendix L IN RE: New Orleans City Council ____________________________________ Meeting (Excerpts) March 8, 2018 __________________________________________ 504-833-3330 www.currenland.com Meeting (Excerpts) 3/8/2018 Page 1 NEW ORLEANS CITY COUNCIL MEETING (EXCERPTS) Held on Thursday, the 8th of March 2018, located in the Council Chambers, commencing at 10:10 A.M. REPORTED BY: KATHY SHAW-GALLAGHER, CCR, RPR Certified Court Reporter (No. 049519) Curren-Landrieu, L.L.C. 749 Aurora Avenue Suite 4 Metairie, Louisiana 70005 (504) 833-3330 (800) 487-3376 (504) 833-3330 Curren Court Reporters, LLC FAX (504) 833-3355 www.currenland.com Meeting (Excerpts) 3/8/2018 Page 2 P R O C E E D I N G S 1 2 MADAM CLERK: Are you ready? 3 4 CHAIRMAN WILLIAMS: Yes, ma'am. 5 6 MADAM CLERK: 7 We're now going to go to page 32. 8 We have Resolution R-18-65 by Councilmembers 9 Williams, Head, Guidry, Brossett, and Gray 10 application of Entergy New Orleans, Inc., for 11 approval to construct New Orleans Power Station 12 and request for cost recovery and timely 13 relief, the resolution and order regarding the 14 application of Entergy New Orleans, Inc., for 15 approval to construct New Orleans Power Station 16 and request for cost recovery and time relief, 17 Docket UD-16-02. 18 CHAIRMAN WILLIAMS: 19 Madam Clerk, thank you. 20 Before we move to public comment, I 21 want to say just a few words based upon the 22 status of things where we are now. 23 First, I know there was some concern 24 about the committee meeting where this item was 25 preliminarily discussed. (504) 833-3330 I want to note for Curren Court Reporters, LLC FAX (504) 833-3355 www.currenland.com Meeting (Excerpts) 3/8/2018 Page 3 1 the record that that committee vote was not a 2 legally binding vote. 3 recommendation. 4 vote of the full Council, today, carries the 5 legal weight and is outcome determinative. 6 Although the committee meeting was conducted in 7 compliance with the law, it is today's vote and 8 today's public hearing where the rubber meets 9 the road and a real decision is made. In this circumstance, only the (Crowd boos.) 10 11 It was, in fact, a mere UNKNOWN AUDIENCE MEMBER: The vote took place before the 12 13 Department of Environmental Quality (inaudible 14 exchange.) 15 CHAIRMAN WILLIAMS: Let me start over because clearly, 16 17 clearly nobody was listening. (Crowd shouts.) 18 19 CHAIRMAN WILLIAMS: Mr. Johnson, I'm going to read this 20 21 for you again. The vote at the Utility Committee 22 23 meeting was to move this docket to the full 24 Council for the actual legal vote which will 25 have determining effect so that all members of (504) 833-3330 Curren Court Reporters, LLC FAX (504) 833-3355 www.currenland.com Meeting (Excerpts) 3/8/2018 Page 4 1 the City Council can vote. The City Council is 2 the regulatory authority, not the committee. Today we will hear from all parties. 3 4 I know there are several people feel as though 5 they were not heard from at the committee 6 hearing and that is what today is for. 7 I have directed my staff, as well as 8 members of the clerk's office who are assisting 9 us, who will be collecting public comment cards 10 from folks in the hallway. We will have a 11 robust discussion. 12 public. 13 hear from Entergy. 14 a full public hearing and receive public 15 comment on this very important issue. We will hear from the We will hear from experts. We will And we are here to conduct All comments today will be made part 16 17 of the formal record. And if time permits 18 today, we would like to hear from every single 19 person that wants to weigh in today. With that, we will have Emma Hand 20 21 from the Dentons group to present the 22 resolution that is before us today which sets 23 the stage of today's public hearing. Ms. Hand. 24 25 MS. HAND: (504) 833-3330 Curren Court Reporters, LLC FAX (504) 833-3355 www.currenland.com Appendix M THE COUNCIL City of New Orleans STACY HEAD Councilmember At Large SUSAN G. GUIDRY Councilmember District "A" LATOYA CANTRELL Councilmember District "B" JASON ROGERS WILLIAMS Councilmember At Large NADINE M. RAMSEY Councilmember District "C" JARED C. BROSSETT Councilmember District "D" JAMES AUSTIN GRAY II Councilmember District "E" AGENDA Regular City Council to be held in City Hall Council Chamber on Thursday, March 8, 2018 at 10:00 AM PRESIDENT JASON ROGERS WILLIAMS Councilmember-At-Large VICE PRESIDENT STACY HEAD Councilmember-At-Large 1. ROLL CALL – LORA W. JOHNSON, CLERK OF COUNCIL 2. INVOCATION – BAPTIST CHURCH REV. DR. EMANUEL SMITH, JR., PASTOR ISRAELITE 3. PRESENTATION OF COLORS 4. PLEDGE OF ALLEGIANCE TO THE COUNCILMEMBER DISTRICT “D†FLAG – JARED C. BROSSETT 5. NATIONAL ANTHEM 6. COUNCIL CHAPLAIN – REV. DR. EMANUEL SMITH, JR., PASTOR BAPTIST CHURCH 1. ISRAELITE APPROVAL OF THE MINUTES – February 8, 2018 and February 22, 2018. Annotation: TO BE APPROVED. SPECIAL ORDERS OF BUSINESS 1. FIRST ORDER OF BUSINESS – NATIONAL WOMEN’S MONTH – NAKOSHA SMITH AND SHANIKA BEATTY Brief: Celebrating the 10th Anniversary of the Caramel Curve. Annotation: (Cm. Head). TO APPEAR. OOB 2. SECOND ORDER OF BUSINESS JACKSON AND JULIA JOHNSON – MAGNOLIA YOGA STUDIO – ADRIANNE Brief: Providing a presentation on their mission to support people’s growth, healing, and empowerment through the art & science of hot yoga and community, as well as forecast some exciting upcoming initiatives with the City and broader New Orleans community. Annotation: (Cm. Williams). TO APPEAR. OOB 3. THIRD ORDER OF BUSINESS CONSENT AGENDA 1. COMMUNICATION – FROM LUKE F. PIONTEK, ROEDEL, PARSONS, KOCH, BLACHE, BLAHOFF & MCCOLLISTER, A LAW CORPORATION Brief: Submitting as counsel of record for New Orleans Cold Storage & Warehouse Co. Ltd. (“NOCS†), an intervenor in RE: Application of Entergy New Orleans, Inc. for Construct New Orleans Power Station and Request for Cost Recovery and Timely Relief. Unfortunately, undersigned counsel for NOCS will be in deposition all day, every day February 20, 2018 through February 23, 2018 and will, therefore, be unable to attend the Utility, Cable, Telecommunications and Technology Committee (UCTT) meeting. In lieu of a closing argument please accept NOCS’ Post-Hearing Brief filed with the Clerk of Council effective January 19, 2018. (CNO Docket No.: UD-16-02) Annotation: MAY BE RECEIVED. Luke F. Piontek 2. COMMUNICATION - FROM GARY E. HUNTLEY, VICE PRESIDENT, AND GOVERNMENTAL AFFAIRS, ENTERGY NEW ORLEANS, LLC REGULATORY Brief: Submitting in accordance with Paragraph B of Schedule FAC-4-6 (Fuel Adjustment Clause) implemented pursuant to Council Resolution R-09136, Entergy New Orleans, LLC ("ENO") this notification to the Council that the Company's preliminary calculation of the ENO March 2018 Fuel Adjustment Clause ("FAC") factors indicate that each of these factors will be over 25% greater than the respective FAC factors from the previous month. More specifically, the preliminary calculation of the ENO Legacy March 2018 non-transmission FAC is $0.067393/kWh and the preliminary calculation of the ENO Algiers March 2018 non-transmission FAC is $0.057516/kWh. The actual billed February 2018 non-transmission FAC factors for ENO Legacy and ENO Algiers customers were $0.035323/kWh and $0.01936 3/kWh, respectively. The estimated March 2018 FAC factor for ENO Legacy transmission customers is $0.065610/kWh compared to actual billed February 2018 factor of $0.034609/kWh. Annotation: MAY BE RECEIVED. Gary E. Huntley 3. COMMUNICATION - FROM HARRY M. BARTON - SENIOR DEPARTMENT - REGULATORY, ENTERGY SERVICES, INC. COUNSEL, LEGAL Brief: Submitting an original and two copies of Entergy New Orleans, LLC ("ENO") Objections to Air Products and Chemicals, Inc.'s First Set of Requests for Information to ENO. (CNO Docket No. UD-17-05). Annotation: MAY BE RECEIVED. Harry M. Barton 4. COMMUNICATION - FROM CYNTHIA M. CONNICK, CHIEF EXECUTIVE OFFICER, CITY OF NEW ORLEANS, NEW ORLEANS BUILDING CORPORATION Brief: Submitting as per Ordinance No. 28,133, the 2017 attendance record for the Canal Street Development Corporation and New Orleans Building Corporation board members. Please note the effective date of February 27, 2017 Canal Street Development Corporation merge into New Orleans Building Corporation. Annotation: MAY BE RECEIVED. Cynthia M. Connick 5. COMMUNICATION FROM EDWARD HORAN, ZONING ADMINISTRATOR, DEPARTMENT OF SAFETY AND PERMITS, NEIGHBORHOOD CONSERVATION DISTRICT ADVISORY COMMITTEE (NCDAC) CHAIR Brief: Requesting Council action regarding the Neighborhood Conservation District Advisory Committee's decision of "approval" on an application for demolition permits for the following: Addresses District 3375 Roger Williams St. D 3606 N. Miro St. D Annotation: MAY BE RECEIVED. Edward Horan 2-19-18 Approval 6. COMMUNICATION – FROM GARY E. HUNTLEY, VICE PRESIDENT, REGULATORY AFFAIRS, ENTERGY NEW ORLEANS, LLC Brief: Submitting an original and two copies of Inc.’s 2018 Annual Gas Marketing Report. Entergy New Orleans, Annotation: MAY BE RECEIVED. Gary E. Huntley Gas Market 7. COMMUNICATION – FROM GARY E. HUNTLEY, VICE PRESIDENT, REGULATORY AFFAIRS, ENTERGY NEW ORLEANS, LLC Brief: Submitting an original and two copies of the report “Forecasting Peak Load for Entergy New Orleans LLC†and all related workpapers, models, and output (the “Report†), prepared by Dr. Russell P. Robins, on behalf of Entergy New Orleans LLC (“ENO†or the “Company†), filed pursuant to Council Resolution R-00650. Annotation: MAY BE RECEIVED. Gary E. Huntley R-00-650 8. COMMUNICATION – FROM WALTER J. WILKERSON, ASSOCIATES, PLC, ATTORNEYS & COUNSELLORS AT LAW Brief: Submitting the Consideration in WILKERSON Advisors’ Recommendations for connection with Entergy New Orleans, & Council Inc.’s September 29, 2017, Application for Approval of the Supplemental and Amended Implementation Plan for Program Years 7 through 9 of the Energy Smart Plan, pursuant to Resolution R-17-623. (Docket No. UD-08-02) Annotation: MAY BE RECEIVED. Walter Wilkerson 9. REPORT - OF THE EXECUTIVE DIRECTOR OF THE CITY PLANNING COMMISSION Brief: Transmitting Zoning Docket Numbers 14/18 - Cm. Guidry 15/18 - Cm. Cantrell, 20/18 - Cm. Ramsey, 26/18 - Cm. Gray, 27/18 - Cm. Cantrell, 28/18 - Cm. Gray, 33/18 - Cm. Brossett, Cn. Deadline 5/7/18. Annotation: MAY BE RECEIVED. (Suggested Hearing Date Set For 3/22/18). CPC Transmittal Letter 2-27-18 10. CAL. NO. 32,165 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,610 M.C.S., as amended, entitled "An Ordinance Providing an Operating Budget of Revenues for the City of New Orleans for the Year 2018" to appropriate local foundation grant funds received from the Downtown Development District from Intergovernmental transfers to the Department of Public Works to fund a CEA for the provision of a traffic analysis study for the CBD parking reallocation plan. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended approval). 32165 11. CAL. NO. 32,166 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,611 M.C.S., as amended, entitled "An Ordinance Providing an Operating Budget of Expenditures for the City of New Orleans for the Year 2018" to appropriate local foundation grant funds received from the Downtown Development District from Intergovernmental transfers to the Department of Public Works to fund a CEA for the provision of a traffic analysis study for the CBD parking reallocation plan. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended approval). 32166 12. CAL. NO. 32,167 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,610 M.C.S., as amended entitled "An Ordinance Providing an Operating Budget of Revenues for the City of New Orleans for the Year 2018" to appropriate State Grant funds from Intergovernmental transfers to the Department of Health for School Travel Safety Project. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended approval). 32167 13. CAL. NO. 32,168 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,611 M.C.S., as amended entitled "An Ordinance Providing an Operating Budget of Expenditures for the City of New Orleans for the Year 2018" to appropriate State Grant funds from Intergovernmental transfers to the Department of Health and transfer within the for School Travel Safety Project. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended approval). 32168 14. CAL. NO. 32,170 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,610 M.C.S., as amended entitled "An Ordinance Providing an Operating Budget of Revenues for the City of New Orleans for the Year 2018" to appropriate State Grant funds from Intergovernmental transfers to the Department of Health for Congestion Mitigation and Air Quality Program. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended approval). 32170 15. CAL. NO. 32,171 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,611 M.C.S., as amended entitled "An Ordinance Providing an Operating Budget of Expenditures for the City of New Orleans for the Year 2018" to appropriate State Grant funds from Intergovernmental transfers to the Department of Health for the Congestion Mitigation and Air Quality Program. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended approval). 32171 16. CAL. NO. 32,173 - BY: COUNCILMEMBER GUIDRY Brief: An Ordinance to amend and reordain Article 24, Section 24.12.D – Freestanding Signs and Table 24-2: Freestanding Signs of Ordinance No. 4264 M.C.S., amended by Ordinance No. 26,413 M.C.S., as amended, the Comprehensive Zoning Ordinance of the City of New Orleans, to consider freestanding signs in Historic Urban NonResidential Districts under limited circumstances when buildings are set back five (5) or more feet from the public right-of-way, Citywide; and otherwise to provide with respect thereto. (ZONING DOCKET NO. 112/17) Annotation: (90 Day Cn. Deadline 4/25/18). (Cn. Deadline 4/19/18). 32173 17. CAL. NO. 32,176 - BY: COUNCILMEMBER RAMSEY Brief: An Ordinance to effect a zoning change from an HMR-2 Historic Marigny/Tremé/Bywater Residential District to an HMC-1 Historic Marigny/Tremé/Bywater Commercial District, on Square 622, Lot 15 or Lots 10 and 11, in the Third Municipal District, bounded by Annette, N. Robertson, St. Anthony, and N. Villere Streets (Municipal Address: 1443 Annette Street); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 111/17) Annotation: (90 Day Cn. Deadline 4/25/18). (Cn. Deadline 4/19/18). 32176 18. CAL. NO. 32,177 - BY: COUNCILMEMBER RAMSEY Brief: An Ordinance to provide for the establishment of a Conditional Use to permit a bar in an HMC-2 Historic Marigny/Tremé/Bywater Commercial District, an AC-3 Arts and Cultural Diversity Overlay District, and an EC Enhancement Corridor Design Overlay District, on Square 363, Lot C, in the Third Municipal District, bounded by St. Claude Avenue and Clouet, N. Rampart and Montegut Streets (Municipal Addresses: 3042-3044 St. Claude Avenue); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 118/17) Annotation: (90 Day Cn. Deadline 4/25/18). (Cn. Deadline 4/19/18). 32177 19. CAL. NO. 32,182 - BY: COUNCILMEMBER CANTRELL Brief: An Ordinance to provide for a conditional use to permit a reception facility greater than five thousand (5,000) square feet in floor area in an HU-B1 Historic Urban Neighborhood Business District, a CPC Character Preservation Corridor Design Overlay District, and the Magazine Street Use Restriction Overlay District and the rescission of Ordinance No. 15,759 MCS (Zoning Docket 06/93), on Square 150, Lot SVE, in the First Municipal District, bounded by Magazine Street, Race Street, Camp Street, and Orange Street (Municipal Address: 1111 Orange Street); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 90/17) Annotation: (90 Day Cn. Deadline 4/25/18). (Cn. Deadline 4/19/18). 32182 20. CAL. NO. 32,183 - BY: COUNCILMEMBER HEAD Brief: An Ordinance to amend and reordain Section 2-6 of the Code of the City of New Orleans relative to the requirements of the official journal of New Orleans, the annual contract for the publication of the official journal, the auxiliary official journal, additional official publications, and the responsibilities of the Clerk of Council’s office with respect to the official journal; and otherwise to provide with respect thereto. Annotation: (Referred to the Governmental Affairs Committee). Affairs Committee recommended approval). (Governmental 32183 21. MOTION – NO. M-18-64 – BY: COUNCILMEMBER CANTRELL Brief: Granting the “approval†of the Neighborhood Conservation District Advisory Committee’s request for a demolition permit for the property at the following location: * 745 S. Galvez St. M-18-64 22. MOTION – NO. M-18-66 – BY: GUIDRY, CANTRELL AND BROSSETT COUNCILMEMBERS HEAD, WILLIAMS, Brief: Approving the amendments to the Classified Pay Plan (S&WB), Hiring Rates for Meter Services Division as adopted by the Civil Service Commission at its meeting on January 29, 2018, in accordance with Article X, Section 10 of the Constitution of Louisiana, to be effective March 12, 2018. Annotation: (Budget Committee recommended approval). M-18-66 23. MOTION – NO. M-18-68 – BY: COUNCILMEMBER HEAD (BY REQUEST) Brief: Ratifying, confirming and approving the Mayor’s appointment of Lona Edwards Hankins fulfilling the unexpired term of Craig Mitchell, as a member of the City Planning Commission, effective upon approval by the Council of the City of New Orleans, for a term that will expire on June 30, 2019. Annotation: (Questionnaire received. Governmental Affairs Committee recommended approval). M-18-68 A. MOTION TO ADOPT CONSENT AGENDA AND REFER OTHER MATTERS TO THE PROPER AGENCY. B. AND THE CONSENT AGENDA WAS ADOPTED. REGULAR AGENDA 1. NCDAC - OF EDWARD HORAN, ZONING ADMINISTRATOR, DEPARTMENT OF SAFETY AND PERMITS, NEIGHBORHOOD CONSERVATION DISTRICT ADVISORY COMMITTEE (NCDAC) CHAIR Brief: Requesting Council action regarding the Neighborhood Conservation District Advisory Committee's decision of "denial" on an application for a demolition permit for the following: 3028-30 Baronne St. Annotation: (Cm. Cantrell, Cn. Deadline 3/12/18). ON DEADLINE. NCDAC 3028-30 Baronne St. 2. NCDAC - OF EDWARD HORAN, ZONING ADMINISTRATOR, DEPARTMENT OF SAFETY AND PERMITS, NEIGHBORHOOD CONSERVATION DISTRICT ADVISORY COMMITTEE (NCDAC) CHAIR Brief: Requesting Council action regarding the Neighborhood Conservation District Advisory Committee's decision of "denial" on an application for a demolition permit for the following: 1600 Robert C. Blakes, Sr. Dr. The property owner is requesting a fee reduction/waiver of the post demolition fee of $13,140.00. Recommended: NO FEE BE WAIVED. Annotation: (Cm. Cantrell, Cn. Deadline 3/26/18). NCDAC 1600 Robert C. Blakes, Sr. Dr. 3. NCDAC - OF EDWARD HORAN, ZONING ADMINISTRATOR, DEPARTMENT OF SAFETY AND PERMITS, NEIGHBORHOOD CONSERVATION DISTRICT ADVISORY COMMITTEE (NCDAC) CHAIR Brief: Requesting Council action regarding the Neighborhood Conservation District Advisory Committee's decision of "approval" on an application for a demolition permit for the following: 1387 St. Anthony St., Apt A-D C The property owner is requesting a fee reduction/waiver of the post demolition fee of $4,335.00 which is 15% of the building value of $28,900. Motion made to reduce fee to $1,500.00 Annotation: (Cm. Ramsey, Cn. Deadline 4/9/18). NCDAC 1387 St. Anthony St. 4. HDLC APPEAL – OF BEN HARWOOD Brief: Requesting to appeal the Historic District Landmarks Commission’s (HDLC) decision of “denial†of an application to retain installed windows for property located at 917 N. Villere Street. Annotation: (Cm. Ramsey, Cn. Deadline 3/25/18). (Report received at the meeting of 2/22/18). Ben Harwood 5. 917 N Villere St HDLC APPEAL - OF LINDA WHITE Brief: Requesting to appeal the Historic District Landmarks Commission (HDLC) decision of “denial†for the installation of metal storm doors for property located at 519 Homer Street. Annotation: (Cm. Ramsey, Cn. Deadline 4/8/18). (Report received at the meeting of 2/22/18). Linda White 519 Homer St. 6. ZONING DOCKET NO. 107/17 – RIVER STREET VENTURES, LLC Brief: Requesting a conditional use to permit height and density bonuses for a multi-family residential dwelling in an MU-2 High Intensity Mixed-Use District and an RIV Riverfront Design Overlay District and the rescission of Ordinance Nos. 9367 MCS and 10144 MCS (Zoning Docket 38/83), on Square 216, Lots 1-A and 20-A or Lots 1-8, 13-18, 20, B, and Pts. Lot 13, 14, and 19, and on Square 217, Lot A-1 or A, in the Fifth Municipal District, bounded by Brooklyn Avenue, Socrates and DeArmas Streets, and the Mississippi River Protection Levee and River Street (Municipal Addresses: 200-240 Lamarque Street, 1239 Brooklyn Avenue, and 1316 River Street). The recommendation of the City Planning Commission being “NO LEGAL MAJORITY†. YEAS: Green, Hughes, Isaacson, Stewart – 4 NAYS: Brown, Steeg – 2 ABSENT: Wedberg – 1 Annotation: (Cm. Ramsey, Cn. Deadline 4/23/18). 7. ZD NO. 107-17 (1 of 6) ZD NO. 107-17 (2 of 6) ZD NO. 107-17 (3 of 6) ZD NO. 107-17 (4 of 6) ZD NO. 107-17 (5 of 6) ZD NO. 107-17 (6 of 6) ZONING DOCKET NO. 110/17 – MONALA, LLC Brief: Requesting a conditional use to permit a bar in an HMC-2 Historic Marigny/Tremé/Bywater Commercial District and an AC-1 Arts and Culture Diversity Overlay District, on Square 6, Lot 1-A or 1 or Pt 1, in the Third Municipal District, bounded by Frenchmen, Chartres, and Decatur Streets and Elysian Fields Avenue (Municipal Addresses: 513-517 Frenchmen Street). The recommendation of the City Planning Commission being “FOR APPROVAL†, subject to six (6) provisos. Annotation: (Cm. Ramsey, Cn. Deadline 3/12/18). ON DEADLINE. ZD NO. 8. 110-17 ZONING DOCKET NO. 116/17 – MICHAEL SHERMAN Brief: Requesting a text amendment to the Comprehensive Zoning Ordinance to amend Article 16, Section 16.2, Table 16-1: Permitted and Conditional Uses to allow multi-family dwellings as a permitted use in the MI Maritime Industrial District with a footnote limiting residential uses to only be permitted adjacent to Open Space Districts, Citywide. The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cms. All, Cn. Deadline 3/12/18). ON DEADLINE. ZD NO. 9. 116-17 ZONING DOCKET NO. 117/17 – 934 CANAL, LLC Brief: Requesting a conditional use to permit the retail sales of packaged alcoholic beverages in a CBD-2 Historic Commercial and Mixed-Use District, on Square 266, Lot 2, in the First Municipal District, bounded by Canal, Baronne, and Common Streets and University Place (Municipal Addresses: 934-936 Canal Street). The recommendation of the City Planning Commission being “NO LEGAL MAJORITY†. YEAS: Brown, Isaacson, Steeg, Stewart – 4 NAYS: Duplessis, Green, Hughes – 3 ABSENT: Mitchell, Wedberg – 2 Annotation: (Cm. Cantrell, Cn. Deadline 3/12/18). ON DEADLINE. ZD NO. 117-17 10. ZONING DOCKET NO. 2/18 – CITY COUNCIL MOTION NO. M-17-551 Brief: Requesting for a text amendment to the Comprehensive Zoning Ordinance to amend Article 16 to permit uses currently allowed in the LI Light Industrial District in the BIP Business Industrial Park District in Planning Districts 9 and 10. The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cm. Gray, Cn. Deadline 3/26/18). ZD NO. 2-18 11. ZONING DOCKET NO. 3/18 – CITY COUNCIL MOTION NO. M-17-552 Brief: Requesting a text amendment to the Comprehensive Zoning Ordinance to incorporate recommendation three (3) provided on page 100 in Part K of the City Planning Commission’s Adult Live Performance Venues Study, in accordance with the CPC staff’s recommendation on page 96 in Part F of the study, to reduce the number of Adult Live Performance Venues through attrition, via the imposition of a cap limiting the number of Adult Live Performance Venues in the Vieux Carré Entertainment District (VCE) to one (1) Adult Live Performance Venue (ALPV) per either blockface between intersecting streets and a cap on the total number of ALPV’s in the VCE District equal to the current number of existing ALPV’s in the VCE District, in the VCE Vieux Carré Entertainment District. The recommendation of the City Planning Commission being “FOR MODIFIED APPROVAL†. Annotation: (Cm. Ramsey, Cn. Deadline 4/23/18). ZD NO. 3-18 12. ZONING DOCKET NO. 4/18 – CITY COUNCIL MOTION NO. M-17-557 Brief: Requesting for a text amendment to the Comprehensive Zoning Ordinance to amend the use permissions in Article 12, Section 12.2.A., Table 12-1, to change a Commercial Short Term Rental from a permitted to a conditional use in the HU-B1 Neighborhood Business District and HU-MU Neighborhood Mixed-Use District, Citywide. The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (All Cms., Cn. Deadline 3/26/18). ZD NO. 4-18 13. ZONING DOCKET NO. 5/18 – CITY COUNCIL MOTION NO. M-17-558 Brief: Requesting for a zoning change from an HU-B1A Historic Urban Neighborhood Business District to an HU-MU Historic Urban Neighborhood Mixed-Use District and a conditional use for the retail sales of packaged alcoholic beverages, on Square 204 Lot S or 1, in the Fourth Municipal District, bounded by Prytania Josephine, Coliseum, and Saint Andrew Street (Municipal Addresses: 2024 Prytania Street and 1457 Josephine Street). The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cm. Cantrell, Cn. Deadline 4/9/18). ZD NO. 5-18 14. ZONING DOCKET NO. 6/18 – CITY COUNCIL MOTION NO. M-17-559 Brief: Requesting for a text amendment to the Comprehensive Zoning Ordinance to establish a new Interim Zoning District (IZD) to be named the Residential District Preservation Interim Zoning District, the intent of which is to establish hostels as conditional uses in areas zoned C-1 General Commercial District where the use would be adjacent to a residential district, Citywide. The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (All Cms., Cn. Deadline 3/26/18). ZD NO. 6-18 15. ZONING DOCKET NO. 8/18 – LANDCRAFT, LLC Brief: Requesting for a conditional use to permit a standard restaurant that sells alcoholic beverages in an S-LB1 Suburban Lake Area Neighborhood Business District and a CT Corridor Transformation Design Overlay District, on Square 15, Lot 9-A, in the Seventh Municipal District, bounded by Pontchartrain Boulevard, West Harrison Avenue, Avenue C, and 26th Street (Municipal Addresses: 117 West Harrison Avenue and 6300-6304 Pontchartrain Boulevard). The recommendation of the City Planning Commission being “FOR APPROVAL†, subject to two (2) provisos. Annotation: (Cm. Guidry, Cn. Deadline 3/26/18). ZD NO. 8-18 16. ZONING DOCKET NO. 11/18 – CHRISTIAN GALVIN Brief: Requesting for a zoning change from an HU-RM1 Historic Urban MultiFamily Residential District to an HU-B1 Historic Urban Neighborhood Business District, on Square 243, Lot A, in the Fourth Municipal District, bounded by Jackson Avenue, Carondelet Street, Brainard Street, and Philip Street (Municipal Addresses: 1700-1706 Jackson Avenue). The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cm. Cantrell, Cn. Deadline 4/9/18). ZD NO. 11-18 17. ZONING DOCKET NO. 12/18 – ONE MAXWELL GROUP, LLC Brief: Requesting for a zoning change from an HU-RD-2 Historic Urban TwoFamily Residential District to an HU-MU Historic Urban Neighborhood Mixed-Use District, on Square 307, Lot 9 and rear part Lot 25 or part of Lot 9 or Lot 32, in the Second Municipal District, bounded by North Tonti Street, Oak Place, North Rocheblave Street, and Conti Street (Municipal Addresses: 413-415 North Tonti Street). The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cm. Cantrell, Cn. Deadline 4/9/18). ZD NO. 12-18 18. ZONING DOCKET NO. 16/18 – CHRISTIAN GALVIN Brief: Requesting for a zoning change from an HU-RD2 Historic Urban TwoFamily Residential District to an HU-B1 Historic Urban Neighborhood Business District, on Square 108, Lots 16 and 17, in the Fourth Municipal District, bounded by Jackson Avenue, Constance Street, Laurel Street, and Josephine Street (Municipal Addresses: 919-921 Jackson Avenue). The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cm. Cantrell, Cn. Deadline 4/9/18). ZD NO. 16-18 19. ZONING DOCKET NO. 18/18 – 2728 BIENVILLE, LLC Brief: Requesting a zoning change from an HU-RD2 Historic Urban Two-Family Residential District to an HU-B1 Historic Urban Neighborhood Business District, on Square 363, Lot A, in the Second Municipal District, bounded by Bienville Avenue, North Broad Street, North White Street, and Iberville Street (Municipal Addresses: 2728-2730 Bienville Avenue). The recommendation of the City Planning Commission being “FOR DENIAL†. Annotation: (Cm. Cantrell, Cn. Deadline 4/23/18). ZD NO. 18-18 20. ZONING DOCKET NO. 19/18 – MACDONALD DAVID MACDONALD AND IRELIS NAZARIO- Brief: Requesting a zoning change from an HMR-1 Historic Marigny/Tremé/Bywater Residential District to an HMC-1 Historic Marigny/Tremé/Bywater Commercial District, on Square 269, Lot E, in the Third Municipal District, bounded by Burgundy, Pauger, Touro, and North Rampart Streets (Municipal Address: 1919 Burgundy Street). The recommendation of the City Planning Commission being “NO LEGAL MAJORITY†. YEAS: Brown, Hughes, Steeg, Stewart – 4 NAYS: Green, Isaacson – 2 ABSENT: Wedberg – 1 Annotation: (Cm. Ramsey, Cn. Deadline 4/23/18). ZD NO. 19-18 21. ZONING DOCKET NO. 23/18 – CITY COUNCIL MOTION NO. M-17-618 Brief: Requesting a text amendment to Article 15, Section 15.2.A (Table 15-1: Permitted and Conditional Uses) to make “Mardi Gras den†a permitted use in the C-2 Auto-Oriented Commercial District; to Article 15, Section 15.2.A (Table 15-1: Permitted and Conditional Uses) to change “Mardi Gras den†from a conditional use to a permitted use in the MU-2 High Intensity Mixed-Use District; and to Article 16, Section 16.2 (Table 16-1: Permitted and Conditional Uses) to make “Mardi Gras den†a permitted use in the BIP Business-Industrial Park District, City-wide. The recommendation of the City Planning Commission being “FOR APPROVAL†. Annotation: (Cms. All, Cn. Deadline 4/23/18). ZD NO. 23-18 22. ZONING DOCKET NO. 24/18 – CITY COUNCIL MOTION NO. M-17-619 Brief: Reque ting to re cind Ordinance No 946 MCS (Zoning Docket 88/07, which established under the former Comprehensive Zoning Ordinance a conditional use to permit the sale of alcoholic beverages with meals in a standard restaurant in a B-2 Neighborhood Business District), on Square A, Lots 24, 25, 26, 27, 28, 29, and 30, in the Sixth Municipal District, bounded by South Claiborne Avenue, Louisiana Avenue Parkway, Toledano Street, and South Roman Street (Municipal Address: 3301 South Claiborne Avenue). The recommendation of the City Planning Commission being “FOR APPROVAL†. Annotation: (Cm. Cantrell, Cn. Deadline 4/23/18). ZD NO. 24-18 23. CAL. NO. 30,230 - BY: COUNCILMEMBER CANTRELL Brief: An Ordinance to amend Ordinance No. 25,092 M.C.S. (Zoning Docket 90/12, which granted a Conditional Use to permit the sale of alcoholic beverages for consumption on-premises at a standard restaurant in a B-1A Neighborhood Business District) to consider modifications to the approved development plan, on Square 216, Lots Y and C (now Lot C-1), in the Sixth Municipal District, bounded by Louisiana Avenue, Magazine, Toledano and Constance Streets (Municipal Address: 3336 Magazine Street); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 33/14) 30230 24. CAL. NO. 30,650 - BY: COUNCILMEMBER RAMSEY Brief: An Ordinance, to amend and reordain Sections 66-136, 66-137, 66138, 66-139, 66-140, 66-141, 66-201, 66-202, and 66-204 of the Code of the City of New Orleans, relative to applicable definitions, appropriate sound levels, measurements and procedures for the Vieux Carre Entertainment (VCE) zoning classification, and to clarify regulations and appropriate enforcement procedures for all sound violations; and to otherwise provide with respect thereto. Annotation: (Referred to Committee). the Public Works, Sanitation and Environment 30650 25. CAL. NO. 30,740 - BY: COUNCILMEMBER HEAD Brief: An Ordinance to amend and reordain Section 2-6 of the Code of the City of New Orleans relative to the requirements of the official journal of New Orleans, the annual contract for the publication of the official journal, the auxiliary official journal, additional official publications, and the responsibilities of the Clerk of Council’s office with respect to the official journal; and otherwise to provide with respect thereto. 30740 26. CAL. NO. 31,061 - BY: COUNCILMEMBER CANTRELL Brief: An Ordinance to ordain a CBPCD Central Business Planned Community District and a Conditional Use to permit a multiple-family residential development with a cocktail lounge in a CBD-9 Central Business District, on Square 69, Lot A-1-A, in the First Municipal District, bounded by Tchoupitoulas, Annunciation, Poeyfarre and John Churchill Chase Streets (Municipal Address: 1035 Tchoupitoulas Street); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 68/15) Annotation: (Cms. Guidry and Head voting “NAY†). 31061 27. CAL. NO. 31,330 - BY: COUNCILMEMBER HEAD (BY REQUEST) Brief: An Ordinance to amend and reordain Section 30-70 of the Code of the City of New Orleans, relative to the mayoralty permit fee schedule for bed and breakfasts, to amend the classifications of bed and breakfasts to match the categories provided in the Comprehensive Zoning Ordinance; and to otherwise provide with respect thereto. Annotation: (Fiscal Note Received). (Budget Committee recommended approval). (Referred to the Budget Committee). (Budget Committee recommended deferral to 3/29/18 Budget Committee meeting). 31330 28. CAL. NO. 31,576 - BY: COUNCILMEMBER GRAY Brief: An Ordinance to amend and reordain Section 162-1707 of the Code of the City of New Orleans, relative to the requirements of TNC permit holders, to require that permit holders provide proof of compliance with certain Americans with Disabilities Act (ADA) requirements to the Department of Safety and Permits, to provide for penalties relative thereto; and to otherwise provide with respect thereto. 31576 29. CAL. NO. 31,686 - BY: REQUEST) COUNCILMEMBERS CANTRELL AND WILLIAMS (BY Brief: An Ordinance to ordain Article XI of Chapter 26 of the Code of the City of New Orleans, to establish a rental registry program, requiring the registration of rental housing property, and inspections, enforcement, fees, penalties and appeals relative thereto; and to provide otherwise with respect thereto. Annotation: (Community Development Committee referred this matter to the full Council for discussion). 31686 30. CAL. NO. 31,807 - BY: COUNCILMEMBER GUIDRY Brief: An Ordinance to amend and re-ordain the title of Article XIII of Chapter 2, of the Code of the City of New Orleans, to provide that said article governs Ethics Administration, to amend and reordain Sections 2-1120 and 2-1121 therein, relative to the Office of Inspector General and the Office of Independent Police Monitor, to enact revisions relative thereto mandated by the Home Rule Charter providing that local ethics entities are financially and operationally independent, to ordain Section 2-1122, relative to the Ethics Review Board, by providing therein the substance of Section 2-719, which governs the Ethics Review Board, and reserving Section 2-719 accordingly, and to ordain Sections 2-1123 and 21124, to provide all three ethics entities the proper apportionment of funding and to provide for annual independent external evaluation procedures for each entity, respectively, and otherwise to provide with respect thereto. 31807 31. CAL. NO. 31,845 - BY: COUNCILMEMBER RAMSEY Brief: An Ordinance to amend and reordain Section 54-525 of the Code of the City of New Orleans, relative to the definition of domestic violence; and otherwise to provide with respect thereto. 31845 32. CAL. NO. 31,901 - BY: COUNCILMEMBER CANTRELL Brief: An Ordinance to ordain Article XII of Chapter 146 of the Code of the City of New Orleans, relative to street naming, to be titled “Street Names,†to provide approval criteria, application fees, and requirements relative thereto; and to otherwise provide with respect thereto. 31901 33. CAL. NO. 32,107 - BY: COUNCILMEMBER HEAD (BY REQUEST) Brief: An Ordinance to amend and reordain Sections 10-1, 10-4, 10-46, 1049, 10-52, 10-53, 10-76, 10-78, 10-79, 10-80, 10-101, 10-106, 10110, 10-113, 10-121, 10-123, 10-124, 10-125, 10-128, 10-131, 10132, 10-134, 10-136, 10-137, 10-157, 10-160, 10-236, 10-237, 10238, 10-261, 10-262, 10-263, 10-401, 10-403, 10-428, 10-429, 10430, and 10-566 of the Code of the City of New Orleans, to create, clarify, and augment regulations pursuant to the City’s police powers regarding the application and issuance of alcoholic beverage permits, enforcement and applicable penalties for alcoholic beverage outlets, ensuring consistency with the Comprehensive Zoning Ordinance and to provide for permit issuance via the Department of Safety and Permits in lieu of Department of Finance; to repeal Sections 10-5, 10-6, 10-11, 10-12, 10-50, 10-107 through 10-109, 10-111, 10-112, 10-130, 10-133, 10-187, 10-286, 10-311 through 10-318, 10-341,10-540 and reserve them accordingly; and to provide otherwise with respect thereto. 32107 34. CAL. NO. BROSSETT 32,138 - BY: COUNCILMEMBERS RAMSEY, CANTRELL AND Brief: An Ordinance to amend and reordain Sections 162-190, 162-196, and 162-944 of the Code of the City of New Orleans to define and provide for the regulation of a new subclass of tour vehicle and a new type of certificate of public necessity and convenience with regard to per capita continuous loop sightseeing tour vehicles; and to otherwise provide with respect thereto. Annotation: (Technical Corrections Committee). Needed). (Referred to the Public Works 32138 35. CAL. NO. 32,159 - BY: COUNCILMEMBER CANTRELL Brief: An Ordinance to effect a zoning change from an HU-RM1 Historic Urban Multi-Family Residential District to an HU-MU Historic Urban Neighborhood Mixed-Use District, on Square 239, Lots A and B and Lot 11 or 71, in the Fourth Municipal District, bounded by Carondelet, Felicity, and St. Mary Streets and St. Charles Avenue (Municipal Addresses: 1812-1824 Carondelet Street); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 91/17) Annotation: (90 Days Cn. Deadline 4/11/18). (Cn. Deadline 4/5/18). Cms. Guidry and Head voting “NAY†. 32159 36. CAL. NO. 32,160 - BY: COUNCILMEMBER CANTRELL Brief: An Ordinance to effect a zoning change from an HU-RD2 Historic Urban Two-Family Residential District to an HU-MU Neighborhood Mixed-Use District, on Square 306, a portion of Lot A-1-A, in the Second Municipal District, bounded by Bienville Avenue, N. Tonti, Conti, and N. Rocheblave Streets (Municipal Addresses: 2401-2407 Bienville Avenue, 315-329 N. Tonti Street, and 2416-2418 Conti Street); and otherwise to provide with respect thereto. (ZONING DOCKET NO. 93/17) Annotation: (90 Days Cn. Deadline 4/11/18). (Cn. Deadline 4/5/18). Cms. Gray, Ramsey and Williams voting “NAY†. 32160 37. CAL. NO. 32,163 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,610 M.C.S., as amended entitled "An Ordinance Providing an Operating Budget of Revenues for the City of New Orleans for the Year 2018" to carry over and appropriate funds from Intergovernmental Transfers, Fund Balance, to the Department of Law for outstanding settlements and judgements. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended to forward to the Full Council with Amendment). 32163 38. CAL. NO. 32,164 - BY: COUNCILMEMBERS HEAD, BROSSETT, CANTRELL, GUIDRY AND WILLIAMS (BY REQUEST) Brief: An Ordinance to amend Ordinance No. 27,611 M.C.S., as amended entitled "An Ordinance Providing an Operating Budget of Expenditures for the City of New Orleans for the Year 2018" to carry over and appropriate funds from Intergovernmental Transfers, Fund Balance, to the Department of Law for outstanding settlements and judgements. Annotation: Fiscal Note received. (Referred to the Budget Committee). (Budget Committee recommended to forward to the Full Council with Amendment). 32164 39. CAL. NO. 32,174 - BY: COUNCILMEMBER RAMSEY (BY REQUEST) Brief: An Ordinance to amend and reordain Sections 146-141, 146-145, 146146, and 146-152 and to ordain Section 146-154 of the Code of the City of New Orleans, relative to the installation and required specifications of driveways and sidewalks, terms of permit validity, to authorize enforcement of established permitting and technical standards; and to provide otherwise with respect thereto. 32174 40. CAL. NO. 32,178 - BY: COUNCILMEMBERS WILLIAMS, HEAD, GUIDRY, CANTRELL, RAMSEY, BROSSETT AND GRAY (BY REQUEST) Brief: An Ordinance to ordain Division 41, of Article III, Chapter 70, of the Code of the City of New Orleans, to establish a new dedicated fund, to be titled the "Integrated Green Infrastructure Project Fund," to dedicate the funds received by the City of New Orleans relative to properties that do not physically comply with the Stormwater Code of the City of New Orleans; and to otherwise provide with respect thereto. Annotation: (Referred to Committee). the Public Works, Sanitation and Environment 32178 41. CAL. NO. 32,179 - BY: COUNCILMEMBERS WILLIAMS, HEAD, GUIDRY, CANTRELL, RAMSEY, BROSSETT AND GRAY (BY REQUEST) Brief: An Ordinance to ordain Section 2-1105 of the Code of the City of New Orleans, to establish appropriate fees-in-lieu of rate for properties that do not physically comply with the Stormwater Code of the City of New Orleans; and to otherwise provide with respect thereto. 32179 42. CAL. NO. 32,180 - BY: COUNCILMEMBERS WILLIAMS, HEAD, GUIDRY, CANTRELL, RAMSEY, BROSSETT AND GRAY (BY REQUEST) Brief: An Ordinance to amend and reordain Section 26-15 of the Code of the City of New Orleans, relative to the City of New Orleans' amendments to the adopted International Building Code, 2015 Edition; to establish therein the Stormwater Code of the City of New Orleans, which includes permitting and submittal requirements, fees, plan review, and various standards relative thereto; and otherwise provide with respect thereto. Annotation: (Referred to Committee). the Public Works, Sanitation and Environment 32180 43. CAL. NO. 32,181 - BY: COUNCILMEMBER RAMSEY Brief: An Ordinance to direct the Department of Sanitation to conduct recycling and composting workshops; to amend and reordain Chapter 6, Article II title and Section 6-31, related to the definition and application of administrative procedures application to the solid waste; Section 138-1 relative to responsibility for solid waste disposal to include recycling and composting; Section 138-2 relative to definitions related to waste management, recycling and composting; and to ordain Article VII, Section 138-106 through 138200 of the Code of the City of New Orleans, relative to waste reduction, composting and recycling requirements; and otherwise to provide with respect thereto; Annotation: (Technical Amendment needed). (Referred Sanitation and Environment Committee). 32181 44. CAL. NO. 32,184 - BY: COUNCILMEMBER RAMSEY to the Public Works, Brief: An Ordinance to temporarily waive certain fees, permit fees, and requirements within and around the Cut-Off Recreation Center located within the 6600 block of Belgrade Street, New Orleans, Louisiana, for the repass event for Fred Banks, Jr.’s funeral on Saturday, February 17, 2018, from 11:00 a.m. to 4:00 p.m., to specify the duration and boundaries of said waiver; and to provide otherwise with respect thereto. 32184 45. RESOLUTION - NO. R-18-65 - BY: GUIDRY, BROSSETT AND GRAY COUNCILMEMBERS WILLIAMS, HEAD, Brief: APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR APPROVAL TO CONSTRUCT NEW ORLEANS POWER STATION AND REQUEST FOR COST RECOVERY AND TIMELY RELIEF RESOLUTION AND ORDER REGARDING THE APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR APPROVAL TO CONSTRUCT NEW ORLEANS POWER STATION AND REQUEST FOR COST RECOVERY AND TIMEL RELIEF DOCKET NO. UD-16-02 R-18-65 46. MOTION – NO. M-18-67 – BY: COUNCILMEMBERS HEAD, WILLIAMS, GUIDRY, CANTRELL, RAMSEY AND GRAY Brief: Requesting and authorizing the President of the Council to sign a cooperative endeavor agreement with the Orleans Parish Sheriff’s Office for the provision of security services for the City Council, for the period of January 1, 2018 through December 31, 2018, for a maximum compensation amount not to exceed $46,400 per month or $556,795.01 for twelve (12) months. M-18-67 47. RESOLUTION - NO. R-18-69 - BY: COUNCILMEMBERS GUIDRY, WILLIAMS, HEAD, CANTRELL, RAMSEY, BROSSETT AND GRAY Brief: Opposing strongly H.R. 38 and S. 446 and any other attempts to undermine Louisiana state laws. R-18-69 48. MOTION - NO. M-18-70 - BY: BROSSETT AND GRAY COUNCILMEMBERS WILLIAMS, HEAD, GUIDRY, Brief: Requesting and authorizing the President of the Council to sign a contract containing a scope of work consistent with the September 15, 2017 DSM Potential Study Consultant Request for Qualifications and the Council’s needs for a neutral, unbiased expert independent consultant with substantial experience performing DSM Potential Studies, retaining Optimal Energy as the sole contractor, and setting the maximum compensation under such contract at $300,000.00. M-18-70 49. RESOLUTION - NO. R-18-71 - BY: COUNCILMEMBER GRAY Brief: A RESOLUTION calling a special election in the Improvement District for Tuesday, November 6, 2018. Kenilworth R-18-71 50. MOTION - NO. M-18-72 - BY: COUNCILMEMBER RAMSEY Brief: Directing the City Planning Commission to conduct a public hearing to consider an amendment to Ordinance No. 26,076 MCS (Zoning Docket 069/14) to delete proviso 4(d), for a property in an HMC-2 Historic Marigny/Tremé/Bywater Commercial District, on Square 373, Lots A1, 11A, and R, in the Third Municipal District, bounded by Saint Claude Avenue, Elysian Fields Avenue, Marigny Street, and North Rampart Street (Municipal Address: 2222 Saint Claude Avenue); and otherwise to provide with respect thereto. M-18-72 51. M/R - NO. M-18-63 52. M/R - NO. M-18-73 53. M/R - NO. M-18-74 54. M/R - NO. M-18-75 55. M/R - NO. M-18-76 56. M/R - NO. M-18-77 57. M/R - NO. M-18-78 58. M/R - NO. M-18-79 59. M/R - NO. M-18-80 60. M/R - NO. M-18-81 61. M/R - NO. M-18-82 62. ORDINANCES ON FIRST READINGS 63. MOTION TO ADJOURN Appendix N RESOLUTION NO. R-19-18 CITY HALL: January 23, 2019 BY: COUNCILMEMBERS MORENO, WILLIAMS AND BROSSETT WHEREAS, pursuant to the Constitution of the State of Louisiana and the Home Rule Charter of the City of New Orleans ("Charter"), the Council of the City of New Orleans ("Council") is the governmental body with the power of supervision, regulation, and control over public utilities providing service within the City of New Orleans; and WHEREAS, Entergy New Orleans, LLC, effective September 1, 2015, is a public utility providing electric and natural gas service to all of New Orleans; and WHEREAS, ENO is a wholly owned subsidiary of Entergy Utility Holding Company, LLC. The other four operating companies are Entergy Arkansas, Inc. (“EAI”), Entergy Louisiana, LLC (“ELL”), Entergy Mississippi, Inc. (“EMI”), and Entergy Texas, Inc. (“ETI”); and WHEREAS, on June 20, 2016, Entergy New Orleans (“ENO”) filed its original application for the construction of the New Orleans Power Station (“NOPS”) on the Michoud site in New Orleans, and WHEREAS, on August 11, 2016, the New Orleans City Council approved resolution R16-332 and opened Docket Number UD-16-02 for the review of ENO’s application, and WHEREAS, on July 6, 2017, ENO filed the “Supplemental and Amending Application of Entergy New Orleans, Inc. for Approval to Construct New Orleans Power Station and Request for Cost Recovery and Timely Relief”, and WHEREAS, on August 10, 2017, the Council adopted Resolution R-17-426, which established a procedural schedule to examine the application as amended, and WHEREAS, the Council was clear and unambiguous as to the extreme importance of the NOPS proceedings and the seriousness of the decision that the NOPS proposal placed before the Council; and WHEREAS, Resolution R-17-426 required ENO to conduct no fewer than five public meetings and required the Council Utilities Regulatory Office (“CURO”) to hold a public meeting in Council chambers, and WHEREAS, the Council schedules public hearings only when “it is deemed desirable by the Council that members of the public at large who are not parties of record should be heard on any matter” in a regulatory proceeding; 1 and WHEREAS, the October 17, 2017 NOPS public hearing was held pursuant to such a deliberative determination by the Council; and WHEREAS, even though the City Code provides that public comment gathered at such a public hearing is not itself part of the regulatory administrative record, holding such a hearing clearly indicates that the Council believed it was very important to hear from the public and to receive accurate public opinions; and WHEREAS, the input from public comment can and should be weighed by the Council in the overall decision-making process; and WHEREAS, engaging in any manipulation, distortion or deception in connection with such an important public meeting severely undermines the Council’s clearly stated desire to obtain accurate public opinion; and 1 City Code Section 158-431 (b). 2 WHEREAS, the Council also clearly ascribed the same importance to public comment at the Utility, Cable, Telecommunications and Technology Committee (“UCTTC”) meeting held to discuss NOPS on February 21, 2018; and WHEREAS, even though the City Code provides that public comment received at such a committee hearing is not itself part of the administrative record, receiving public comment at a committee meeting indicates that the Council believed it was important to hear from the public and to receive accurate public opinions; and WHEREAS, in light of the Council’s specific requirement to conduct a public hearing on ENO’s NOPS proposal, and to receive public comment at the UCTTC meeting, the Company, a regulated utility providing critical electrical service to the entire City of New Orleans, had a clear legal, regulatory and ethical obligation to allow the members of the public, not parties of record to the case, to provide their honest, uncompensated and non-deceptive expressions of support or opposition to the Council; and WHEREAS, on March 8, 2018, the City Council met and heard public comment on Resolution R-18-65, a resolution to approve ENO’s application to construct NOPS and request for cost recovery and timely relief, and approved said Resolution by a vote of 6 to 1; and WHEREAS, in an ENO news release dated May 10, 2018, ENO stated that an internal investigation had been launched after the filing of the lawsuit alleging that people were paid to attend or speak at one or more public meetings; and WHEREAS, the news release stated that ENO entered into a contract with The Hawthorn Group (“Hawthorn”) “to assist with organizing local grassroots support for NOPS at two public meetings relating to NOPS on October 16, 2017, and February 21, 2018;” and 3 WHEREAS, the news release further stated that ENO’s own investigation concluded that, in fact, Hawthorn retained Crowds on Demand, allegedly without ENO’s knowledge or consent, and that, allegedly without ENO’s knowledge or consent, Crowds on Demand paid individuals to appear and/or speak at two meetings for which Hawthorn was contracted to organize supporters; and WHEREAS, the six Councilmembers who voted to approve the NOPS plant, were deprived of the honest, accurate, and authentic opinions of the public, which they intended to receive when they ordered a public hearing and received hours of public comment at the UCTTC meeting; and WHEREAS, Councilmembers were entitled to accurate public input as they evaluated the administrative record and decided how to vote on the NOPS plant; and WHEREAS, four of the six Councilmembers who voted to approve NOPS no longer serve on the Council; and WHEREAS, because of the actions of ENO, the Hawthorn Group, and Crowds on Demand, the members who joined the Council on May 7, 2018 similarly were deprived of the honest, accurate, and authentic opinions of the public; NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF NEW ORLEANS, That Resolution R-18-65 is hereby repealed and approval to construct the New Orleans Power Station and request for cost recovery and timely relief is rescinded. 4 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF NEW ORLEANS, That the Department of Safety and Permits shall not issue permits that conflict with the provisions provided herein. THE FOREGOING RESOLUTION WAS READ IN FULL, THE ROLL WAS CALLED ON THE ADOPTION THEREOF, AND RESULTED AS FOLLOWS: YEAS: NAYS: ABSENT: AND THE RESOLUTION WAS ADOPTED. 5 Appendix O RESOLUTION NO. R-19-17 CITY HALL: January 23, 2019 BY: COUNCILMEMBERS MORENO AND WILLIAMS IN RE: THE COUNCIL OF THE CITY OF NEW ORLEANS INDEPENDENT INVESTIGATION OF ENTERGY NEW ORLEANS (“ENO”) RELATIVE TO ALLEGATIONS OF THE USE OF PAID ACTORS IN COUNCIL PUBLIC MEETINGS IN CONNECTION WITH DOCKET NO. UD-16-02 AND RESOLUTION NO. R-17-426 RESOLUTION AND ORDER REGARDING IMPOSITION OF SANCTIONS AGAINST ENO BASED UPON REPORT OF INDEPENDENT INVESTIGATORS FILED WITH THE COUNCIL ON OCTOBER 29, 2018 WHEREAS, pursuant to the Constitution of the State of Louisiana and the Home Rule Charter of the City of New Orleans (“Charter”), the Council of the City of New Orleans (“Council”) is the governmental body with the power of supervision, regulation, and control over public utilities providing service within the City of New Orleans; and WHEREAS, pursuant to its powers of supervision, regulation, and control over public utilities, the Council is responsible for fixing and changing rates and charges of public utilities and making all necessary rules and regulations to govern applications for the fixing and changing of rates and charges of public utilities; and WHEREAS, Entergy New Orleans, LLC (“ENO” or "Company"), is a public utility providing electric and natural gas service to all of New Orleans; 1 and WHEREAS, ENO is a wholly owned subsidiary of Entergy Utility Holding Company, LLC (“EUH”) and the other four operating companies are Entergy Arkansas, Inc. (“EAI”), Entergy On November 30, 2017, Entergy New Orleans, Inc. undertook a restructuring that resulted in the transfer of substantially all of its assets and operations to Entergy New Orleans, LLC, which since that date provides retail electric and gas utility service to New Orleans. 1 Louisiana, LLC, ("ELL"), Entergy Mississippi, Inc. (“EMI”), and Entergy Texas, Inc. (“ETI”). These five operating companies are referred to collectively as the “Operating Companies”; and WHEREAS, the Council is responsible for ensuring that New Orleans customers receive reliable electric and gas service at just and reasonable prices; and WHEREAS, the Council is responsible for assuring that its proceedings relative to its utility regulatory function adhere to the highest standards of integrity, transparency, accuracy, efficacy, fairness and reliability; and BACKGROUND WHEREAS, the entire NOPS process has been prolonged and arduous, and has its roots in bad choices by ENO, including its decision in its original application to seek approval for a new plant that was clearly and unjustifiably oversized at 226 MW; and WHEREAS, the initial filing proposed a natural gas combustion turbine plant, which ignored the often articulated concerns of the Council, the Advisors and the community that any new plant would have to be a significantly improved technology from the antiquated Michoud plant, which would provide measureable environmental benefits; and WHEREAS, the initial proposal also ignored the universal desire to facilitate the integration of renewables and to expand energy efficiency while also providing “black start,” allweather capability; and WHEREAS, the reaction of the Council, its Advisors and the public to the original filing, in part, caused ENO to propose the more acceptable New Orleans Power Station (“NOPS”) alternative; and 2 WHEREAS, the Council was clear and unambiguous as to the extreme importance of the NOPS proceedings and the seriousness of the decision that the NOPS proposal placed before the Council; and WHEREAS, all action items on a regular Council meeting agenda must have some opportunity for public comment under the State’s open meeting law, not all matters that come before the Council as the utility regulator require a public hearing; and WHEREAS, the Council schedules public hearings only when “it is deemed desirable by the council that members of the public at large who are not parties of record should be heard on any matter” in a regulatory proceeding; 2 and WHEREAS, the October 17, 2017 NOPS public hearing was held pursuant to such a deliberative determination by the Council; and WHEREAS, even though the City Code specifically excludes public comment gathered at such a public hearing from a regulatory administrative record, holding such a hearing clearly indicates that the Council believed it was very important to hear from the public and to receive accurate public opinions; and WHEREAS, engaging in any manipulation, distortion or deception in connection with such an important public meeting severely undermines the Council’s clearly stated desire to obtain accurate public opinion, and is contemptuous of the Council’s plenary utility regulatory authority; and WHEREAS, the Council also clearly ascribed the same importance to public comment at the Utility, Cable, Telecommunications and Technology Committee (“UCTTC”) meeting held to discuss NOPS on February 21, 2018; and 2 City Code Section 158-431 (b). 3 WHEREAS, even though the City Code explicitly excludes public comment gathered at such a committee hearing from the administrative record, receiving public comment at a committee meeting indicates that the Council believed it was important to hear from the public and to receive accurate public opinions; and WHEREAS, on April 19, 2018 a lawsuit was filed in Civil District Court alleging that people were paid to attend one or more NOPS-related meetings, and alleging that as a result opponents of the NOPS plant were prevented from entering due to the limited capacity of the meeting rooms; and WHEREAS, in an ENO news release dated May 10, 2018, ENO stated that an internal investigation had been launched after the filing of the lawsuit alleging that people were paid to attend or speak at one or more public meetings; and WHEREAS, the news release stated that ENO entered into a contract with The Hawthorn Group (“Hawthorn”) “to assist with organizing local grassroots support for NOPS at two public meetings relating to NOPS on October 16, 2017, and February 21, 2018;” and WHEREAS, the news release further stated that ENO’s own investigation concluded that, in fact, Hawthorn retained Crowds on Demand, allegedly without ENO’s knowledge or consent, and that, allegedly without ENO’s knowledge or consent, Crowds on Demand paid individuals to appear and/or speak at two meetings for which Hawthorn was contracted to provide specific numbers of “supporters” to be present at the meetings with certain tangible expressions of support (e.g., t-shirts and signs), including some paid attendees that would be designated to speak at the meetings in support of the NOPS plant using prepared information; and WHEREAS, neither the Council, the Advisors nor the public was aware that ENO had hired an “astroturfing” company like Hawthorn prior to the May 10th ENO news release; and 4 WHEREAS, based upon ENO’s own investigation, which confirmed many key elements of the allegations about paid “supporters,” the Council on May 24, 2018 considered and unanimously adopted Motion M-18-196 immediately initiating an independent third-party investigation of ENO relative to allegations that ENO, Entergy, or some other entity paid or participated in paying actors to attend and/or speak in support of NOPS at one or more public meetings in connection with ENO’s NOPS application; 3 and WHEREAS, the Council also adopted Motion M-18-197 directing Council staff to issue a Request for Qualifications to begin the competitive selection process established under Council Rule 45 to select investigators to conduct the independent investigation; and WHEREAS, a Request for Qualifications for an independent investigator was issued on May 25, 2018; and WHEREAS, on June 21, 2018, the Council adopted Motion M-18-255 selecting Sher, Garner, Chaill, Richter, Klein, and Hilbert, L.L.C. and the Honorable Calvin Johnson (retired) (“Investigators”) to conduct the investigation, and WHEREAS, the contract between the Council and the Investigators was executed on August 4, 2018, and the investigation was formally commenced; and WHEREAS, the Contract required that a report be filed with the Council on or before September 4, 2018; and WHEREAS, Investigators asserted to the Council that ENO was resisting certain requests for documents and information, Investigators requested and received two extensions from the Council for filing the report; and ENO and Entergy will be referred to collectively and interchangeably because the facts indicate that ENO, its parent and other Entergy affiliates coordinated efforts with respect to the matters under investigation. 3 5 WHEREAS, Investigators filed their final report (“Report”) with the Council on October 29, 2018; and WHEREAS, the Report finds, among other things, that: • • • • • Numerous individuals were paid to attend and/or speak in support of ENO at two public meetings; Instead of disclosing the payments and the affiliation with ENO these attendees and speakers were commissioned to pose as citizens genuinely in support of NOPS and were coached with respect to comments and with respect to avoiding the media; Payment and the obligation to pay flowed from ENO through ENO’s vendors to the individuals hired to attend and/or speak at meetings on October 16, 2017 and February 21, 2018; ENO took no corrective action and continued to deny any knowledge of the improper activity even after it was clear the conduct had occurred; ENO knew or should have known that such conduct occurred or reasonably might occur as a result of its engagement of Hawthorn; and WHEREAS, these findings are extremely troubling to the Council and show a complete disregard for the Council’s high standards of integrity, transparency, accuracy, efficacy, fairness and reliability in the Council’s utility regulatory process, and undermine confidence in the utility regulatory system; and WHEREAS, it is irrelevant that prior to recent revisions, Council rules 4 did not require that speakers disclose on comment cards whether they received or would receive compensation for speaking, nor did they require other attestations or a signature; and WHEREAS, the conduct detailed in the Report does not affect or alter the evidentiary record created in Docket No. UD-16-02 because the Code of the City of New Orleans specifically states that “no part of statements made or evidence adduced at… [an] at-large public hearing shall, in legal terms form (and such matter shall not form) the basis of any council decision in a contested In June 2018 the Council revised the format of comment cards for speakers to include disclosure of compensation, attestation to truthfulness and require the speaker’s signature. 4 6 proceeding,” Code of the City of New Orleans, Section 158-431(b), ENO’s conduct, as detailed in the Report, has adversely affected the utility regulatory system by undermining the Council’s high standards of integrity, transparency, accuracy, efficacy, fairness and reliability; 5 and WHEREAS, ENO’s conduct also impeded the Council’s purpose in holding the at-large public hearing, and the UCTTC hearing, which was for the Council to hear the accurate opinions of the public regarding the matter and to allow members of the public at large who were not parties of record to be heard; and WHEREAS, ENO’s conduct has caused Council members, staff and Council Advisors to incur substantial hours of additional work to deal with the matter for the past eight months and will continue to cause additional work for the foreseeable future as the Council and the Advisors deal with imposing appropriate sanctions and monitoring them for years to come; and WHEREAS, such conduct by a regulated utility cannot be tolerated and must be effectively deterred in the future; and WHEREAS, on October 31, 2018, the Council adopted Resolution R-18-474 initiating a show cause proceeding regarding the imposition of sanctions against ENO based upon the Investigators’ Report; and WHEREAS, the Council has the expressed authority to impose penalties, monetary and otherwise, as provided in Code of the City of New Orleans, Section 3-130 (7) and Section 158-52; and WHEREAS, the reasonableness of penalties is associated with several critical factors including: (1) the well supported finding that ENO knew or should have known that the improper conduct occurred or reasonably would occur; (2) the extremely serious nature and extent of the In addition, the Report also confirmed that “Investigators did not uncover any information that showed any similar activity concerning the evidentiary hearing conducted by Judge Jeffrey S. Gulin.” 5 7 consequences of the conduct; and (3) the critical need to assess a penalty that will effectively deter future deleterious conduct so that improper conduct does not become simply a cost of doing business; and WHEREAS, the Council has lost trust in the management team responsible for the conduct described both generally in Resolution R-18-474 and in detail in the Report, which makes deterrence a far more pressing concern; and WHEREAS, the Council directed ENO to demonstrate, within thirty (30) days, why penalties and sanctions including: (1) a cash payment of $5 million to be paid in accordance with and for purposes determined by the Council; (2) certification that each ENO management level employee has or will complete a third-party ethics training course; and (3) submitting for Council approval an ENO Code of Conduct, developed with special emphasis on its dealings with and before the Council, which includes credible oversight and enforcement provisions specifically designed to avoid a repeat of the glaring breaches of ENO’s existing Entergy Values and Ethics Statement, should not be imposed; and WHEREAS, interested parties were also allowed to file comments with the Council within thirty (30) days of adoption of Resolution R-18-474; and WHEREAS, the Council further ordered that all costs associated with the Investigation incurred by ENO and the Council, including monetary penalties and costs of complying with nonmonetary penalties, would be disallowed for recovery from ratepayers pursuant to Code of the City of New Orleans, Section 158-582 and Section 158-626; and WHEREAS, Resolution R-18-474 states that all costs incurred by the utility Advisors in connection with any and all aspects of the Investigation, including, but not limited to, monitoring penalties and sanctions shall be billed and reimbursed as usual, however, such payments would 8 not be recoverable from ratepayers, and would be outside of and in addition to the Advisors’ contract budgets, subject to normal Council review and oversight. ENO was also ordered to exclude all costs and penalties associated with this show cause proceeding, as well as their related regulatory ratemaking effects, from prospective rate action filings and clearly demonstrate the methodology by which such have been excluded; and ENO’S RESPONSE TO THE SHOW CAUSE RESOLUTION WHEREAS, ENO filed its Response to Show Cause (“Response”) on November 30, 2018 criticizing the Investigators’ Report and claiming that the Council lacks the authority to impose penalties, including those outlined in Resolution R-18-474; 6 and WHEREAS, in its Response, ENO asserts that the Investigators “failed to produce any evidence substantiating the allegation that the Company ‘knew’ that Hawthorn or its contractor, Crowds on Demand, had paid people to appear in support of the New Orleans Power Station;” 7 and WHEREAS, ENO also claims that the Investigators “intentionally failed to disclose to the Council and the public evidence proving that ENO was not aware of the conduct at issue and also generally conducted themselves in a manner that ignored well established legal principles along with basic tenets of due process and sought to confirm a pre-ordained conclusion rather than objectively reporting the facts.” 8 Specifically, ENO complains that the Investigators refused to allow “Entergy’s counsel to participate in interviews of non-employee witnesses or even question Entergy’s own witnesses….;” 9 and ENO Response to Show Cause at p. ii. ENO Response to Show Cause at p. i. 8 ENO Response to Show Cause at p. i. 9 ENO Response to Show Cause at p. i. 6 7 9 WHEREAS, the Company takes exception with the Investigators’ Report because it “omitted material documents that did not support the Investigators’ conclusions” including certain correspondence that ENO believes to be exculpatory. 10 ENO further argues that the “Investigators’ refusal to acknowledge these documents or address them in the Report calls into question whether they were fair and objective or simply intent on generating a storyline that supported their desired outcome and creating media headlines;” 11 and WHEREAS, ENO also avers that it did not violate any laws or Council rules by engaging a subcontractor that paid individuals to appear at public Council meetings to express support for NOPS. The Company cites the Investigators’ Report, which stated that “[t]here are no specific Council rules that prohibit this practice. Nor are there rules which require parties or groups with business before the Council to inform the Council that attendees and/or speakers are compensated;” 12 and WHEREAS, ENO asserts that in the “absence of a violation of any charter section, ordinance, rule, or regulation, the Council does not have the authority to impose a $5 million fine or any of the proposed ‘penalties’ in Resolution R-18-474.” 13 The Company also argues that the “imposition of a fine or other penalties under these circumstances is blatantly unconstitutional and would violate the First Amendment, the Ex Post Facto clause, substantive due process, and the Eighth Amendment of the United States Constitution;” 14 and WHEREAS, ENO disagrees with the provisions of Resolution R-18-474 that cite the Home Rule Charter of the City of New Orleans, Section 3-130 (7) 15 and New Orleans City Code ENO Response to Show Cause at p. i. ENO Response to Show Cause at p. 7-8. 12 ENO Response to Show Cause at p. ii citing Investigators’ Report at p. 50. 13 ENO Response to Show Cause at p. ii. 14 ENO Response to Show Cause at p. ii. 15 Home Rule Charter of the City of New Orleans, Section 3-130(7). 10 11 10 Section 158-52 as the sources of the Council’s expressed authority to impose penalties, monetary and otherwise.” 16 The Company asserts that Code Section 158-52 concerning false or misleading representations made in any filing or throughout proceedings involving the setting of rates only applies to misrepresentations of fact, not to paid actors who feigned their support for the NOPS proposal; 17 and WHEREAS, ENO’s Response attempts to draw a distinction between representations of fact and statements made by paid actors as “unsworn public statements of opinion;” 18 and WHEREAS, ENO narrowly interprets the Council’s authority to issue penalties by claiming that Home Rule Charter Section 3-130(7), which allows for the imposition of reasonable penalties, only applies to regulatory rate orders issued by the Council; 19 and WHEREAS, according to ENO, even if the Council had the authority to impose a fine under these circumstances, which ENO claims does not exist, “the amount of that fine would be further limited by the Code to something far less than $5 million.” 20 ENO argues that “a violation pursuant to Code Section 158 is considered a “misdemeanor,” and City Code Section 1-13 caps fines at $300 for the violation of any provision of the City Code or any ordinance when no specific penalty has been provided;” 21 and WHEREAS, according to ENO’s Response, providing public comment to a city council is “classic First Amendment activity” 22 and that the Council violated ENO’s First Amendment New Orleans City Code, Section 158-52. ENO Response to Show Cause at p. 17. 18 ENO Response to Show Cause at p. 18. 19 ENO Response to Show Cause at p. 18-19. 20 ENO Response to Show Cause at p. 19. 21 ENO Response to Show Cause at p. 19. 22 ENO Response to Show Cause at p. 22. 16 17 11 rights by penalizing ENO “because some speakers at public meetings who supported the NOPS proposal were paid to attend;” 23 and WHEREAS, ENO further criticizes the Investigators’ Report for using the phrase “knew or should have known” as a standard by which the Company’s conduct was evaluated throughout the investigation. 24 Specifically, the Company asserts that the Investigators used the standard “should have known” to “mask the fact that there was no evidence that ENO actually ‘knew’ about the conduct at issue;” 25 and WHEREAS, ENO asserts that it engaged Hawthorn based on its “national reputation and its repeated representations that it had the means and ability to identify and recruit legitimate supporters from New Orleans who supported the NOPS project.” 26 According to its Response, “ENO never anticipated that Hawthorn would hire Crowds on Demand, which was in violation of Entergy’s contract with Hawthorn, or be involved in paying people to appear at public meetings before the Council;” 27 and WHEREAS, the Company’s Response states “[f]ollowing the October 16, 2017, public meeting, ENO questioned Hawthorn several times about allegations that had arisen regarding payments to NOPS supporters, and Hawthorn repeatedly denied the allegation. On October 23, 2017, ENO was alerted to a tweet in which the author stated that there had been paid protesters at the October 16th public meeting. ENO immediately forwarded the tweet to Hawthorn. There was a subsequent tweet later that same day, which ENO also forwarded to Hawthorn;” 28 and ENO Response to Show Cause at p. 23. ENO Response to Show Cause at p. 6. 25 ENO Response to Show Cause at p. 6-7. 26 ENO Response to Show Cause at p. 9. 27 ENO Response to Show Cause at p. 10. 28 ENO Response to Show Cause at p. 10. 23 24 12 WHEREAS, ENO asserts that “immediately following the February 21, 2018 public meeting, ENO emailed Hawthorn that a NOPS opponent wearing a marked-up, orange ENO shirt had commented about paid supporters and to question why some of the people recruited by Hawthorn wore orange shirts to the second meeting, despite Entergy’s understanding that the orange t-shirts were only to be worn at the October 16, 2017 public hearing.” 29 According to ENO, “Hawthorn dismissed the payment allegation and told ENO that the supporters recruited by Hawthorn who wore the orange t-shirts to the February 21 Utility Committee Meeting did so because they “‘were passionate about the cause’ and ‘believed in the message;’” 30 and WHEREAS, on March 5, 2018, ENO emailed Hawthorn to relay another payment allegation that had been circulated by the opponents of NOPS and Hawthorn responded by stating, “Interesting.” 31 ENO further argues that it “repeatedly questioned Hawthorn about the payment allegations following the October 16, 2017, and February 21, 2018, public meetings, and Hawthorn repeatedly denied the allegations;” 32 and WHEREAS, ENO’s procedural due process claims are based primarily on the refusal of the Investigators to allow Entergy to participate in the interviews of third-party witnesses and the refusal of the Investigators to produce a complete set of their interview notes; 33 and WHEREAS, the Company argues that “the proposed fine further infringes on ENO’s substantive due process rights and Eighth Amendment right to be free from excessive penalties.”34 ENO relies on BMW v. Gore, which requires “fair notice not only of the conduct that will subject him to punishment, but also the severity of the penalty that a State may impose.” 35 According to ENO Response to Show Cause at p. 11. ENO Response to Show Cause at p. 11. 31 ENO Response to Show Cause at p. 11. 32 ENO Response to Show Cause at p. 12. 33 ENO Response to Show Cause at p. 15. 34 ENO Response to Show Cause at p. 26. 35 ENO Response at p. 28, citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996). 29 30 13 the Company, BMW requires the application of three guideposts to determine whether adequate notice was given regarding the magnitude of the sanction including (1) the degree of reprehensibility of the nondisclosure; (2) the disparity between the harm or potential harm suffered by the claimant and his punitive damages award; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases; 36 and WHEREAS, the Company asserts that, when applying the guideposts set forth in BMW, the Council’s proposed $5 million fine would clearly violate substantive due process and the Eighth Amendment. 37 Similarly, ENO uses the same arguments as they relate to the Council’s authority to require ethics training for ENO management and the development of an ENO code of conduct to prohibit the behavior in the future. 38 The Company, rejects the authority of its regulator, responding that where no Council rules or other state laws were violated, the Council does not have the authority to require ENO’s leadership to attend ethics training or to impose an ENO-specific code of conduct; 39 and INTERESTED PARTIES’ COMMENTS WHEREAS, the Alliance for Affordable Energy (“Alliance”) submitted public comments to the Council’s show cause resolution on November 30, 2018 noting several criticisms and suggestions. The Alliance noted that the Report asserted that ENO was “totally uncooperative throughout the investigation.” 40 The Alliance notes a variety of materials that ENO did not provide, which the Alliance suggests ENO should have provided. The Alliance also avers that the Investigators did not provide as much information about the February 21, 2018 meeting as the Id. Id. 38 Id. 39 ENO Response to Show Cause at p. 30. 36 37 40 Comments of the Alliance for Affordable Energy dated November 30, 2018 at p. 2. 14 October 16, 2017 meeting. The Alliance urges the Council to reopen the investigation and direct ENO “to provide all information that ENO previously refused to turn over and impose a fine of $10,000 a day for every day ENO fails to provide the information requested;” 41 and WHEREAS, while complimenting the Investigators on some points the Alliance criticizes them for not focusing on the “true victims of this fraud.” 42 The Alliance also criticizes Resolution R 18-475 for not going far enough in discussing and addressing the harms to the residents of New Orleans “intentionally created by ENO’s actions;” 43 and WHEREAS, the Alliance criticizes the proposed $5 million penalty as “merely a slap on ENO’s wrist,” 44 which they assert “will not deter future conduct.” 45 The Alliance also criticizes the basis for the $5 million calculation and recommends a $25 million penalty based upon what the Alliance calculates to be “approximately 5% of ENO’s revenues;” 46 and WHEREAS, the Alliance also urges that although the investigation is incomplete, there is enough evidence to warrant the City Council rescinding the Council’s approval of NOPS; 47and WHEREAS, Justice and Beyond Coalition, and 350 New Orleans filed very similar comments; both arguing that the “obvious reason” 4849 for ENO’s “drastic” conduct is the “lack of genuine community support for a 30-year mortgage on a gas power plant, which would benefit only Entergy’s bottom line, not our community.” 50 Both criticize the proposed $5 million fine as a “drop in the bucket,” 51 52 and urge that the Council (1) insist on access to the 70 documents ENO Id. at p. 2-4. Id. at p. 3. 43 Id. at p. 4. 44 Id. at p. 6. 45 Id. at p. 7. 46 Id. at p. 8. 47 Id. at p. 8-10. 48 360 New Orleans Comments on Resolution R-18-474 dated November 30, 2018 at p. 1. 49 Justice and Beyond Coalition Comments dated November 30, 2018 at p. 1. 50 360 New Orleans Comments on Resolution R-18-474 at p. 1. 51 Id. at p. 2 52 Justice and Beyond Coalition Comments at p. 2. 41 42 15 is withholding; (2) rescind the March 8, 2018 vote in favor of the gas power plant; (3) fully review the decision that led to this vote so the five new Council Members can make an informed decision; and (4) insist on a full analysis of alternative options to a gas peaking plant before any subsequent vote; 53 54and WHEREAS, three members of the public also submitted written comments including Lou Furman who asserted that “the real issue is all the falsehoods Entergy is using to get approval for a gas plant we do NOT need;” 55 and Marion Freistadt, Ph.D. who called the proposed sanctions “laughably weak” 56 and urged that the Council should reverse the vote on the NOPS approval and assess a much larger fine “that is truly punitive”. 57 Finally, Robert A. Hammer, M.D. submitted comments stating that the fine imposed by the Council is “FAR too low,” and should be $50 million; 58 and WHEREAS, the Council also received written communications from Mary Cuny, an Entergy Employee; Paris Woods, Ed.M. Executive Director, College Beyond; Howard Rogers, III, Executive Director, New Orleans Council on Aging; Melissa Manuselis, Executive Director, City Year New Orleans; Melanie Bronfin, J.D., Executive Director, Louisiana Policy Institute for Children; Natalie Jayroe, President and CEO, Second Harvest Food Bank; and Calvin Mackie, Ph.D., Founder and Executive Director, STEM NOLA. 59 We note each of these communications failed to address the specific facts and circumstances surrounding the Council’s show cause Id. 360 New Orleans Comments on Resolution R-18-474 at p. 2. 55 Comments of Lou Furman dated November 14, 2018. 56 Comments of Robert A. Hammer, M.D. dated November 28, 2018. 57 Comments of Marion Freistadt dated November 19, 2018. 58 Comments of Robert A. Hammer dated, November 28, 2018. 59 Comments of Mary Cuny, Entergy Employee dated November 16, 2018; Paris Woods, Ed.M, Executive Director, College Beyond dated November 20, 2018; Howard Rogers, III, Executive Director, New Orleans Council on Aging dated November 21, 2018; Melissa Manuselis, Executive Director, City Year New Orleans dated November 26, 2018; Melanie Bronfin, J.D., Executive Director, Louisiana Policy Institute for Children dated November 26, 2018; Natalie Jayroe, President and CEO, Second Harvest Food Bank dated November 30, 2018; and Calvin Mackie, Ph.D., Founder and Executive Director, STEM NOLA dated November 30, 2018. 53 54 16 resolution, but rather provided generally supportive statements of ENO recognizing the contributions made by the Company to various organizations providing charitable and other services in New Orleans; and ANALYSIS AND LAW WHEREAS, in its Response ENO misstates, exaggerates and omits numerous facts that are relevant to the Council’s analysis of this matter; and WHEREAS, in its Response ENO disingenuously repeatedly characterizes its engagement of Hawthorn as “to recruit legitimate supporters,” yet the word legitimate does not appear in its contract with Hawthorn or in any of the communications cited by ENO in its Response; and WHEREAS, ENO strongly objects to the Hawthorn letter not being mentioned in the Report, the letter is an attached document and the Report reproduces ENO’s summary of the role of Hawthorn as: “Without ENO’s knowledge or concurrence, and in violation of its contract terms, The Hawthorn Group subcontracted at least a portion of its work to Crowds on Demand, which paid individuals to appear at public meetings organized by the New Orleans City Council on October 16, 2017 and February 21, 2018;” 60 and WHEREAS, the Report shows that at best ENO engaged in willful ignorance as to how Hawthorn would accomplish its contractual obligations to ENO; and WHEREAS, the Hawthorn contract describes the scope of services as, among other things, “turn out” 75 supporters for the hearings with 10 people “who will sign up to provide two-to-three minute testimony.” The contract, drafted by ENO, further provides that “Contractor will have all people there ahead of the hearing, and the speakers will be there at least two hours in advance to ensure they get in the room;” 61and 60 61 Investigation Report at p. 22. ENO- Hawthorn Contract at section 3.1. 17 WHEREAS, it is not plausible that ENO could believe that Hawthorn could fulfill this contractual obligation to provide 75 “volunteer supporters” who would be obligated to commit to spend multiple hours attending the meetings, 10 of whom Hawthorn was contractually obligated to have arrive two hours before the meeting, unless they were being compensated, especially in light of admissions by Charles Rice and others that ENO had not been successful in turning out volunteer supporters; and WHEREAS, ENO’s reliance on the May 9, 2018 Hawthorn letter as exoneration is totally misplaced in that it comes more than six months after allegations of paid actors began, which allegations should have been addressed immediately because unlike the Council, the Advisors and the public, ENO knew it had hired an “astroturfing” company to “turn out” supporters; and WHEREAS, even the lowest standard of reasonable conduct would require someone with knowledge of the hiring of an astroturfing firm to assume allegations of paid actors would very likely be true, triggering a vigorous investigation to determine the truth, unless there was something to fear from the truth; and WHEREAS, ENO’s assertions that it acted promptly and diligently are not credible because: 1. Although ENO claims that after the October 16th meeting “ENO questioned Hawthorn several times about allegations that had arisen regarding payments to supporters, and Hawthorn repeatedly denied the allegations,” 62 there are no clear written denials until the May letter. 2. ENO claims that an email exchange with Hawthorn after the February 21st meeting confirms Hawthorn denials earlier than May. ENO claims “Hawthorn dismissed the 62 ENO Response at p. 10. 18 payment allegations” in a return email. However, the Hawthorn email only discusses people wearing orange t-shirts at the second meeting, but makes no mention, much less a denial, of the payment allegation. 63 ENO is simply disingenuous in saying Hawthorn “dismissed” the allegation when, in fact, Hawthorn ignored the allegation. 3. ENO also asserts that on March 5, 2018 it emailed “another payment allegation” to Hawthorn, as well as a blog writer’s question seeking comment. The entirety of Hawthorn’s reply to the first email was “interesting.” To the second, Hawthorn said: “Hired an actor? Apparently their evidence is one person who is dilusional [sic] or just lying.” 64 Both non-answers are verbal sleight of hand with nothing resembling an actual, unequivocal denial. Yet, ENO meekly accepted both as definitive. 4. In a follow up email on March 5th about continued allegations from “some opponents,” Ms. Hammelman provided ENO with talking points to “refute” the allegations of payment, a meeting at Dave and Busters to get paid, and the signing of non-disclosure agreements. Within the talking points Ms. Hammelman provides private “for your background” notes to Ms. Pollard, which are different from the suggested public comments. Significantly, Ms. Hammelman never categorically denies payment, nondisclosure agreements or a meeting at Dave and Busters. Instead, she suggests that ENO deny that ENO did any of those things. For example, as to payments, Ms. Hammelman’s background comments are “some groups DO pay for ‘volunteer’ supporters to do things,” while very artfully saying “Entergy did not pay anyone for their support.” 65 Hammelman never denies “volunteers” were paid. As to a meeting at See ENO Response, exhibit 12. ENO Response at 11. 65 Email exchange between Pollard and Hammelman, March 5, 2018 (emphasis added). 63 64 19 Dave and Busters, Ms. Hammelman suggested that ENO say “I don’t know anything about a meeting….” However, in her private “background” notes to Ms. Pollard, Ms. Hammelman says “[i]t is possible some people gathered [at Dave and Busters] after the hearing….” 66 Similarly, as to non-disclosure agreements, Ms. Hammelman suggests that Entergy deny that Entergy asked anyone to sign such agreements, but never denies that it happened. 67 5. ENO further asserts that Hawthorn’s Chair “confessed that Hawthorn had retained Crowds on Demand without Entergy’s knowledge to work on the NOPS project in violation of the contract” in a call with Entergy General Counsel Marcus Brown. 68 Again, ENO is being disingenuous. In the summary of the interview with Hawthorn Chair, John Ashford, the Report quotes Ashford as saying “Brown never claimed that [Hawthorn] ever breached its contract with Entergy.” 69 ENO also cites the May 9th letter in connection with this discussion, however the May 9th letter makes no “confession,” or even a suggestion, that Hawthorn violated its contract; and WHEREAS, ENO ignored every “red flag” with its inexplicable passivity in reacting to the rising tide of explosive allegations of paid actors, and by its acceptance of useless verbal dodges, which no diligent utility company employing prudent practices would ever accept in a matter of such importance; and WHEREAS, the allegation that a regulated utility would collude with a paid contractor to deceive the regulator on a matter as important and high profile as the NOPS decision is an allegation Email exchange between Pollard and Hammelman, March 5, 2018 (emphasis added). Email exchange between Pollard and Hammelman, March 5, 2018 (emphasis added). 68 ENO Response at 12. 69 Investigators’ Report at 42. 66 67 20 of epic significance, which any prudent utility would immediately investigate thoroughly and overwhelmingly refute if it were not to any degree true; and WHEREAS, ENO’s willful ignorance and near complete inaction are further confirmed by Hawthorn’s Suzanne Hammelman in her interview with the Investigators where she reported that “she and ENO’s Yolanda Pollard did not discuss particulars about supporters being paid or not being paid,” and that “Pollard never expressed shock or dismay” once the allegations surfaced; 70 and WHEREAS, contrary to ENO’s assertion that it did not know that its contractor, Hawthorn, had paid people to appear in support of NOPS at two public meetings, the Council’s Investigators clearly concluded that the “information uncovered to date indicates that Entergy knew or should have known that such conduct occurred or reasonably might occur;” 71 and WHEREAS, the Council need not address whether ENO knew of the improper conduct only whether ENO’s conduct was grossly negligent in allowing the conduct to occur; and WHEREAS, in his October 11, 2018 letter to the Council, Entergy executive Rod West admitted that ENO could have and should have prevented or stopped the improper conduct: Furthermore, even though there are no facts in either our investigation or the one performed by the independent legal team to support the conclusion that Entergy employees “knew” about the hiring of Crowds On Demand (“COD”) or their payments to individuals to show support for the NOPS, we do agree that by providing sufficient oversight and asking the right questions, we could have either prevented the actions of The Hawthorne Group and COD or discovered them and stopped them. In essence, we should have been more diligent and we “should have known.” As we have noted before, we recognize that we are ultimately responsible for the actions of people working on our behalf. We have outlined and continue to implement steps to ensure a situation like this does not happen again. These steps include significant changes in leadership, additional training for employees and 70 71 Investigators’ Report at p. 42. Investigators’ Report at p. 3 (emphasis in original). 21 vendors, specific contract provisions with all our vendors to prohibit this type of behavior and conducting periodic contract assessments to verify compliance, 72 and WHEREAS, the Investigators’ Report cited specific correspondence dated September 18, 2017 between Suzanne Hammelman, of Hawthorn, and Yolanda Pollard, ENO’s Communications Manager, in which Hammelman “discussed the ‘crowd building’” effort where Hammelman stated in bold letters: ‘I would caution you that we generally do not recommend this type of standalone effort and certainly would not suggest doing it more than once.’ Further Hammelman stated: “‘Questions will be asked--who are these people and WHY did they turn out? Who got them here?’” 73 Such language expresses a clear intent to deceive; and WHEREAS, the very next day, in the face of Hammelman’s description of a deceptive process, and her caution about avoiding detection, Charles Rice signed on through Pollard, who emailed Hammelman: “I’ve reviewed this approach with Charles. We’d like to move forward with this plan;” 74 and WHEREAS, on October 3, 2017, Hammelman copied a Crowds on Demand email address in an email to Pollard showing communication with Crowds on Demand; 75 and WHEREAS, On October 3, 2017, ENO’s President and CEO, Charles Rice exchanged email communications with Ms. Pollard as follows, which expresses ENO’s clear intent to pay for “support” of the NOPS plant: Rice (7:58 a.m.): Pollard (8:00 a.m.): Rice (8:01 a.m.): Rice (8:26 a.m.): “How is Hawthorn looking getting people to the hearing.” “They’ve committed to securing 50 people and 10 speakers.” “Hell I would pay for more if they can get them.” “If Hawthorn can get more people I will pay;” 76 and Correspondence from Rod West to all Council Members, October 31, 2018 (emphasis added). Investigators’ Report at p. 4. 74 Investigators’’ Report at p. 10 (emphasis added).. 75 Investigators’ Report at p.11. 76 Investigators’ Report at p. 4-5. The number of “supporters” was increased to 75. 72 73 22 WHEREAS, it is important to note that during the October 16, 2017 public hearing, “multiple speakers listed addresses outside of Orleans Parish, such as River Ridge or Marrero (Jefferson Parish), which will not directly benefit from the proposed power plant;” 77 and WHEREAS, on October 3, 2017 in an email Pollard asked Hammelman: “How do the participants you’re securing answer questions about their support and affiliation, if asked by the media, etc.” To which Hammelman responded: “ [T]he supporters are told to avoid the media to the extent it’s possible….[E]ven the speakers will be told to avoid the media but will be prepared to speak with them if needed. We run our speakers through media practice drills several times prior to the event to make sure they know how to handle and divert;” 78 and WHEREAS, there would be no reason to fear the media and “divert” questions if Hawthorn was just “turning out” legitimate NOPS supporters and not conjuring an artifice with ENO; and WHEREAS, based upon these indisputable facts alone, it is simply not possible that ENO should not have known that certain individuals, wearing orange shirts provided by its contractor, were not legitimate supporters of NOPS who would require a scripted explanation for answering simple questions from the media about who they support and why; and WHEREAS, Mr. West asserts that ENO had no “reason to doubt the veracity of Hawthorn at the time,” 79 and WHEREAS, ENO and its affiliated companies have a long relationship with Hawthorn and its Chair, John Ashford, including a 2014 contract for $2.3 million to work on “solar issues” for Entergy; 80 and Investigators’ Report at p. 5. Investigators’ Report at p. 12 (emphasis added). 79 Correspondence from Rod West to all Council Members, October 31, 2018 (emphasis added). 80 Investigators’ Report at pp. 41-42. 77 78 23 WHEREAS, Entergy, as a major utility company, knew or should have known that Hawthorn has engaged in similar astroturfing tactics previously; and WHEREAS, Hawthorn has a reported history of similar conduct, including in 2009 the questionable use of subcontractors to send fraudulent letters to Members of Congress to oppose a “cap and trade” bill opposed by Hawthorn’s client, the American Coalition for Clean Coal Electricity (ACCCE). In that instance, Hawthorn blamed a subcontractor, who blamed “one rogue temporary employee.” A congressional investigation found that Hawthorn and ACCCE both knew the letters were fraudulent before the House vote, but did not inform the Members until weeks after the vote; 81 and WHEREAS, the most generous explanation of ENO’s engagement of Hawthorn, and participation with Hawthorn, is that ENO was grossly negligent in allowing the deceptive scheme to be concocted and to proceed, which ENO has admitted it could have prevented with “sufficient oversight and asking the right questions;” 82 83 and WHEREAS, it is not reasonable to believe that based on the facts revealed in the Investigator’s Report, even considering the facts as advanced by ENO, that ENO should not have known that Hawthorn “turned out” individuals who were not genuine supporters of NOPS and who were being paid to appear and make misrepresentations to the Council and the public about their endorsement of the NOPS project; and WHEREAS, ENO should have known that Hawthorn and/or Crowds on Demand had paid individuals to speak in favor of NOPS at public hearings conducted by the Council, the record https://www.politico.com/story/2009/10/coal-industry-knew-about-fake-letters-028885 Correspondence from Rod West to all Council Members, October 31, 2018 (emphasis added). 83 “Gross negligence” has been described as an "extreme departure from ordinary care or the want of even scant care." W. Page Keeton, et. al., Prosser & Keeton on the Law of Torts, § 34, at 211 (5th ed. 1984); Citron v. Gentilly Carnival Club, Inc. (La. App., 2015). 81 82 24 clearly shows that just six days after the October 16, 2017 public hearing, ENO and Hawthorn discussed “claims that had surfaced on social media that Entergy had paid people to attend and/or speak on Entergy’s behalf.” 84 ENO admitted that it was alerted to claims being made on social media that people had been paid to support NOPS at the October 16, 2017 public hearing; and WHEREAS, ENO claims that it forwarded two tweets from the social media platform, Twitter, to Hawthorn that claimed that individuals were paid to support NOPS at the October 16, 2017 public hearing and then followed up with one phone call to Hawthorn to inquire about the truthfulness of the allegations. 85 Ms. Pollard’s phone call with Ms. Hammelman was described by Ms. Pollard in the following manner: Q: Well, you brought it up to her in the email, correct? A: I brought it up to her so that she was aware that this was being said, and we did not believe that this was actually part of their effort. Q: What discussion did y’all have, if any, beyond the emails? A: The only discussion that we had was: Here’s what I’m seeing, is this anything that you have discussed with your team? Is this anything that you typically do? And she said no. And she thought that it was – it was not true, and she wasn’t sure where it was coming from; 86 and WHEREAS, it is inconceivable that after becoming aware of potential conduct as extremely troubling and unacceptable as paying individuals to support NOPS, ENO would simply forward two very flimsy emails and have one brief phone conversation with its contractor and conduct absolutely no plausible follow-up to determine the veracity of the allegations even though Ms. Hammelman could only say she “thought” it was not true; and Investigators’ Report at p. 6. ENO Response to Show Cause at p. 10. 86 ENO Response to Show Cause at p. 10 citing Pollard Sworn Statement, attached to ENO’s Response as Exhibit 3, at 105 (emphasis added). 84 85 25 WHEREAS, ENO saw as early as October 3rd that Crowds on Demand was copied on emails concerning Hawthorn’s astroturfing, 87 ENO failed to ask Hawthorn a single question about Crowds on Demand’s role in the NOPS engagement; failed to ask Crowds on Demand whether they paid anyone to speak at the public hearing on October 16, 2017; failed to question Hawthorn about whether Hawthorn had engaged or instructed Crowds on Demand to pay people to appear at the public hearing in support of NOPS; failed to require sworn assurance in writing from both Hawthorn and Crowds on Demand that they had not paid individuals to appear at the public hearing in support of NOPS; and failed to conduct any follow-up investigation whatsoever for the purpose of determining whether Hawthorn or Crowds on Demand had paid people to appear at a public hearing and support NOPS; and WHEREAS, not only did ENO fail to make any reasonably diligent attempt to determine whether people had been paid by Hawthorn or Crowds on Demand to appear at public hearings to support NOPS, the Company doubled down and began making preparations with Hawthorn to get additional paid support for the February 21, 2017 Utility, Cable, Telecommunications & Technology Committee (“UCTTC”) meeting; 88 and WHEREAS, after the February UCTTC meeting, Ms. Pollard emailed Ms. Hammelman stating that she was “surprised that some folks wore the orange shirts again. An opponent wore a marked-up orange shirt and commented about paid supporters.” 89 In response, Ms. Hammelman said, “[w]e wanted to make sure some of the people showed up because that is what would happen organically;” 90 and Investigators’ Report at p. 11 citing (Hawthorn000001). Investigators’ Report at p. 6. 89 Investigators’ Report at p. 7. 90 Investigators’ Report at p. 7. 87 88 26 WHEREAS, the Company was again made aware of allegations of “paid supporters” coupled with Hawthorn’s revealing characterization that nominal supporters appearing at the February UCTTC meeting is what would occur “organically,” which were again, clear indications to ENO that the support generated by Hawthorn and Crowds on Demand was artificial and contrived; and WHEREAS, on April 27, 2018, after both public meetings had occurred, and after the lawsuit alleging the use of paid actors had been filed, ENO deleted from the Hawthorn contract the phrase “[t]alk point and testimony will be vetted,” with the obvious intention of attempting to remove ENO from the process, after the fact 91 and WHEREAS, during the investigation no text messages involving Charles Rice were provided to the Investigators for any date after January 11, 2018, and no text messages from Rice’s cellular telephone were provided, except for a single message received by Rice in September 2018; 92 and WHEREAS, during the interview of Gary Huntley, Entergy’s attorneys instructed Huntley not to answer any questions beyond the October and February meetings claiming such questions were beyond the scope of the Investigation; 93 and WHEREAS, Huntley claimed that although he texted Entergy colleagues about this “hot topic” at work, he did not possess a single one of those text messages, despite the “preservation of evidence” letter sent to ENO by the Council on May 15, 2018; 94 and Investigators’ Report at p. 19. Investigators’ Report at p. 18. 93 Investigators’ Report at p. 26. 94 Investigators’ Report at p. 27 91 92 27 WHEREAS, Entergy undertook a flurry of activity between May 1st and May 7th as evidenced by its privilege log, Entergy refused to produce those communications and records, as well as others claimed to be privileged; 95 and WHEREAS, although ENO takes issue with New Orleans City Code Section 158-52 regarding penalties for false or misleading representations, particularly the standard of gross negligence cited in that Section, the definition of gross negligence is simple and easily understood-an “extreme departure from ordinary care or the want of even scant care”; 96 and WHEREAS, the Council finds that ENO’s response and reaction to these extremely serious claims was completely inadequate and grossly negligent. Further, despite numerous communications and repeated allegations that should have served as “red flags” for anyone, especially personnel at the highest levels of ENO management who knew an astroturfing team had been hired by ENO, the Company failed to conduct any meaningful investigation to determine whether the allegations had merit; and WHEREAS, even assuming ENO did not know about Crowds on Demand and the paid supporters program, a modicum of diligence would have discovered the actual facts very shortly after the October 16th meeting in time to ameliorate the harm; and WHEREAS, instead, after receiving evasive, dismissive, flimsy and deflective responses from Hawthorn to the scarce, weak and inchoate queries from ENO, the Company chose to engage in willful ignorance and ignore the issue until the media, the public, the Council, and the Advisors had presented overwhelming evidence that people had been paid to appear at public hearings to present intentionally deceptive support for NOPS; and 95 96 Investigators’ Report at p. 20 See also definitions and case citations at note 63, supra. 28 THE INVESTIGATORS’ REPORT DID NOT STATE THAT NO COUNCIL RULES, ORDINANCES OR CHARTER PROVISIONS WERE VIOLATED WHEREAS, ENO’s Response erroneously states that the Investigators’ concluded that ENO did not violate any law or Council rules, 97 the Investigators’ report makes no such declaration. The Report states that “there are no specific Council rules that prohibit this practice” referring to whether a party or group may pay people to attend and/or speak at a meeting or hearing. 98 The Investigators did not opine, nor were they asked to opine, on whether ENO, or its subcontractors, made misrepresentations to the Council that would constitute violations of other Council rules or Code provisions; and WHEREAS, ENO’s grossly inadequate attempts to ascertain the truth about the actions of its contractor clearly rise to the level of gross negligence, especially in light of the fact that only ENO knew that it had engaged Hawthorn to “turn out” specific numbers of supporters to deliver specifically crafted false messages with the expressed goal of misleading the Council, its regulator, to believe that the “supporters” were acting sincerely and on their own accord; and WHEREAS, there is no evidence, even in ENO’s Response, that ENO required Hawthorn to only recruit and confirm “legitimate supporters” that were motivated by actual support and not money; and WHEREAS, any reasonable entity properly motivated to present only facts to the Council would have reacted swiftly to ameliorate the deception in the face of sufficiently credible evidence that people had in fact been paid to appear to support NOPS, instead ENO waited months to take any reasonably diligent action; and 97 98 ENO Response to Show Cause at 2. Investigators’ report at p. 50. 29 WHEREAS, the Council finds that, contrary to arguments made by ENO, Section 158-52 of the City Code is fully applicable to this case. ENO narrowly interprets the Code provision to only apply to misleading representations of fact in proceedings involving the setting of rates and not to public hearings conducted by the Council. The Company also argues that the paid speakers merely provided unsworn public comments and therefore those comments are outside of the scope of the plain language contained in Section 158-52. In fact, the Code makes no distinction between misrepresentations that are made in sworn testimony and those that are unsworn at the Council’s public hearings or committee meetings. Section 158-52 specifically states that misleading representations of fact shall not be made in any “application or filing made under this article or in any proceeding, rate case, or other matter commenced by an application or filing under this article;” 99 and WHEREAS, ENO’s original NOPS application and its supplemental application both request determinations and approvals from the Council for recovery of the Company’s prudentlyincurred costs associated with the project, including the retail non-fuel revenue requirement and the related energy costs and expenses, from customers through rates; 100 and WHEREAS, ENO cannot reasonably assert that the NOPS proceeding, wherein ENO has requested recovery costs exceeding $210 million, is not a utility rate proceeding; and WHEREAS, it is also critically important to point out that the Council, in adopting Resolution R-17-426, specifically required ENO to conduct a minimum of 5 public outreach meetings, one in each Council district, for the purpose of sharing information with, and answering questions from, the public related to the proposed projects. 101 In addition to the 5 public outreach Code of the City of New Orleans, Section 158-52 (emphasis added). Supplemental and Amending Application of Entergy New Orleans, Inc. for Approval to Construct New Orleans Power Station and Request for Cost Recovery and Timely Relief dated July 6, 2017 at p. 27. 101 Council Resolution R-17-426 dated August 10, 2017 at p. 17. 99 100 30 meetings, the Council also required a public hearing in the Council Chambers for the purpose of receiving additional public comment related to the projects. 102 The October 16, 2017 public hearing was, in fact, conducted pursuant to the Council’s specific requirement outlined in Resolution R-17-426 for the sole purpose of providing information to the Council regarding ENO’s proposal; and WHEREAS, in light of the Council’s specific requirement to conduct a public hearing on ENO’s NOPS proposal, the Company, a regulated utility providing critical electrical service to the entire City of New Orleans, had a clear legal, regulatory and ethical obligation to allow the members of the public not parties of record to the case to provide their honest, uncompensated and non-deceptive expressions of support or opposition to the Council. However, ENO instead hired Hawthorne in an attempt to fill a specific number of seats in the room and prevent members of the public from having an opportunity to be heard; and WHEREAS, the Council finds that ENO breached the Council’s trust and violated the City’s Home Rule Charter and the New Orleans City Code as detailed herein and in Resolution R18-474. ENO’s broad mischaracterization of the Investigators’ conclusions regarding whether any laws or Council rules were violated are rejected; and THE COUNCIL HAS EXPRESS AUTHORITY TO IMPOSE PENALTIES ON PUBLIC UTILITIES WITHIN ITS JURISDICTION, INCLUDING ENO WHEREAS, the New Orleans City Council is the legislative branch of local government and has the power to enact ordinances to protect the public health, safety, and welfare of the citizens of New Orleans. 103 The Council of the City of New Orleans is vested with the sole legal Council Resolution R-17-426 dated August 10, 2017 at p. 18. Gordon v. Council of City of New Orleans, 2005-1381 (La. App. 4 Cir. 2/25/08), 977 So. 2d 212, 242–43, writ granted, 2008-0929 (La. 10/24/08), 8 So. 3d 563, and writ granted, 2008-0932 (La. 10/24/08), 8 So. 3d 563, and writ granted, 2008-1226 (La. 10/24/08), 8 So. 3d 564, and writ granted, 2008-1240 (La. 10/24/08), 8 So. 3d 564, and rev'd in part, 2008-0929 (La. 4/3/09), 9 So. 3d 63. 102 103 31 authority to regulate the rates charged by companies furnishing utility services in the city of New Orleans. 104 The Council is also vested with the powers of supervision, regulation and control over ENO. 105 The City Council’s power is conferred by the Home Rule Charter and the Code of the City of New Orleans. A regulator’s jurisdiction over public utilities in this state has been labeled by the Louisiana Supreme Court as “plenary,” 106 and the Council is entitled to deference in its interpretation of its own rules and regulations; 107 and WHEREAS, specifically, with respect to regulatory authority, Article III, Section 3-130 (1) of the Charter provides: The Council of the City of New Orleans shall have all powers of supervision, regulation, and control consistent with the maximum permissible exercise of the City's home rule authority and the Constitution of the State of Louisiana and shall be subject to all constitutional restrictions over any street railroad, electric, gas, heat, power, waterworks, and other public utility providing service within the City of New Orleans including, but not limited to the New Orleans Public Service, Inc., and the Louisiana Power and Light Company, their successors or assigns. (Emphasis added). Section 3-130 (7) states; The orders of the Council shall be enforced by the imposition of such reasonable penalties as the Council may provide, and any party in interest may appeal from orders of the Council to the Civil District Court for the Parish of Orleans by filing suit against the Council within thirty (30) days from the date of the order of the Council, and not thereafter (emphasis added); and WHEREAS, this Charter provision clearly empowers the Council to impose reasonable penalties on all regulated utilities operating in the City and, contrary to ENO’s characterization of the Council’s authority, the language is clear and unambiguous; and Id. at 242, citing State ex rel. Guste v. Council of City of New Orleans, 309 So.2d 290, 294 (La.1975). Home Rule Charter of the City of New Orleans section 3-130, et seq. 106 Entergy Louisiana, LLC v. Louisiana Pub. Serv. Comm'n, 2008-0284 (La. 7/1/08), 990 So. 2d 716, 723. 107 Gordon v. Council of City of New Orleans, 2008-0929 (La. 4/3/09), 9 So. 3d 63, 72. 104 105 32 WHEREAS, as stated in Resolution R-18-474, Code Section 158-52 also allows for the imposition of penalties upon anyone who intentionally or through gross negligence makes or causes false or misleading representations of fact in any utility rate-related proceeding before the Council; 108 and WHEREAS, the Charter and City Code unequivocally authorize the imposition of penalties upon ENO for its actions and inaction related to paid individuals who deceptively supported NOPS, deceiving the general public and the Council at a public hearing and UCTTC meeting conducted pursuant to the Code and applicable Council resolutions; and WHEREAS, the authority of public utility regulatory bodies to impose penalties upon utilities within its regulatory jurisdiction has been recognized by other courts in similar circumstances; and WHEREAS, a California appellate court has ruled that the state Public Utilities Commission (PUC) did not exceed its regulatory jurisdiction in sanctioning a wireless telecommunications carrier for unjust and unreasonable practices; 109 and WHEREAS, the PUC imposed a multimillion dollar fine against a wireless telephone service provider for two interrelated unjust and unreasonable practices: charging its customers early termination fees (“ETF”) to cancel contract without permitting grace period, and failing to disclose to customers known network problems and misleading customers regarding network’s coverage and service. Cingular argued the Commission lacked jurisdiction to impose a penalty; and WHEREAS, the court explained that “the courts of this state have held that the powers of the Commission within its province are broad. As our Supreme Court has explained: ‘The 108 109 Code of the City of New Orleans, Section 158-52. Pacific Bell Wireless, LLC v. Public Utilities Com., 140 Cal.App.4th 718 (2006). 33 commission is a state agency of constitutional origin with far-reaching duties, functions and powers….[t]he Constitution confers broad authority on the commission to regulate utilities, including the power to fix rates, establish rules, hold various types of hearings, award reparation, and establish its own procedures.’” 110 The court further confirmed that the PUC had “broad authority to levy fines and penalties on public utilities” 111; and WHEREAS, with respect to ENO’s argument that the Council’s imposition of penalties violates the Company’s Due Process rights because ENO did not receive notice of a prohibition on the conduct (paid individuals deceptively supporting NOPS) or the penalties that could result from such behavior; 112 and WHEREAS, the Council rejects this argument as well. On numerous occasions as early as October 3, 2017, and clearly after the October 16, 2017 public hearing, through social media and other means, ENO was made aware of credible allegations regarding paid individuals deceptively and fraudulently supporting NOPS at the hearing and yet the Company made no meaningful attempt to determine whether the allegations were true in order to ameliorate harm and to prevent the conduct from recurring; and WHEREAS, upon ENO being alerted to these credible allegations, the Company received the requisite knowledge and notice that it could be subjected to penalties for making false or misleading representations to the Council as provided in the Code and Charter; and WHEREAS, the Pacific Bell court made a similar finding and rejected Cingular’s argument that it had not received notice of a potential violation of the PUC’s order; 113 and Id. at 736. Id. at 737. 112 ENO Response to Show Cause at p. 26. 113 Pacific Bell Wireless, LLC v. Public Utilities Com., 140 Cal.App.4th at 740. 110 111 34 WHEREAS, Cingular, just as ENO has claimed in this matter, argued that the Commission order that it had been charged with violating was so broad that Cingular could not anticipate that its actions violated the regulator’s rules. 114 The court concluded that [e]ven in the absence of a specific statute, rule, or order barring the imposition of an ETF without a grace period, or barring the specific nondisclosures identified by the Commission in this case, Cingular can be charged with knowing its actions violated” the requirement that it provide “adequate, efficient, just, and reasonable service” to its customers; 115 and WHEREAS, the Council concludes that ENO had sufficient notice that the deceptive conduct consisting of paying individuals to feign support for NOPS at a Council hearing and UCTTC meeting could reasonably lead to penalties pursuant to existing City Code and Charter provisions; and WHEREAS, the Council finds that ENO is incorrect that City Code Section 158-52 limits a penalty for misleading the Council to the fine for a misdemeanor because the section that penalizes such conduct says such conduct “shall be unlawful and a misdemeanor…” (emphasis added). The violation triggers two bases for imposing a penalty: unlawfulness and a misdemeanor, which are disjunctive, either of which would support the penalty; and WHEREAS, ENO incorrectly cites City Code section 1-13 as a limitation on penalties to $300.00 for violations of ordinances and code provisions, the Council’s regulatory authority, including its authority to impose penalties, emanates from the City’s Home Rule Charter, 116 which is not limited by the general provisions of Section 1-13; and Id. Pacific Bell Wireless, LLC v. Public Utilities Com., 140 Cal.App.4th at 740. 116 Home Rule Charter of the City of New Orleans, Section 3-130 (7). 114 115 35 ENO’S ACTIONS AND/OR INACTION ARE NOT PROTECTED BY THE FIRST AMENDMENT WHEREAS, ENO audaciously claims that the Council’s imposition of penalties on the Company for paying people to deceive the Council by lying to the Council, violates ENO’s First Amendment rights to free speech; and WHEREAS, it is ironic that ENO has steadfastly attempted to distance itself from the actions of its contractor and claim that it did not pay or direct people to provide false support for its NOPS proposal at Council hearings, but now conveniently claims First Amendment protection for public statements made by those same individuals; and WHEREAS, this Council recognizes that certain speech is afforded First Amendment protection. However, as there is “no constitutional value in false statements of fact; neither the intentional lie nor the careless error materially advances society's interest in ‘uninhibited, robust, and wide-open’ debate on public issues;” 117 and WHEREAS, commercial speech is afforded less protection than non-commercial speech and “[u]ntruthful speech, commercial or otherwise, has never been protected for its own sake;” 118 and WHEREAS, the United States Supreme Court has stated that commercial speech is speech that proposes a commercial transaction, 119 in addition, commercial speech that is false or misleading is not entitled to First Amendment protection and “may be prohibited entirely;” 120 and WHEREAS, in this matter, the penalty imposed by the Council punishes ENO for the misleading and deceitful practice of providing people who were paid to feign their support for the Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789. Va. Pharmacy Bd. v. Va. Consumer Council, (1976) 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346. 119 Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 106 S. Ct. 2968, 2976, 92 L. Ed. 2d 266 (1986). 120 In re R.M.J., (1982) 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64. 117 118 36 NOPS proposal, with the clear intent to deceive. The penalty is also calculated to deter such conduct before the Council. ENO, a regulated monopoly public utility subject to ordinances, rules and orders of the Council governing the provision of electric and gas service in the City of New Orleans, simply cannot mislead and deceive the City Council, directly or indirectly, and expect the First Amendment will allow it to escape responsibility; and WHEREAS, such illogical positions taken by ENO are not only unsupported and unlawful, but also harmful to its customers and not in the public interest; and WHEREAS, even assuming that ENO had a right to First Amendment protection in these circumstances, which it does not, the Company mistakes the Council’s penalty as a suppression of speech. The penalty imposed punishes the regulated utility, not the speaker, for violating one of the most basic tenants of interacting with its regulator--a requirement of honest representations of fact in matters of utility regulation; and WHEREAS, given that the express purpose of the October 16, 2017 hearing, held under Section 158-431(b) was to allow members of the public at large who are not parties of record to be heard, and that individuals were instead paid to speak at that hearing on behalf of ENO, a party of record to the case, who had multiple other opportunities to express its opinion to the Council in the procedural schedule, and that the record shows that whether or not ENO knew the speakers were paid, ENO deliberately attempted to pay to have seats filled with its supporters at that hearing to prevent members of the public at large who opposed its proposal from having an opportunity to speak, ENO’s argument that its First Amendment rights are being infringed upon is disingenuous at best; and THE COUNCIL’S PENALTIES IMPOSED IN THIS PROCEEDING ARE REASONABLE AND DO NOT VIOLATE THE EIGHTH AMENDMENT TO THE U. S. CONSTITUTION 37 WHEREAS, with respect to ENO’s argument that the penalties imposed by the Council in this case are excessive and therefore violate the Eighth Amendment to the United States Constitution, the Home Rule Charter and the City Code expressly authorize fines and other nonmonetary, penalties as a consequence for ENO’s egregious actions or inaction in the NOPS proceeding; and WHEREAS, specifically, Charter Section 3-130 (7) clearly states; The orders of the Council shall be enforced by the imposition of such reasonable penalties as the Council may provide, and any party in interest may appeal from orders of the Council to the Civil District Court for the Parish of Orleans by filing suit against the Council within thirty (30) days from the date of the order of the Council, and not thereafter; 121 and WHEREAS, Section 158-52 of the City Code also unequivocally prohibits the conduct at issue in this proceeding and specifically provides; It shall be unlawful and a misdemeanor for any person to intentionally or through gross negligence to make or to cause to be made any false or misleading representations of fact in any application or filing made under this article or in any proceeding, rate case, or other matter commenced by an application or filing under this article; 122 and WHEREAS, contrary to ENO’s self-serving argument attempting to either dismiss or limit the Council’s regulatory authority, the Charter grants the Council the exact authority that ENO claims does not exist; and WHEREAS, the express language of the Charter allows the Council to impose “reasonable penalties as the Council may provide;” and 121 122 Home Rule Charter of the City of New Orleans, Article III, Section 1-130(7). New Orleans City Code Section 158-52. 38 WHEREAS, contrary to ENO’s position, nothing in the City Charter or the City Code require the Council to employ any specific calculation, formula or other financial analysis in order to impose reasonable penalties; and WHEREAS, as the United States Supreme Court has decided, “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish;” 123 and WHEREAS, the courts have also concluded that “a penalty that bears a significant relationship to the seriousness of the offense and is in the lowest quintile of the available range easily satisfies the proportionality test;” 124 and WHEREAS, ENO relies heavily on BMW of North America, Inc. v. Gore 125 which does not support ENO’s position and is inapposite to the facts of this case. BMW is a tort case where the Court reviewed the level of punitive damages awarded by a jury against BMW for failure to disclose certain safety details regarding repairs that had been made to the automobile prior to selling it to the customer. The jury awarded the plaintiff $4,000 in compensatory damages and $4 million in punitive damages. Without support ENO argues that the Court employed a universal rule requiring the application of three guideposts to determine whether damages are excessive. These guideposts have nothing to do with the regulatory authority of a utility regulator to impose regulatory penalties. Nonetheless, the three guideposts include (1) the degree of reprehensibility of the conduct, (2) the ratio of actual harm inflicted on the plaintiff, and (3) the difference between the remedy imposed and the civil penalties authorized in comparable cases; 126 and Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028. Roche v. Evans, 249 F. Supp. 2d 47, 59 (D. Mass. 2003). 125 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). 126 Id. at 574-575. 123 124 39 WHEREAS, even if the Court intended that these three guideposts be utilized to examine regulatory penalties, which clearly is not what is intended by BMW, the application of BMW to ENO’s reprehensible conduct would support the Council’s broad discretion in imposing penalties in this case; and WHEREAS, ENO fails to point out that the BMW Court very clearly stated that “the most important indicium of the reasonableness of a punitive damage award is the degree of reprehensibility” of the offender’s conduct. 127 Similarly, “trickery and deceit” are “more reprehensible than negligence;” 128 and WHEREAS, the Council finds that ENO’s conduct in this matter is particularly reprehensible and is easily characterized as an attempt to trick and deceive the Council and the public into believing that certain public supporters for NOPS were in fact genuine supporters, as opposed to paid and indifferent operatives generated by ENO and its contractor to mislead the Council and the public; and WHEREAS, with respect to the second guidepost, the disparity between the harm suffered and the penalty imposed, ENO’s conduct has caused indefensible damage to the Council’s regulatory process and to the decades of goodwill with the public that has supported that process. ENO’s conduct has also severely damaged ENO’s relationship with its regulator, the Council, and the general public, which is an impediment to the effective exercise of the Council’s regulatory authority. One of the most basic tenets of the regulatory paradigm is the fundamental characteristics of trust and candor in the utility’s interactions with its regulator, its customers and the general public. In this instance, the Council finds that ENO has failed to uphold those basic but critical characteristics by its action and/or inaction in this case; and 127 128 BMW of North America, Inc. v. Gore, 517 U.S. 577 (1996). Id. at 1599. 40 WHEREAS, the penalty imposed by the Council is indisputably reasonable and is based upon ENO’s substantial revenues and profits. It is vital to the regulatory process that any sanctions for improper conduct not simply become a “cost of doing business,” but are actual penalties suited to the offense, and an effective deterrent that would dissuade the utility from even considering engaging in bad conduct in the future; and WHEREAS, the third guidepost utilized by BMW, the difference between the penalty imposed and those authorized in other comparable cases, also supports the Council’s remedies in this case; and WHEREAS, as this Council stated in Resolution R-18-474, the Massachusetts Department of Public Utilities imposed a $24.8 million penalty on a group of the state’s utilities for their poor preparation for and response to Hurricanes Irene and Sandy. Similarly, the Federal Energy Regulatory Commission (“FERC “) has the authority to punish an entity for “willingly and knowingly” reporting false information in connection with the sale of natural gas or electricity, which penalties can total up to $1 million per day; and WHEREAS, it is clear that utility regulators around the country and on the federal level recognize the critical importance of using significant penalties to sanction and deter bad conduct by utilities, which can have such far-reaching and potentially devastating impact on customers and communities; and WHEREAS, this Council finds that even if BMW is applicable to this case, the Court’s third guidepost is met and the Council’s penalties imposed on ENO are consistent with the level of penalties either authorized or imposed in comparable cases; and 41 WHEREAS, the non-monetary penalties imposed by the Council are clearly within the Council’s regulatory authority and are directly related to the improper conduct that is being sanctioned; and WHEREAS, the Council rejects ENO’s argument that the penalties issued by the Council are excessive and violate the Eighth Amendment. The behavior at issue is particularly reprehensible and the Council finds that the penalties imposed are proper in order to punish ENO for its past conduct and deter future attempts to mislead or deceive its regulator and its customers; NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF NEW ORLEANS THAT: The Council hereby directs the following: 1. ENO’s Response and all documents attached to ENO’s Response are hereby admitted as part of the investigation record and Report; The Council hereby finds the following: 1. ENO had ample information to determine that its contractor intended to and did pay individuals to falsely express support for the NOPS plant and was grossly negligent in not preventing or stopping the conduct; 2. ENO was grossly negligent in not taking any precautions to protect against such payments being made; 3. ENO was grossly negligent in failing to exercise prudent utility practices in contracting with Hawthorn and in preventing improper conduct. 4. ENO was grossly negligent in how it contracted with Hawthorn; 5. ENO was grossly negligent in its lack of diligence in a timely fashion investigating, allegations of the use of paid “supporters” to mislead the Council; 42 6. ENO knew or should have known that individuals, including actors were to be paid and, in fact, were paid to falsely support NOPS before the Council in two public meetings; The Council hereby directs ENO to: 1. Make a one-time cash payment of $5 million to be paid in accordance with and for purposes determined by the Council; 2. Within 60 days of the adoption of this resolution by the Council, certify that each ENO management level employee has or will complete a third-party ethics training course; 3. Within 90 days of the adoption of this resolution by the Council, submit for Council approval an ENO Code of Conduct, developed with special emphasis on its dealings with and before the Council, which includes credible oversight and enforcement provisions specifically designed to avoid a repeat of the glaring breaches of ENO’s existing Entergy Values and Ethics Statement; 4. All costs associated with the Investigation incurred by ENO, including monetary penalties and costs of complying with non-monetary penalties, shall continue to be disallowed for recovery from ratepayers pursuant to Code of the City of New Orleans, Section158-582 and Section 158-626. 5. All costs incurred by the Council in connection with any and all aspects of the Investigation shall continue to be reimbursed to the Council and shall be disallowed for recovery from ratepayers pursuant to Code of the City of New Orleans, Section158-582 and Section 158-626. 43 6. All costs incurred by the utility Advisors in connection with any and all aspects of the Investigation, including, but not limited to, monitoring penalties and sanctions shall continue to be billed and reimbursed as usual, however these payments will not be recoverable from ratepayers and they shall be outside of and in addition to the Advisors’ contract budgets, subject to normal Council review and oversight. 7. Shall exclude all costs and penalties associated with this resolution, as well as their related regulatory ratemaking effects, from prospective rate action filings and clearly demonstrate the methodology by which such have been excluded. 8. All other directives and provisions included in Resolution R-18-474 shall remain in full force and effect. THE FOREGOING RESOLUTION WAS READ IN FULL, THE ROLL WAS CALLED ON THE ADOPTION THEREOF, AND RESULTED AS FOLLOWS: YEAS: NAYS: ABSENT: AND THE RESOLUTION WAS ADOPTED 44 Out-of-State Court Cases City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 KeyCite Yellow Flag - Negative Treatment Distinguished by Community And Labor United For Baltimore Charter Committee (CLUB) v. Baltimore City Board Of Elections, Md., September 15, 2003 287 Md. 56 Court of Appeals of Maryland. CITY OF NEW CARROLLTON v. James W. ROGERS et al. No. 33. Feb. 8, 1980. Synopsis Number of property owners affected by city’s proposal to annex sued the city, mayor and city council seeking declaratory and injunctive relief and alleging that annexation was the result of secret meetings in violation of Sunshine Act. The Circuit Court, Prince George’s County, Perry G. Bowen, Jr., J., found that meetings were held in violation of the Act, and defendants appealed. The Court of Appeals, Murphy, C. J., held that city council did not violate Act in conducting meetings pertaining to possible annexation as public was sufficiently notified of meetings and meetings were sufficiently open. Order vacated and case remanded. Attorneys and Law Firms **1071 *58 John R. Foran, College Park (Horowitz, Oneglia, Goldstein, Foran & Parker, P. A., College Park, on the brief), for appellant. Edward C. Gibbs, Jr. and Russell W. Shipley, Upper Marlboro (Shipley, Knight, Manzi & Zanecki, Upper Marlboro, on the brief), for appellees. Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH,* COLE and DAVIDSON, JJ. Opinion MURPHY, Chief Judge. Chapter 863 of the Acts of 1977, now codified as Maryland Code (1957, 1975 Repl. Vol., 1979 Cum. Supp.), Art. 76A, ss 7-15, and commonly known as the Sunshine Law (the Act), requires that meetings of public bodies, with designated exceptions, be open to the public. The principal issue in this case is whether the Council of the City of New Carrollton (the City Council) violated the Act in conducting certain meetings pertaining to the possible annexation of areas adjoining the city known as the Metro East Triangle (MET) and West Lanham Hills. (1) Codified under the subtitle “Meetings of Public Bodies,” the Act provides in s 7 that “(i)t is essential to the maintenance of a democratic society that except in special and appropriate circumstances public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.” The Act applies only to public bodies “exercising **1072 *59 legislative, quasi-legislative or advisory functions.”1 s 9. By the express provisions of s 9, the Act does not apply to “a public body when exercising executive, judicial or quasi-judicial functions.” A “Public body ” is defined by the Act, s 8(g), to include the legislative body of a municipality. Section 10 requires that “meetings of every public body shall be open to the public,” unless they are authorized to be closed as within enumerated exceptions contained in s 11. A “Meeting ” is defined in s 8(f) to mean: “the convening of a quorum of the constituent membership of a public body for the purpose of considering or transacting public business. It does not include chance encounters, social gatherings, or other occasions which are not designed or intended for the purpose of circumventing the provisions of this subtitle.” *60 Section 12 requires that a public body “give reasonable advance notice of its open meetings.” In this regard, the section provides that “(w)henever reasonable under all the circumstances,” the notice be in writing and include the date, time and place of the meeting. Section 12(c)(3) provides that the required notice may be given by posting at a convenient public location at or near the place of the meeting, “if prior public notice has been given that this method will be © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 used.” Section 13 requires every public body subject to the Act to keep written minutes of all its meetings, reflecting the items considered and the actions taken, together with any recorded vote. The section provides that the minutes “shall be prepared as soon as practicable under the circumstances,” and designates them as public records, open to public inspection. Section 14 provides that any person “adversely affected” by an action in violation of s 10 (requiring that meetings be open to the public) and s 12 (requiring that public notice be given) may file suit to compel compliance “with the provisions of these sections, determining the applicability of these sections, or voiding the action.” Section 14(c) creates a presumption “that the public body did not violate ss 10 or 12”; it also provides that “the burden of proving a violation is on the complainant.” Section 14(e) authorizes the court to issue an injunction “to determine the applicability of this subtitle to the discussions or decisions of public bodies, or to grant such other relief as may be appropriate.” Section 14(e)(2) authorizes the court to “declare void any final action taken at a meeting held in wilful violation of ss 10 or 12 . . . if the court finds that no other remedy would be adequate under the circumstances.” (2) On October 2, 1978, a number of property owners affected by New Carrollton’s proposal to annex the MET and West Lanham Hills sued the City, the Mayor and the City Council, seeking declaratory and injunctive **1073 relief. They alleged that beginning at a time prior to August 16, 1978 the date upon which they claimed that the annexation proposal was first *61 divulged to the public the Mayor and City Council “secretly embarked” upon a “positive scheme,” consummated by closed meetings held in violation of the Act, to bring about the desired annexation. As a consequence of these “secret meetings,” the complainants asserted that they were denied the opportunity to participate in the functioning of government, and to voice their opinions regarding the annexation process when it was in its formative stages. In view of the alleged violations of the Act’s provisions, the complainants prayed that the “actions taken by the Mayor and City Council at all closed meetings dealing with the issue of annexation” be declared void and that an injunction be issued prohibiting the defendants from going forward with the annexation process. The defendants, answering the suit, denied that the City Council and Mayor met in secret sessions in connection with the annexation proposal. They claimed that the challenged meetings of the Council were open to the public and were preceded by public notice, as required by the Act. In addition, the defendants asserted that minutes of the meetings were taken and made available for public inspection. On October 4, 1978, two days after the plaintiffs had filed their suit, a resolution of annexation was introduced in the City Council to annex the MET, West Lanham Hills, and other designated areas adjoining the City’s boundaries. The resolution recited that, as required by Maryland Code (1957, 1973 Repl. Vol.) Art. 23A, s 19, consent for the annexation had been obtained from not less than 25% Of the registered voters residing in the areas to be annexed, as well as from the owners of not less than 25% Of the assessed valuation of the real property located in the areas to be annexed. As required by s 19, the City Council, on November 21, 1978, held a public hearing on the resolution, adopting it thereafter on January 3, 1979. On February 7, 1979, a petition was presented to the Council to hold a referendum on the resolution, as authorized by s 19 of Art. 23A. On February 13, 1979, in accordance with the provisions of s 19, the Council provided for a referendum to be held on March 17, 1979, thereby suspending the effectiveness of the resolution pending the results of the referendum election. *62 On March 5 and 6, 1979, the Circuit Court for Prince George’s County (Bowen, J.) conducted an extensive evidentiary hearing into the merits of the plaintiffs’ action. Evidence was adduced showing that in late 1977 the City’s Advisory Planning Committee (APC), an executive-branch agency established within the Mayor’s office, was requested to study the annexation of areas adjoining New Carrollton. The APC met on December 8, 1977, January 12, February 9 and March 9, 1978, and discussed various annexation proposals. One of the proposals discussed was the annexation of the MET, a valuable tract of commercial and industrial properties adjoining New Carrollton’s boundaries. The APC meetings were open to the public, and minutes taken at these meetings disclosed in a general way that annexation proposals were discussed. Neither the City Council nor any of its members attended these meetings. On March 16, 1978, a “Special Workshop” meeting of the City Council was convened at the request of the Mayor for the purpose of considering the subject of annexation. Notice of the meeting was posted on the bulletin board at City Hall. It stated: “The City Council will meet in a Workshop Session at 7:30 P.M. on Thursday, March 16, 1978, at City Hall. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 The following topic will be discussed: I. Annexation proposal.“ The meeting was attended by a quorum of the City Council, the Mayor, his administrative officer, and members of the West Lanham Hills Citizens Association (WLHCA), who had been invited to attend the meeting. The minutes of the meeting disclosed that the APC annexation study was discussed, together with various aspects and implications of the annexation process. **1074 Specific reference was made in the minutes to “the possible annexation of West Lanham Hills and the Metro Triangle.” The minutes also indicated that the President of WLHCA stated that he looked with favor upon such an annexation proposal and would discuss it with his Board of Directors. *63 The City Council held another “Special Workshop” meeting on March 23, 1978 at City Hall. Public notice of the date, time and place of this meeting was posted on the bulletin board at City Hall; it was identical in format to the notice posted for the March 16 meeting. As before, the notice announced that the topic to be discussed at the meeting was “Annexation proposal.” A quorum of the City Council was present, together with the Mayor, his administrative officer, and invited officers and directors of WLHCA. Minutes taken at the meeting reflected that WLHCA had voted on March 19 in favor of the annexation and “requested the City Council to proceed with the necessary procedures.” The posting of public notice of the Council’s meetings of March 16 and 23, 1978 on the bulletin board at City Hall was in accordance with s 12(c) of the Act, which authorized this method of giving notice “if prior public notice has been given that this method will be used.” Consistent with this requirement, the City, on July 28, 1977, in two county newspapers, had given “Public Notice” that pursuant to the requirements of the Act, “notice of scheduled meetings of the City Council, special and workshop sessions, and meetings of citizen advisory committees will be posted in a timely manner on the first floor bulletin board in City Hall, 8511 Legation Road, New Carrollton, Maryland.”2 Following the Council’s workshop meeting of March 23, the City Attorney was directed to obtain a survey of the areas to be annexed an essential step where annexation is to be initiated by resolution of the legislative body.3 Pending receipt of the completed survey, the APC continued its study of annexation in open meetings held in April and May of 1978. The public minutes of these meetings indicate that the APC *64 recommended that a flyer be prepared as soon as possible to advise the citizenry of the benefits and implications of annexation, together with a “fact sheet” outlining the finances and costs of the annexation process. The minutes took note of the fact that a survey of the areas to be annexed had been ordered. The survey was completed on June 21 at a cost of $8,000. The Council met that month and amended the existing City budget item for “legal expenses” to make funds available to pay the expense of the survey. Questioned by a citizen with respect to the nature of the increased legal expenses, the Council explained that it was due to a “positive ongoing action” and that it was not then advisable to give further information on the subject. At a workshop meeting of the Council held on July 31, for which public notice was duly given, the Council suggested, according to the minutes of the meeting, that as soon as possible “an informational forum for residents of the City (be arranged) to explain the annexation proposal under consideration.” On August 5, the City prepared and distributed a flyer to the homes of New Carrollton’s residents, announcing that a special informational meeting would be held by the Mayor and City Council on August 8 at City Hall “to present a proposal to annex the New Carrollton (METRO) Triangle and adjacent areas into the City of New Carrollton.” Accompanying the flyer was a “fact sheet” outlining the demographics of the areas under consideration. **1075 All residents were urged by the flyer to attend the meeting. On August 7, 1978, at the invitation of the WLHCA, the Mayor and members of the City Council attended a meeting in West Lanham Hills for the purpose of answering questions that the residents might have about New Carrollton. No notice of this meeting was posted on the bulletin board at City Hall. On August 8, the Council held the “informational meeting” which it had previously scheduled to inform New Carrollton residents about the annexation proposal. On August 16, 1978, the Council discussed the annexation proposal at a regularly scheduled meeting, for which public notice was given. *65 Joseph Aukward and James Rogers, two of the plaintiffs, testified in support of their allegations that the Council had conducted its annexation business in secret meetings, closed to the public, in violation of ss 10 and 12 of the Act. Aukward said that on every occasion that he attempted to attend Council workshop meetings, the doors to City Hall were locked. This, he said, was in contrast to the Council’s regular meetings, which were always open to the public. Aukward’s testimony was specific only as it related to workshop meetings held at some time between © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 June and August of 1977. Rogers testified to workshop meetings at which the doors were locked in April or May, without specifying the year, and to a “recent meeting” held on October 2. He said he tried to attend four workshop meetings but always found the doors locked. Both witnesses indicated that they were able to gain admittance to workshop meetings by rapping on the door or window. Rogers said that he had been told by the Mayor that admittance to Council workshop meetings was by invitation only. Several Council members testified that there had been times when the doors to City Hall were locked during workshop sessions, although no particular time was specified. This was attributed either to inadvertence or to a need to prevent vandalism. One councilman testified: “We have a very conscientious person who takes care of the City Hall. Call him a maintenance man, but he is young. And we meet in the back room and he has to go upstairs sometimes, so he will lock the doors. He is afraid something might be stolen, because we never we seldom go in the other room. And so they may have been locked, but they were never intentionally locked to keep out anybody. In the last eight and a half years I have served I have never had the doors locked intentionally.” A councilwoman testified that she knew of several occasions when the janitor locked the doors during a workshop meeting. She explained: “I think a time or two when the janitor maybe was *66 cleaning upstairs, and there’s been a problem with kids coming in, the restrooms have been vandalized. And if the janitor, the boy who works there, would not be in the outer office perhaps that’s the reason he locked it, because there’s a lot of problems with the kids from the playground coming across and using the drinking machine. And if they are rattling around out there, I believe that was his reason maybe for locking them to keep it was not to keep anybody out.” Neither Aukward nor Rogers attempted to attend the March 16 and 23 special workshop meetings of the Council. The defendants’ witnesses all testified that these particular meetings, as well as the Council’s other meetings, were open to the public. Testimony was adduced by the plaintiffs showing that various members of the Council and the Mayor had told others of a need to keep the annexation proposal as quiet as possible, not to broadcast or advertise it, to keep it “low key” or confidential, until the process of annexation could be completed. (3) At the conclusion of the evidence, the trial judge delivered an extended oral opinion. He said that the notice of the Council’s workshop meetings of March 16 and 23 was deficient because there was no “plain statement that this type of meeting is open **1076 to the general public.” He concluded that use of the term “workshop session” in the notice led the public to believe that these meetings were private or closed. He referred to a “time-honored custom” in New Carrollton that workshop sessions were closed, while regularly scheduled Council meetings were open to the public. Accordingly, the trial judge found as a fact that the workshop meetings of March 16 and 23 were held in violation of ss 10 and 12 of the Act. The trial judge found from the evidence that the doors to the Council’s workshop sessions were locked. He referred to *67 testimony of the plaintiff Aukward that the doors to workshop sessions that he attempted to attend were locked on three occasions over a three-year period. From this testimony, the trial judge reasoned that the doors must have been locked at all Council workshop meetings. He said that this was “a condition which had existed for some time, that it was well known, and that . . . if anybody showed up and persisted in rapping he would be admitted.” “But that doesn’t make an open meeting,” the court said, “because having to come up and rap on the door . . . exerts a chilling effect on the public’s participation in what is going on behind the locked door.” © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 The trial judge found from the evidence “that there was a tacit and well understood agreement between all concerned that no mention would be made of . . . (the annexation proposal), if possible, until as much agreement had been arranged as could possibly be arranged.” The court found “as a fact . . . that there was a plan, encouraged by . . . the City government, legislative and executive, to conduct whatever was done in the way of advice, study, information, in as low key a way as possible and with an absolute minimum of exposure to anybody’s knowledge, outside of the officials of each of the groups that were dealing with it and that that persisted to the very last when everybody was ready to go public and make a public pronouncement.” Evidence of the plan to keep the annexation proposal cloaked in secrecy was provided, the trial judge said, by the Council’s refusal to explain at its June 1978 budget meeting that an expense item of $8,000 was in fact incurred for a survey of the areas proposed for annexation. This was “a very significant piece of evidence,” the court said, which established “that there was a motive for keeping this quiet.” The trial judge stated that the Council must receive the “end product” of studies and reports made by other agencies at a public session, and that the first public disclosure of the annexation proposal was at the Council’s regular meeting of August 14, 1978. The court’s conclusion was that “the business of this annexation was in fact transacted at meetings which were not open to the public . . . and that the *68 action ultimately taken (the enactment of the annexation resolution) . . . grew out of that original series of non-public transactions.” On March 12, 1979, the court entered an order declaring that the defendants, “in the conduct of that portion of (their) business pertaining to the (proposed) annexation . . . failed to conduct (their) meetings in accordance with the provisions and requirements of Section 10 and Section 12 (of the Act).” The order recited that the meetings and deliberations which violated the Act’s provisions commenced with the Council’s meeting of March 16, 1978 and extended to the meeting of August 16, 1978, a period of 153 calendar days. The order further specified that “(t)o assure that no advantage accrues to or disadvantage is caused to any of the persons, organizations or political entities involved with or having an interest in the question of annexation,” the 153-day period would be “added to the date upon which this matter could have been considered at a public meeting which qualified under the statute for the purpose of any calculation of votes or consents required by law having an effect on the annexation question.” The order directed that January 13, 1979 would be the date of such calculation for purposes of further annexation proceedings. The defendants appealed, and we granted certiorari prior to **1077 decision by the Court of Special Appeals to consider whether, in view of the evidence presented, the trial court erred in holding that ss 10 and 12 of the Act had been violated. (4) We think the trial judge erred in concluding that the workshop meetings of March 16 and 23, which he deemed of such critical importance, were neither properly noticed nor open to the public. Nothing in s 12 requires that the notice contain a specific statement that the meeting is open to the general public. The section requires only that the public body give “reasonable advance notice (written if reasonably possible) of its open meetings,” including the date, time and place of the meeting. As disclosed by the evidence, the Council *69 met these statutory prerequisites in posting advance written notice of its workshop meetings of March 16 and 23 on the City Hall bulletin board (together with the subject matter of the meeting), in accordance with its earlier notice, published in two newspapers in compliance with the Act, that it would use this method of informing the public of these meetings. The record is replete with exhibits containing public notice of Council meetings, workshop and regular, posted on the City Hall bulletin board, commencing shortly after the Act’s effective date of July 1, 1977, so that whatever its past practice may have been, the Council gave due public notice of its meetings as required by the Act once it took effect. We think the obvious purpose and effect of such a posted notice is to invite the public to attend, and we view with incredulity the plaintiff Aukward’s testimony that although he saw the notices posted on the bulletin board, he did not know what they meant. That the meetings of March 16 and 23 were “workshop” rather than regular meetings does not require a specific invitation to the public to attend in order to constitute a valid notice under s 12. We hold, therefore, as to the workshop meetings of March 16 and 23, that the requisite statutory notice was given under s 12. Of course, to give notice of a meeting of the public body, and then intentionally prevent the public from attending, would constitute a gross violation of the Act, as the trial judge held. Indeed, any action taken by the public body which discourages public attendance at the meeting to any substantial degree would likely violate the Act’s © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 provisions. The locking of doors, for example, even for legitimate security purposes, would normally violate the Act’s provisions. It is, however, “presumed” under s 14(c) of the Act that the public body gave the requisite notice of the meeting and afforded the general public the right to attend. The subsection also specifies that “the burden of proving a violation is on the complainant.” We think the vague and unparticularized evidence adduced at the trial was legally insufficient to overcome the presumption of compliance with ss 10 and 12 and establish that the public was excluded from the meetings of March 16 *70 and 23, or indeed from any other Council meetings between the critical period of March 16 to August 16, 1978. The evidence shows that neither plaintiff Aukward nor Rogers attempted to attend the meetings of March 16 and 23. Nor did it show that any member of the public attempted to attend these meetings but was excluded. The only specific evidence in the case is that all Council meetings between March 16 and August 16, 1978 were open to the public. That some of the Council’s workshop meetings, held prior to the effective date of the Act, may have been closed to the public by “time-honored tradition” is of little significance in the face of evidence that, after the Act’s passage, the meetings were open to the public. That the doors to workshop meetings may have been locked at some time other than at the meetings of March 16 and 23, unspecified by the evidence either as to time or circumstances, does not, without more, overcome the presumption that these meetings, and all others, held up to August 16, 1978, were open to the public. In his oral opinion, the trial judge expressed the belief that the annexation **1078 proposal, from beginning to end, was cloaked in secrecy. But as the evidence reveals, the annexation studies conducted by the APC, and the Council’s later involvement in the annexation process, beginning on March 16, 1978, were not conducted in secret but at open meetings at which minutes were taken and made available for public inspection. While it may have been that members of the Council and the Mayor believed that it was in the City’s best interest that the annexation proposal not be unduly highlighted so as to invite opposition, the fact remains that the proposal was considered by the Council at public meetings held in compliance with ss 10 and 12 of the Act. That the Council at a June, 1978 regular meeting amended the “legal expense” item in the budget to cover the survey fee and did not disclose the details to an inquiring citizen does not warrant the inference drawn by the trial judge that the Council’s meetings of March 16 and 23 and all others at which annexation was considered were conducted in secret. The evidence in the case is plainly to the contrary. The Council’s workshop meeting of July 31, 1978, at which the annexation *71 proposal was under consideration, was not even alleged to have been closed to the public. The informational “flyer” distributed to the citizenry of New Carrollton on August 5, 1978, announced that a special meeting would be held on August 8 at City Hall “to present a proposal to annex the New Carrollton (METRO) Triangle and adjacent areas into the City of New Carrollton.” Nothing underhanded or clandestine concerning this notification and public meeting is either alleged or established. Nor was there anything sinister or illegal about the invited attendance of the Mayor and members of the Council at the August 7, 1978 meeting in West Lanham Hills for the purpose of answering questions that the residents might have about New Carrollton. Public notice of this event was not required by the Act to be given to the citizens of New Carrollton since, as we view it, it was not a “meeting” of the public body but rather, within the contemplation of s 8(f), was an “(occasion) . . . not designed or intended for the purpose of circumventing the provisions of this subtitle.” Moreover, there was no evidence, legally sufficient, to justify the conclusion reached by the trial judge that there was a plan to conduct the annexation process in secret and not disclose it to the public until it was largely completed. The trial judge’s conclusion that the first public exposure of the annexation plan was at the Council’s regular meeting of August 16, 1978 is totally at odds with the evidence. On the record before us, we hold that there was no evidentiary justification to support the judgment of the lower court that the Council, from March 16, 1978 to August 16, 1978, conducted its business pertaining to annexation in violation of the Act’s requirements. That it may have been the desire of some members of the Council and the Mayor to conduct the process of annexation in a “low key” manner, and that they may have expressed this desire to others, does not warrant the inference that as a body the Council deliberated in secret at closed meetings. In so concluding, we note that the heart of the Act is found in the public policy declarations of s 7, I. e., that “public business be performed in an open and public manner and that *72 the citizens be advised of and aware of the performance of public officials (when exercising legislative, quasi-legislative or advisory functions) and the deliberations and decisions that go into the making of public policy.” That commitment is secured by the provisions of ss 10 and 12 which require that notice of meetings be given and that the meetings be open to the public. While the Act does not afford the public any right © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings. In this regard, it is clear that the Act applies, not only to final decisions made by the public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, **1079 unless authorized by s 11 to be closed to the public. The Act makes no distinction between formal and informal meetings of the public body; it simply covers all meetings at which a quorum of the constituent membership of the public body is convened “for the purpose of considering or transacting public business.” s 8(f). It is, therefore, the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business. In this regard, the Supreme Court of Florida, in Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), construing that state’s open meeting law, observed: “One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic premeeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other *73 authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.” 296 So.2d at 477. Accord, Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., 263 Cal.App.2d 41, 69 Cal.Rptr. 480 (1968); Orange City Publications v. Council of City of Newburgh, 60 A.D.2d 409, 401 N.Y.S.2d 84 (1978). These precepts were not violated by the Council in this case. On the contrary, it gave proper public notice of its meetings involving the annexation proposal, and afforded the public the right to attend both regular and workshop meetings at which the proposal was considered preliminarily to the introduction by the Council of its annexation resolution on October 4, 1978. Since the evidence fails to demonstrate a violation of the Act’s provisions, the lower court was manifestly in error; its order must therefore be vacated and the referendum election on the annexation resolution permitted to proceed forthwith. ORDER VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR THE ENTRY OF A DECLARATORY JUDGMENT CONSISTENT WITH THE VIEWS EXPRESSED HEREIN; COSTS TO BE PAID BY THE APPELLEES. All Citations 287 Md. 56, 410 A.2d 1070 Footnotes * ORTH, J., participated in the hearing of the case and in the conference in regard to its decision but retired prior to the adoption of the opinion by the Court. 1 Section 8(b) defines “Advisory function ” to mean: “the study, evaluation, or the making of recommendations on matters of public concern pursuant to an official delegation of responsibility in the form of a constitutional or charter provision, law, statute, resolution, ordinance, order, rule, regulation, or other formal action by or on behalf of a public body which exercises legislative, quasi-legislative, executive, judicial or quasi-judicial functions, or by the Governor or the chief executive of a political subdivision of the State.” Section 8(e) defines “Legislative function ” to mean: “the approval, disapproval, enactment, amendment or repeal or the process of approving, disapproving, enacting, amending or repealing by any public body of any law, statute, resolution, ordinance, or other measure to set public policy; the approval or disapproval or the process of © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 City of New Carrollton v. Rogers, 287 Md. 56 (1980) 410 A.2d 1070 approving or disapproving by any public body of any appointment; the proposing or the process of proposing by a public body of any Constitution, constitutional amendment, charter, or charter amendment; or the ratification or process of ratifying by any public body of any constitution or constitutional amendment.” Section 8(i) defines “Quasi-legislative function ” to mean: “(1) The adoption, amendment, disapproval or repeal of a rule, regulation, or bylaw having the force of law by a public body, or the process of doing so; (2) The approval, disapproval, or amendment of a contract or a budget by a public body, or the process of doing so.“ 2 The City Charter requires that the Council meet on the third Wednesday of each month “and at such other times as may be required to conduct the business of the City.” s 3(d). The Council holds two regularly scheduled meetings each month, on the first and third Wednesdays, and two “workshop” meetings per month, generally on the Monday preceding the regular Council meeting. The Council also holds “special workshop” meetings as may be needed. The regular meetings are held on the second floor of the City Hall, in a large room, while the workshop meetings are held in a conference room on the first floor of the building. 3 See Art. 23A, s 19(b). End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 Matter of Orange County Publs., Div. of Ottaway Newspapers..., 60 A.D.2d 409 (1978) 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 KeyCite Yellow Flag - Negative Treatment Distinguished by Daily Gazette Co., Inc. v. North Colonie Bd. of Ed., N.Y.A.D. 3 Dept., January 25, 1979 60 A.D.2d 409, 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 In the Matter of Orange County Publications, Division of Ottaway Newspapers, Inc., Appellant, v. Council of the City of Newburgh et al., Respondents Supreme Court, Appellate Division, Second Department, New York January 3, 1978 CITE TITLE AS: Matter of Orange County Publs., Div. of Ottaway Newspapers v Council of City of Newburgh SUMMARY Appeal from a judgment of the Supreme Court at Special Term (Edward M. O’Gorman, J.), dated April 26, 1977 and entered in Orange County, declaring (1) that the provisions of section 93 (now § 98) of the Public Officers Law did not apply to informal meetings of the City Council of the City of Newburgh which were not convened for the purpose of transacting public business officially, and (2) that the city’s Board of Zoning Appeals might conduct its deliberations in private session, but that that part of its proceedings in which its decision was announced, and the vote of the members taken, must be open to the public, as must all its other regular proceedings. Two reporters employed by petitioner, a newspaper publisher, had been ordered to leave an informal meeting of the members of the Council of the City of Newburgh, held a week before its regular meeting and characterized by the council as a “work session” for the purpose of considering problems of urban renewal in the city’s waterfront area. Another of petitioner’s reporters, who was attending a regularly scheduled meeting of the city’s Board of Zoning Appeals, held for the purpose of considering requests for zoning variances, had been ordered to leave that meeting when the board convened for the purposes of deliberating and making its decision. Section 98 of the Public Officers Law, a section of article 7 of that law, known as the Open Meetings Law, required that every meeting of a public body, except for an executive session, be open to the general public; section 97 of the article defined a meeting as “the formal convening of a public body for the purpose of officially transacting public business”, and section 103 of the article exempted from its provisions judicial or quasi-judicial proceedings. The Appellate Division modified the judgment of Special Term, by striking the declaration that section 93 (now § 98) of the Public Officers Law did not apply to informal meetings of the city council which were not convened for the purpose of transacting public business officially and substituting therefor a declaration that the word “meeting”, as set forth in that *410 section, included the gathering or meeting of a public body for the purpose of transacting public business, whenever a quorum was present, whether or not a vote of members was taken, and otherwise affirmed. the judgment, holding, in an opinion by Justice Rabin, that the Open Meetings Law was not limited in application to regular or formal meetings only; that it was the entire decision-making process which the Legislature intended to affect by the enactment of the statute; that a gathering, by a quorum, on notice, at a designated time and place, where public business was not only voted upon but also discussed, came within the tenor and spirit of the law and should be open to the public, and that, as to the meeting of the city’s Board of Zoning Appeals, Special Term had properly distinguished between that portion of the meeting wherein the board conducted its deliberations, which was judicial in nature and thus not subject to the law, and that portion at which the board’s decision was announced, the votes of its members taken, and its other regular business conducted, which was clearly nonjudicial and must be open to the public. Matter of Orange County Pub., Div. of Ottaway Newspapers v Council of City of Newburgh, 89 Misc 2d 847, modified. HEADNOTES Public Officers Meetings of Public Bodies Open to Public © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Matter of Orange County Publs., Div. of Ottaway Newspapers..., 60 A.D.2d 409 (1978) 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 () A meeting of a city council, characterized by it as a “work session” and concededly not an executive session, the purpose of which was to consider problems of urban renewal in an area of the city, but at which the council did not plan to take a vote, was a meeting of a public body, required to be open to the public under the Open Meetings Law (Public Officers Law, art 7), which provides that every meeting of a public body, except for an executive session, shall be open to the general public, and defines the word “meeting” as “the formal convening of a public body for the purpose of officially transacting public business”. REFERENCES 48 NY Jur, Public Officers and Employees § 97.5 Public Officers Law Art 7 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 161 ANNOTATION REFERENCES Validity, construction, and application of statutes making public proceedings open to the public. 38 ALR3d 1070. Public Officers APPEARANCES OF COUNSEL Meetings of Public Bodies Open to Public () The Open Meetings Law (Public Officers Law, art 7), which provides that every meeting of a public body, except for an executive session, shall be open to the general public, and which defines the word “meeting” as “the formal convening of a public body for the purpose of officially transacting public business”, is not limited in application to regular or formal meetings only, but applies to the gathering or meeting of a public body for the purpose of transacting public business, whenever a quorum is present, whether or not a vote of the members is taken. Public Officers Meetings of Public Bodies Open to Public () That portion of a meeting of a board of zoning appeals during which the board conducts its deliberations on requests for zoning variances is judicial in nature and, accordingly, is not subject to the Open Meetings Law *411 (Public Officers Law, part 7), which requires that every meeting of a public body be open to the general public but which exempts from its mandates judicial or quasi-judicial proceedings, while that portion of the meeting at which the board’s decision is announced, the votes of its members taken, and its other regular business conducted, is nonjudicial and must be open to the public. TOTAL CLIENT SERVICE LIBRARY Becker, Card, Levy & Richards, P. C. (Rodney A. Richards of counsel), for appellant. David F. Jordan, Corporation Counsel, for respondents. OPINION OF THE COURT Rabin, J. The petitioner is the publisher of the Times Herald Record (the Record), a daily newspaper having a general circulation in excess of 53,000 throughout several counties, including Orange County. Reporters for the Record regularly attend meetings of the Council of the City of Newburgh and the Zoning Board of Appeals of the City of Newburgh. The council’s meetings have been held on a regular basis on the second and fourth Monday of each month and the zoning board’s meetings have traditionally been held on the fourth Tuesday of each month. According to respondents, the members of the Council of the City of Newburgh gather informally in the City Manager’s office to discuss any topic of interest four days prior to each regular meeting. No action is taken by the council at that time. They characterize such meetings as “work sessions” and exclude the public. The council’s first “work session” of 1977 was held on *412 Monday, January 3, at the City Hall, in the City Manager’s office. Advance notice of the meeting had not been given to the public or mass media. The Record learned the time and place of the meeting, and that its purpose was to consider problems of urban renewal in the © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Matter of Orange County Publs., Div. of Ottaway Newspapers..., 60 A.D.2d 409 (1978) 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 city’s waterfront area. Two employees of the Record attempted to attend that meeting. The members of the council ordered the reporters to leave, taking the position that meetings were required to be open to the public only in the event a formal vote on government business was to be taken, and that in this case the council did not plan to take such a vote. (, )Petitioner commenced this article 78 proceeding seeking a judgment declaring, inter alia, that the word “meeting” within the meaning of the Open Meetings Law (Public Officers Law, art 7 [L 1976, ch 511, § 1, eff Jan. 1, 1977]) includes the gathering or meeting of a public body whenever a quorum is present for the purpose of transacting public business, whether or not a vote of the members of the public body is taken. Special Term deemed this to be an action for declaratory relief and declared that the provisions of section 93 (now renumbered § 98) of the Public Officers Law do not apply to informal meetings of the City Council of the City of Newburgh which are not convened for the purpose of transacting public business officially. Petitioner contends that Special Term erred in so holding. We agree. We are called upon to determine whether the “work session” of the respondent council from which the petitioner’s reporters were barred was a meeting within the meaning of subdivision 1 of section 97 of the Public Officers Law. We begin by examining the current enactment for the statute’s objectives and for the functional character of the meetings to which the Legislature intended it to apply. At the outset, the Open Meetings Law expresses its intent through a legislative declaration: “It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who *413 created it” (Public Officers Law, § 95). In other words, public business is the people’s business and the people have a right to know. The Open Meetings Law further provides, in pertinent part: “§ 96. Short title. This article shall be known and may be cited as ‘Open Meetings Law’. “§ 97. Definitions. As used in this article: 1. ‘Meeting’ means the formal convening of a public body for the purpose of officially transacting public business. “2. ‘Public body’ means any entity, for which a quorum is required in order to transact public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law. “3. ‘Executive session’ means that portion of a meeting not open to the general public. “§ 98. Open meetings and executive session. (a) Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section ninety-five1 of this article. ... “§ 100. Conduct of executive sessions. 1. Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys: “a. matters which will imperil the public safety if disclosed; “b. any matter which may disclose the identity of a law enforcement agent or informer; “c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed; “d. discussions regarding proposed, pending or current litigation; *414 “e. collective negotiations pursuant to article fourteen of the civil service law; “f. the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation; “g. the preparation, grading or administration of © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Matter of Orange County Publs., Div. of Ottaway Newspapers..., 60 A.D.2d 409 (1978) 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 examinations; and “h. the proposed acquisition, sale or lease of real property, but only when publicity would substantially affect the value of the property. “2. Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.” The remaining provisions of the law require, inter alia, that notice to the public be given (§ 99); that minutes be taken and made available to the public (§ 101); and that any action taken in violation of the statute, “upon good cause shown”, may be declared void in whole or in part (§ 102). As noted, a limiting feature of the law permits executive sessions wherein specifically enumerated subjects which may affect public safety, law enforcement, litigation, collective bargaining negotiations, personnel matters, examinations and land speculation may be considered (§ 100). The meetings we are here concerned with concededly were not executive sessions. Under subdivision 1 of section 97 of the Public Officers Law, the word “meeting” is defined as “the formal convening of a public body for the purpose of officially transacting public business.” This definition contains several words of limitation such as “public body”, “formal convening” and “officially transacting public business”. Special Term construed these terms to mean that one of the minimum criteria for a meeting would include the intent to adopt, then and there, measures dealing with the official business of the governmental unit. Unfortunately this narrow view has been used by public bodies as a means of circumventing the Open Meetings Law. Certain practices have been adopted whereby public bodies meet as a body in closed “work sessions”, “agenda sessions”, “conferences”, “organizational meetings”, and the like, during which public business is discussed, but without the taking of any action. Thus, the deliberative process which is at the core of the Open Meetings Law is not available for public scrutiny (see First Annual Report to the Legislature on the Open *415 Meetings Law, Committee on Public Access to Records, Feb. 1, 1977).2 We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one’s official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute. It is not difficult to see how this conclusion is reached. A public body is an entity for which a quorum consisting of two or more members is required to transact public business (Public Officers Law, § 97, subd 2). Section 41 of the General Construction Law defines the requirement of a quorum in terms of the performance of a public duty. We can therefore equate the performance of a public duty with the transaction of public business. The dictionary meaning of the word “transact” is to “carry on business” (Webster’s Third New Int Dictionary). The phrase “officially transacting public business”, therefore, when read in conjunction with the Open Meetings Law’s legislative declaration, contemplates a broad view extending not only to the taking of an official vote, but also to peripheral discussions surrounding the vote (see Transcript of the Assembly Debate, Assembly Bill 7501-B, May 20, 1976, pp 6267-6268). The word “formal” is defined merely as “following or according with established form, custom, or rule” (Webster’s Third New Int Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body or matters pending before a public body. *416 The clear implication then of these phrases of limitation, in the light of the other requirements of the Open Meetings Law, is that they connote a gathering, by a quorum, on notice, at a designated time and place, where public business is not only voted upon but also discussed. These meetings, regardless of how denominated, come within the tenor and spirit of the Open Meetings Law and should be open to the public. By analogy to the original Florida Sunshine Law (Fla Stat Ann, § 165.22), Special Term concluded that the Legislature intended to limit the application of the New York statute to regular or formal meetings only, based upon the Florida court’s interpretation of its Open Meetings Law as found in Turk v Richard (47 So 2d 543 [Fla]). There the court held that the phrase “all meetings” referred only to formal assemblages of a municipal © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Matter of Orange County Publs., Div. of Ottaway Newspapers..., 60 A.D.2d 409 (1978) 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 council sitting as a joint deliberative body for the purpose of transacting official municipal business. Special Term opined that, notwithstanding a subsequent amendment to the Florida statute in 1967 (Fla Stat Ann, § 286.011) to change the result of Turk and to broaden the scope of the statute to include nonformal meetings (see City of Miami Beach v Berns, 231 So 2d 847 [Fla]), since the New York Legislature incorporated language similar to that used by the Florida court in Turk, a narrow application should be afforded the New York statute. However, Special Term’s reliance is misplaced. Absent from the Florida statute, but included in our own, is the declaration of legislative intent enabling an interpretation and application most favorable for its intended beneficiary--the public.3 We agree that not every assembling of the members of a public body was intended to be included within the definition. Clearly casual encounters by members do not fall within the open meetings statutes. But an informal “conference” or “agenda session” does, for it permits “the crystallization of secret decisions to a point just short of ceremonial acceptance” (Adkins, Government in the Sunshine, Federal Bar News, vol 22, No. 11, p 317). *417 In further support of the fact that the Open Meetings Law was intended to apply to all discussions by a public body of matters pending before it, we need only look to the provisions made for executive sessions (Public Officers Law, § 100). Common sense alone dictates that the provisions for executive sessions are meaningless, or at best superfluous, if a public body can hold a “work session” without paying heed to the Open Meetings Law. If the legislative intent was to permit public bodies to convene at gatherings that they themselves interpreted to be informal, during which they would discuss the business of the public body, then the New York State Legislature would not have provided for executive sessions. The very mechanism for an executive session, in and of itself, suggests that the Legislature wanted to provide for the possibility of a private working session in the absence of the public eye, but only under the express conditions and enumerated purposes contained therein. Petitioner also asks for a declaration that the term “judicial or quasi-judicial proceedings”, within the meaning of the Open Meetings Law, does not apply to meetings or proceedings of the Newburgh City Council or the Newburgh Zoning Board of Appeals. Section 103 of the Public Officers Law provides, in pertinent part: “Nothing contained in this article shall be construed as extending the provisions hereof to: 1. judicial or quasi-judicial proceedings”. On January 25, 1977 the Zoning Board of Appeals held its regularly scheduled meeting. The purpose of the meeting was to consider requests for two zoning variances in the City of Newburgh. The Record sent a reporter to cover that meeting. He was permitted to listen to the presentations made for the zoning variances, but was ordered to leave the meeting when the board convened for the purposes of deliberating and making its decision. The members of the board took the position that this aspect of the Zoning Board of Appeals’ meeting was quasi-judicial and therefore exempt from the mandates of the Open Meetings Law pursuant to subdivision 1 of section 103. Special Term declared that the Board of Zoning Appeals could conduct its deliberations in private, but that the part of its proceedings in which its decision is announced, and at which the vote of the individual members is taken, must be open to the public, as must all its other regular proceedings. ()Petitioner urges that the “meetings” of the Newburgh *418 Zoning Board of Appeals are not judicial in nature, and are entirely subject, therefore, to the provisions of the Open Meetings Law. We agree with Special Term that there is a distinction between that portion of a meeting of the zoning board wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly nonjudicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals (see Matter of Hecht v Monaghan, 307 NY 461; see, also, Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158). Accordingly, pursuant to subdivision 1 of section 103 of the Public Officers Law, the deliberations of the Newburgh Board of Zoning Appeals as to the zoning variances are not subject to the Open Meetings Law. It is clear that there is a pervasive tendency for our public officials to attempt to function in secrecy (see Note, Access to Official Information: A Neglected Constitutional Right, 27 Ind LJ 209). The Federal Government has adopted the Freedom of Information Act (US Code, tit 5, § 552, as amd by PL 93-502, §§ 1-3 [Nov. 21, 1974]), which purports to prevent such secrecy by granting access to government records. On the State level, “sunshine” laws have been enacted to expose and lay bare the decision-making process of governmental bodies.4 New York is apparently one of the last to join its sister States in passing a specific Open Meetings Law, although various other statutes in New York contain “open vote” provisions (see, e.g., Village Law, § 7-712; © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Matter of Orange County Publs., Div. of Ottaway Newspapers..., 60 A.D.2d 409 (1978) 401 N.Y.S.2d 84, 3 Media L. Rep. 1699 County Law, § 152, subd 3; Town Law, § 267, subd 1; Education Law, § 1708, subd 3). The Open Meetings Law was obviously designed to assure the public’s right to be informed. Accordingly, any private or secret meetings or assemblages of the Council of the City of Newburgh, when a quorum of its members is present and when the topics for discussion and eventual decision are such as would otherwise arise at a regular meeting, are a violation of the New York Open Meetings Law. (, )The judgment should be modified by striking therefrom *419 the declaration that the provisions of section 93 (now renumbered 98) of the Public Officers Law do not apply to informal meetings of the City Council of the City of Newburgh which are not convened for the purpose of transacting public business officially and substituting therefor the declaration that the word “meeting”, as set forth in section 98 of the Public Officers Law, includes the gathering or meeting of a public body for the purpose of transacting public business, whenever a quorum is present, whether or not a vote of members of the public body is taken. As so modified, the judgment should otherwise be affirmed. Hopkins, J. P., Latham and Margett, JJ., concur. Judgment of the Supreme Court, Orange County, dated April 26, 1977, modified, on the law, by deleting the second decretal paragraph thereof and substituting therefor a declaration that the word “meeting” as set forth in section 98 of the Public Officers Law includes the gathering or meeting of a public body for the purpose of transacting business, whenever a quorum is present, whether or not a vote of the members of the public body is to be taken. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. *420 Copr. (C) 2019, Secretary of State, State of New York Footnotes 1 In renumbering the sections of the Open Meetings Law (L 1977, ch 933, § 2), the Legislature inadvertently neglected to renumber this reference, which should be to section 100. 2 Section 104 of the Public Officers Law requires the filing of a report not later than February 1 of each year to the Legislature by the Committee on Public Access to Records reviewing the implementation and operation of the Open Meetings Law and making recommendations as that committee deems advisable. 3 A comparison with the California Open Meetings Law (Cal Government Code, § 54953) is more appropriate. There the courts had a statement of legislative purpose similar to our own, declaring how essential it is that citizens be able to attend and listen to the deliberations and the decisions that go into the formulation of public policy. As interpreted by Sacramento Newspaper Guild v Sacramento County Bd. of Supervisors (69 Cal Rptr 480), it was held that any gathering, formal or not, is considered a meeting within the scope of its Open Meetings Law if public business is discussed. 4 See, e.g., Del Code Ann, tit 29, §§ 10001-10005 (Supp 1976); Mich Compiled Laws Ann, §§ 15.261 to 15.273 (Supp 1977); NJ Stat Ann, §§ 10:4-7; 10:4-8; 10:4-12; 10:4-15; and SC Code Ann, tit 30, §§ 3-10 to 3-40, subds (a),(b) (Supp 1977). End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 KeyCite Yellow Flag - Negative Treatment Superseded by Statute as Stated in McComas v. Board of Educ. of Fayette County, W.Va., May 17, 1996 263 Cal.App.2d 41, 69 Cal.Rptr. 480 SACRAMENTO NEWSPAPER GUILD, LOCAL 92 of THE AMERICAN NEWSPAPER GUILD, AFL-CIO, et al., Plaintiffs and Respondents, v. SACRAMENTO COUNTY BOARD OF SUPERVISORS et al., Defendants and Appellants. Civ. No. 11685. Court of Appeal, Third District, California. June 12, 1968. HEADNOTES (1) Counties § 171--Actions--Right of Taxpayers to Injunctive Relief. The right under the Brown Act (Gov. Code, § 54950 et seq.) to open disclosure at meetings, deliberations and actions of local legislative bodies, as an attribute of citizenship, is not possessed in any increased degree by those whose interest in the news is economic, but, although a labor organization of professional newsmen had only a questionable standing to sue for injunctive relief for violations of such act by a city board of supervisors, its action in doing so complied sufficiently with the “interested person” provision of Gov. Code, § 54960, to be accepted on appeal, especially where the county failed to raise the issue at trial, and where, had it done so, the complaint could have been appropriately adjusted. (2a, 2b) Counties § 53--Boards of Supervisors--Meetings. An Elks Club luncheon attended by five county supervisors, the county counsel, executive and director of welfare, and members of the Central Labor Council, AFL-CIO, was a “meeting of the legislative body of a local agency” within the meaning of Gov. Code, § 54953, and required under the 1961 amendments to the Brown Act (Gov. Code, § 54950 et seq.) to be “open and public,” and it was improper to exclude newspaper reporters, where, although the session was allegedly informal, the subject of the discussion was the county’s action in connection with a strike, a matter of county governmental interest not involving confidential communications with the county counsel. (3) Counties § 53Words and Phrases--Board of Supervisors--Meetings. To “deliberate” is to examine, weigh and reflect on the reasons for or against a choice, and in the context of the Brown Act (Gov. Code, § 54950*42 et seq.), requiring that meetings and deliberations of local legislative bodies be conducted openly, “deliberation” connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision, and it is only the misdemeanor penalty which is restricted to meetings “where action is taken” (Gov. Code, § 54959). “Meetings” include any informal sessions designed for the discussion of public business. See Cal.Jur.2d, Counties, § 23; Municipal Corporations, § 347; Am.Jur.2d, Supp., Counties, § 32. (4a, 4b) Counties § 53Witnesses § 76--Boards of Supervisors--Meetings. A violation of the Brown Act (Gov. Code, § 54953) by county supervisors, in denying newsmen admittance to an informal luncheon session on the action to be taken by the county in connection with a strike, was not excused under the lawyer-client privilege (Evid. Code, § 952) by the county’s pending lawsuit to restrain the expected strike and picketing by county-employed social workers, where, although the supervisors present were accompanied, not only by the county executive, director of welfare and members of the AFL-CIO, but also by the county counsel, the privilege was not claimed in the subsequent trial and it was admitted that no supervisor said anything to counsel in confidence or received advice from him or had even come for that purpose. (5) Witnesses § 76(2)--Privileged Communications--Attorney and Client-- Extent of Privilege--Confidential Character of Communication. Evid. Code, § 952, extending the right of nondisclosure of lawyer-client communications to situations involving the presence of third persons, cannot be invoked where the client’s communication was not intended to be confidential. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 (6a, 6b) Counties § 53Witnesses § 76--Privileged Communications-- Attorney and Client--Extent of Privilege--Local Legislative Bodies. A preliminary injunction restraining a county board of supervisors and its committees, from holding any closed meeting at which three or more members are present except under the statutory exceptions for personnel and national security matters, was too broad and must be modified to allow the board to consult privately with the county counsel, or other attorney representing the board, under circumstances in which the lawyer-client privilege conferred by Evid. Code, §§ 950-962 could lawfully be claimed. (7a, 7b) Witnesses § 74Counties § 53--Privileged Communications-- Attorney and Client--Public Entities. The Evidence Code, following decisional law, includes public agencies and entities among the clients who may assert the privilege not to disclose confidential lawyer-client communications (Evid. Code, §§ 175, 200, 950 et seq.), and it was not the legislative intent to abrogate such privilege by the Brown Act (Gov. Code, § 54950 et seq.), requiring meetings, *43 deliberations and actions of local legislative bodies to be conducted openly. (8) Witnesses § 74--Privileged Communications--Attorney and Client-- Objective. The objective of the privilege not to disclose confidential lawyer-client commnications (Evid. Code, § 950 et seq.) is to enhance the value which society places on legal representation by assuring the client full disclosure to the attorney unfettered by fear that others will be informed. See Cal.Jur.2d, Witnesses, § 55; Am.Jur., Witnesses (1st ed § 462). (9) Statutes § 86--Enactment and Amendment--Repeal by Inconsistent Statute. When a later statute supersedes or substantially modifies an earlier law, but without expressly referring to it, the earlier law is repealed or partially repealed by implication. (10) Statutes § 87, 185--Enactment and Amendment--Repeal by Inconsistent Statutes--Necessity for Clear RepugnancyPresumptions--Legislative Knowledge. It is to be presumed that in enacting a statute the Legislature was aware of existing, related laws and intended to maintain a consistent body of statutes, and thus there is a presumption against repeals by implication, which occur only where the two acts are so inconsistent that there is no possibility of concurrent operation, or where the later provision gives undebatable evidence of an intent to supersede the earlier. (11) Statutes § 93, 195--Enactment and Amendment--Giving Effect to Both EnactmentsCodes--Conflicting Provisions. In interpreting the meaning of two apparently inconsistent statutes, the courts are bound to maintain the integrity of both statutes if they may stand together, and where they appear in separate codes, the codes and statutes must be regarded, for purposes of statutory construction, as blending into each other. (12) Statutes § 82Counties § 53--Enactment and Amendment--General Repealing Clause. By failing to designate what, if any, laws are superseded, Gov. Code, § 54958, making open disclosure at meetings, deliberations and actions applicable to legislative bodies “notwithstanding the conflicting provisions of any other state law,” has no greater force than a repeal by implication, and therefore subordinates or repeals existing law only to the extent that the two laws are irreconcilable. (13) Statutes § 135--Construction--Inferences--Unpassed Bills. Unpassed bills relating to an act already in effect evoke conflicting inferences, and have little value as evidence of legislative intent. *44 (14) Counties § 53Witnesses § 76--Privileged Communications--Attorney and Client--Extent of Privilege--Local Legislative Bodies. The privilege not to disclose confidential lawyer-client communications (Evid. Code, § 950 et seq.), as applied to local legislative bodies claiming the privilege in relation to the open meetings requirement of the Brown Act (Gov. Code, § 54950 et seq.), is to be strictly construed. Public board members may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law, and neither the attorney’s presence nor the happenstance of some kind of lawsuit may serve as a pretext for secret consultations whose revelation will not injure the public interest. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 SUMMARY APPEAL from an order of the Superior Court of Sacramento County granting a preliminary injunction. B. Abbott Goldberg, Judge. Modified and affirmed. COUNSEL John B. Heinrich, County Counsel, for Defendants and Appellants. Harold W. Kennedy and John D. Maharg, County Counsel (Los Angeles), and Clarence H. Langstaff, Assistant County Counsel, as Amici Curiae on behalf of Defendants and Appellants. William P. Smith, Jr., and Richard A. Case for Plaintiffs and Respondents. Flint & MacKay, Edward L. Compton and Lon R. Clearwaters as Amici Curiae on behalf of Plaintiffs and Respondents. FRIEDMAN, J. At the behest of plaintiff Newspaper Guild the trial court issued a preliminary injunction restraining the Sacramento County board of supervisors and its committees from holding any closed meeting at which three or more members were present except under the statutory exceptions for personnel and national security matters. The lawsuit was premised upon asserted violations of California’s public meeting law, known as the Brown Act. (Gov. Code, §§ 54950-54960.1) The board of supervisors and its members appeal from the order granting the preliminary injunction. *45 Immediate occasion for the lawsuit was a luncheon gathering at the Elks Club in Sacramento on February 8, 1967. Participants were the five county supervisors, the county counsel, county executive, county director of welfare and several members of the Central Labor Council, AFL-CIO. The subject of discussion was a strike of the Social Workers Union against the county and the county’s effort to enforce an injunction secured in connection with the strike. Newspaper reporters sought but were denied admission to the gathering. In their amended complaint the plaintiffs described not only the February 8 occurrence but alleged threatened future meetings of the supervisors, the county counsel and county executive with third persons selected by them. Pending the appeal this court issued a limited writ of supersedeas permitting the supervisors to confer with the county counsel under conditions in which the lawyer-client privilege would obtain, but otherwise maintaining enforceability of the trial court decree (Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 255 Cal.App.2d 51 [62 Cal.Rptr. 819].) The Brown Act opens with section 54950, which states the law’s intent that the “actions [of local legislative bodies] be taken openly and that their deliberations be conducted openly.”2 At its core is section 54953, which declares: “All meetings of the legislative body of a local agency shall be open and public. ...” Both these declarations were in the original version of the Brown Act adopted in 1953. As the legislative body of a local agency, a county board of supervisors is subject to the act. (§§ 54951, 54952.) One feature of the act is section 54957, which permits executive sessions to consider (a) matters affecting the national security and (b) employment and dismissal of personnel. The 1961 Legislature made several additions to the Brown Act (Stats. 1961, ch. *46 1671), among them a definition of the phrase “action taken” in section 54952.6 and a new misdemeanor penalty provision in section 54959.3 () A provision of the Brown Act, section 54960, authorizes any “interested person” to seek legal restraint against violations or threatened violations. Defendants do not question the Newspaper Guild’s standing to sue. The complaint alleges that the Newspaper Guild is a labor organization composed of professional working newspaper men and women. Whether that allegation makes out adequate standing to sue is at least questionable. (See United States ex rel. Stowell v. Deming (1927) 19 F.2d 697, 698, cert. den. 275 U.S. 531 [72 L.Ed. 410, 48 S.Ct. 28]; Adler v. City Council of Culver City (1960) 184 Cal.App.2d 763, 775 [7 Cal.Rptr. 805]; Associated Boat Industries v. Marshall (1951) 104 Cal.App.2d 21, 22 [230 P.2d 379].) The right to disclosure is an attribute of citizenship, not possessed in any increased degree by persons or groups whose interest in access to news is economic. (See Oxnard Publishing Co. v. Superior Court (1968)*(Cal.App.) [68 Cal.Rptr. 83].) Section 54950’s broad declaration of the public’s right to disclosure should logically extend standing to any county elector. Had the county raised the issue in the trial court, amendment of the complaint to add appropriate parties and allegations would have been little more than a matter of mechanics. Under the circumstances, there is substantial compliance with section 54960. () Although all five of the county supervisors were present at the Elks Club luncheon of February 8, 1967, and although the subject or discussion was a matter of county governmental interest, defendants contend that the trial court erred in viewing it as a meeting within the scope of the Brown Act. They rely upon Adler v. City Council of Culver City, supra, 184 Cal.App.2d at pp. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 770-774, which held the statute applicable only to formal meetings for the transaction *47 of official business, inapplicable to informal sessions. The Newspaper Guild, on the other hand, argues that the 1961 amendments of the Brown Act were designed to nullify the Adler decision. (See 42 Ops. Cal. Atty. Gen. 61 (1963); Comment, Access to Governmental Information in California, 54 Cal.L.Rev. 1650, 1653-1655 (1966); cf. Herlick, California’s Secret Meeting Law, 37 State Bar J. 540 (1962). Section 54953 is unequivocal in its central thrust upon official sessions for the transaction of official business, but somewhat ambiguous as it encounters peripheral gatherings or conversations among board members where public business is a topic. Interpretation to accomplish legislative intent is a truism of the law. Instead of appraising the accuracy of Adler as an interpretation of the pre-1961 law and analyzing the 1961 amendments so far as they bear upon Adler, we prefer to interpret the public meeting provision by examining the current enactment of which it forms a part. Attempts to define “meeting” by synonyms or by coupling it with modifying adjectives involve a degree of question-begging. Interpretation requires inquiry into the Brown Act’s objective and into the functional character of the gatherings or sessions to which the legislature intended it to apply. There is nothing in the Brown Act to demarcate a narrower application than the range of governmental functions performed by the agency. Although the Brown Act artificially classifies it as a legislative body, a board of supervisors actually performs legislative, executive and even quasi-judicial functions. (Chinn v. Superior Court (1909) 156 Cal. 478, 481 [105 P. 580]; Fraser v. Alexander (1888) 75 Cal. 147, 152 [16 P. 757].) Section 54950 is a deliberate and palpable expression of the act’s intended impact. It declares the law’s intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either. () To “deliberate” is to examine, weigh and reflect upon the reasons for or against the choice. (See Webster’s New International Dictionary (3d ed.)) Public choices are shaped by reasons of fact, reasons of policy or both. Any of the agency’s functions may include or depend upon the ascertainment of facts. (Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 635 [12 Cal.Rptr. 671, 361 P.2d 247].) Deliberation *48 thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision. The act supplies additional internal evidence that deliberative gatherings are “meetings,” however confined to investigation and discussion. Section 54952.6 defines the phrase “action taken.” (Fn. 3, supra.) This definition leads to two other provisions where this phrase, or an approximation of it, appears: the declaration of legislative intent in section 54950 and the misdemeanor declaration in section 54959 (fns. 2 and 3, supra.). In section 54950 the notion of action-taking is juxtaposed to that of deliberation, indicating that deliberation and action, however they may coalesce, are functionally discernible steps, both of which must be taken in public view. The misdemeanor penalty in section 54959, in contrast, is limited to a meeting “where action is taken.” Critics of open meeting laws have been troubled by the prospect of criminal prosecutions against public officials who make the wrong guess when confronted with an ambiguous situation. (See Comment, Open Meeting Legislation, 75 Harv.L.Rev. 1199, 1211 (1962); Comment, 54 Cal.L.Rev. supra, at p. 1662.) Apparently sharing this concern, the Legislature has made the criminal sanction narrower than the law’s declaration of intended coverage. Not every violation of the Brown Act is a violation of section 54959. The misdemeanor penalty is focused on the meeting where action is taken, not on the meeting confined to deliberation. The narrow, carefully designed criminal penalty evidences the act’s broader scope when no crime is involved, that is, when deliberation is unaccompanied by “action taken.” Section 54952 defines the “legislative body” of a local agency to include its committees.4 Boards of supervisors have investigatory powers which they may delegate to committees, *49 which in turn may “send for persons and papers.” (Gov. Code, §§ 25170-25171.) Without troubling the lexicographers, one recognizes a committee as a subordinate body charged with investigating, considering and reporting to the parent body upon a particular subject. Normally, committees investigate, consider and report, leaving the parent body to act. By the specific inclusion of committees and their meetings, the Brown Act demonstrates its general application to collective investigatory and consideration activity stopping short of official action.5 Extrinsic as well as intrinsic evidence of legislative intent impels rejection of a narrow interpretation. Tendencies toward secrecy in public affairs have been the subject of extensive criticism and comment. Such governmental phenomena as “managed” news, secret meetings and closed records are disparaged as inimical to the goals and needs of a self-governing nation.6 The suppression of © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 public information at the local government level in California was the subject of investigation by an Assembly Interim Committee on Judiciary, which submitted its report at the 1953 legislative session. (Progress Report to the Legislature, Assembly Interim Com. on Judiciary (1953) Reg. Sess.) pp. 13-62.) The committee’s recommendations included the proposed measure which later became the Brown Act. The report noted widespread evasion of existing open meeting statutes7 through unannounced “sneak” meetings and through indulgence in *50 euphemisms such as executive session, conference, caucus, study or work session, and meeting of the committee of the whole. (Ibid., pp. 21-23.) The report declared: “It is now apparent to this committee that there is a real need for legislative action. Legislative and administrative groups and officials through devious ways are depriving us, the public, of our inalienable right to be present and to be heard at all deliberations of governmental bodies wherein decisions affecting the public are being made.” (Ibid., p. 21.) In presenting and recommending the measure later known as the Brown Act, the committee stated: “The committee is of the opinion that there is a genuine and compelling need for legislative action of a nature designed to curb this misuse of democratic process by public bodies who would legislate in secret. Unless for proper security reasons, the public has the right to be present and to be heard during all phases of legislative enactment by any governmental agency. This right is a source of strength to our Country and must be protected at all costs.” (Ibid., p. 61.) In this area of regulation, as well as others, a statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices.8 As operative criteria, formality and informality are alien to the law’s design, exposing it *51 to the very evasions it was designed to prevent. Construed in the light of the Brown Act’s objectives, the term “meeting” extends to informal sessions or conferences of the board members designed for the discussion of public business. () The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting. () Defendants, nevertheless, contend that the occasion was a lawful exercise of the lawyer-client privilege existing between the supervisors and the county counsel, as their attorney; that the pending lawsuit to restrain striking and picketing by county-employed social workers furnished the occasion for exercise of the privilege.9 Defendants point out that the former law denied the privilege where persons other than the attorney and client were present; that section 952 of the new Evidence Code now extends the privilege to limited situations involving the presence of third persons.10 () Evidence Code section 952 confers the privilege upon information communicated “in confidence” to the lawyer and upon advice given by the lawyer. The privilege cannot be invoked where the client’s communication was not intended to be confidential. (City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 234235 [231 P.2d 26].) () Participants in the Elks Club luncheon testified at the preliminary injunction hearing. In substance they said that the luncheon took place because the labor representatives wanted to discuss the social workers’ strike and to ascertain whether a strike sanction by the central labor council would involve that body in the lawsuit. One supervisor testified that he had attended as a guest of the central labor council, but had no knowledge of the discussion topic until he arrived. Another supervisor testified that he had attended to ascertain the attitude of the central labor council regarding the strike litigation. A third supervisor filed an affidavit. None of these *52 supervisors stated that he or any other supervisor had said anything to the county counsel in confidence. None claimed attendance for the purpose of getting the county counsel’s legal advice and none claimed receiving any. If any communication passed between the supervisors and their attorney at the Elks Club luncheon, the record fails to reveal it. Where the privilege against disclosure is claimed, its opponent has the burden of proving nonconfidentiality. (Evid. Code, § 917.) Here, although a courtroom occasion occurred, the privilege agaist testifying was not claimed.11 The assertion appears belatedly, in the form of argument urging a legal characterization. There is no evidentiary basis at all for the characterization. The luncheon meeting of February 8, 1967, finds no shelter under the lawyer-client privilege. The trial court correctly concluded that it violated section 54953. () Aside from the statutory exceptions for national security and personnel matters, the preliminary injunction prohibits nonpublic meetings of three or more supervisors “for whatever purpose.” Defendants object to the breadth of the injunction, asserting that the Brown Act should not be construed to prevent conferences between the supervisors and the county counsel for the purpose of seeking and receiving confidential legal advice. Defendants rely upon an opinion of the Attorney General, © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 36 Ops. Cal. Atty. Gen. 175 (1960), holding that in narrowly limited situations, where a public discussion of legal problems would benefit the agency’s adversary and injure the public interest, the board members may meet privately with their attorney. Defendants’ position is supported by a brief filed by the County Counsel of Los Angeles County as amicus curiae. The Brown Act, specifically section 54953, broadly encompasses “all meetings.” Viewed as a statutory microcosm, its demand is forthright, offering no internal interstice for private lawyer-client consultations. It is not a microcosm, however, but one element in a structure of constitutional and statutory policies covering the powers, duties and procedures of local agencies of government. Another part of this legal structure is the privilege attaching to confidential lawyer-client communications. This privilege was for almost a century *53 expressed in Code of Civil Procedure section 1881, subdivision 2, and has now been recodified in the Evidence Code. () California decisional law assumes without discussion that the privilege is just as available to public agency clients and their lawyers as to their private counterparts. (Holm v. Superior Court (1954) 42 Cal.2d 500, 506-508 [267 P.2d 1025, 268 P.2d 722]; Jessup v. Superior Court (1957) 151 Cal.App.2d 102, 108-111 [311 P.2d 177].) Codifying this notion, the Evidence Code distinctly includes public agencies and entities among the clients who may assert the privilege.12 Traditionally the district attorney has served both as public prosecutor and as civil attorney for California counties and their officials. He fulfills this dual role in those counties which have not established separate civil law offices. (§§ 26520-26528.) When the office of county counsel is established by charter or by act of the supervisors under state law, that officer usually assumes the civil law functions as attorney for the county and its board of supervisors. (§§ 26529, 27640-27645.) Subject to charter restrictions, supervisors may also employ special counsel to furnish representation and advice in civil legal matters. (§§ 25203, 31001.) Plaintiffs do not dispute the availability of the lawyer-client privilege to public officials and their attorneys. They view it as a barrier to testimonial compulsion, not a procedural rule for the conduct of public affairs. The view is too narrow. () The privilege against disclosure is essentially a means for achieving a policy objective of the law. The objective is to enhance the value which society places upon legal representation by assuring the client full disclosure to the attorney unfettered by fear that others will be informed. (*54 Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 396 [15 Cal.Rptr. 90, 364 P.2d 266]; Holm v. Superior Court, supra, 42 Cal.2d at pp. 506-507; 8 Wigmore on Evidence (McNaughton rev. 1961) § 2291; Comment, Attorney-Client Privilege in California, 10 Stan.L.Rev. 297-300 (1958); Louisell, Confidentiality, Conformity and Confusion: Privileges in Federal Court Today, 31 Tulane L. Rev. 101 (1956).) The privilege serves a policy assuring private consultation. If client and counsel must confer in public view and hearing, both privilege and policy are stripped of value. Considered in isolation from the Brown Act, this assurance is available to governmental as well as private clients and their attorneys. Thus the structure of laws governing local public boards includes two separate substructures, one in the Government Code demanding open meetings, the other in the Evidence Code assuring confidential lawyer-client conferences. Each expresses a separate policy objective, but neither refers expressly to the other in terms of dominance or reconciliation. At this point we assume without deciding that the Evidence Code, enacted in 1965, merely recodified and continued the existing statutory, lawyer-client privilege of public agencies; that the Brown Act, adopted in 1953, is really the later of the two statutes. () When a later statute supersedes or substantially modifies an earlier law but without expressly referring to it, the earlier law is repealed or partially repealed by implication. (, ) The courts assume that in enacting a statute the Legislature was aware of existing, related laws and intended to maintain a consistent body of statutes. (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805 [249 P.2d 241]; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 93 [8 Cal.Rptr. 56]; 1 Sutherland, Statutory Construction (3d ed.) § 2012, pp. 461- 466.) Thus there is a presumption against repeals by implication; they will occur only where the two acts are so inconsistent that there is no possibility of concurrent operation, or where the later provision gives undebatable evidence of an intent to supersede the earlier; the courts are bound to maintain the integrity of both statutes if they may stand together. (Warne v. Harkness (1963) 60 Cal.2d 579, 588 [35 Cal.Rptr. 601, 387 P.2d 377]; Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176 [74 P.2d 252]; Smith v. Mathews (1909) 155 Cal. 752, 758 [103 P. 199]; see Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 603 [68 Cal.Rptr. 297, 440 P.2d 497].) *55 Also relevant when the seeming inconsistencies appear in separate codes is the rule declaring that the codes blend into each other and constitute a single statute for the purposes of statutory construction. (Pesce v. Department of Alcoholic Beverage Control (1958) 51 Cal.2d 310, 312 [333 P.2d 15]; © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 v. Vassar (1962) 207 Cal.App.2d 318, 322 [24 Cal.Rptr. 481].) () One of the provisions of the Brown Act, section 54958, declares its application to local legislative bodies “notwithstanding the conflicting provisions of any other state law.” Failing to designate what if any laws are superseded, such a clause has no greater force than a repeal by implication; it subordinates or repeals existing law only to the extent that the two laws are irreconcilable. (Penziner v. West American Finance Co., supra, 10 Cal.2d at pp. 174-175; 45 Cal.Jur. 2d, Statutes, § 69, p. 590; 1 Sutherland, op. cit., § 2013, pp. 466-468.) () The question, then, is whether the public meeting requirement of section 54953 abrogates by implication the statutory policy assuring opportunity for private legal consultation by public agency clients; or, in equivalent terms, whether the Brown Act supplies unmistakable evidence of a legislative intent to abolish that statutory policy. That policy is just as meaningful, as financially important, to public as to private clients. Public agencies are constantly embroiled in contract and eminent domain litigation and, with the expansion of public tort liability, in personal injury and property damage suits. Large-scale public services and projects expose public entities to potential tort liabilities dwarfing those of most private clients. Money actions by and against the public are as contentious as those involving private litigants. The most casual and naive observer can sense the financial stakes wrapped up in the conventionalities of a condemnation trial. Government should have no advantage in legal strife; neither should it be a second-class citizen. We reiterate what we stated in the supersedeas aspect of this suit, Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, supra, 255 Cal.App.2d at page 54: “Public agencies face the same hard realities as other civil litigants. An attorney who cannot confer with his client outside his opponent’s presence may be under insurmountable handicaps. A panoply of constitutional, statutory, administrative and fiscal arrangements covering state and local government expresses a policy *56 that litigating public agencies strive with their legal adversaries on fairly even terms. We need not pause for citations to demonstrate the obvious. There is a public entitlement to the effective aid of legal counsel in civil litigation. Effective aid is impossible if opportunity for confidential legal advice is banned.” Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistence on open lawyer-client conferences. In settlement advice, the attorney’s professional task is to provide his client a frank appraisal of strength and weakness, gains and risks, hopes and fears. If the public’s “right to know” compelled admission of an audience, the ringside seats would be occupied by the government’s adversary, delighted to capitalize on every revelation of weakness.13 A lawyer worth his salt would feel a sense of treachery in disclosing that kind of appraisal. (8 Wigmore op. cit. § 2291, p. 553.) To him its conduct in public would be shocking, unprofessional, unthinkable. He would prefer to fight the lawsuit to its bitter end. Frustration would blunt the law’s policy in favor of settlement, and financial imprudence might be a compelled path. As ex-lawyers, judges have been exposed to conditioning experiences which might induce inflation of the privilege’s value. Actually it poses competing values. Professor Wigmore has observed that its benefits are indirect and speculative; that, as a testimonial privilege, it is worth preserving but is nevertheless an obstacle to the investigation of the truth.14 In counterthrust to the values expressed in the “right to know” slogan, it permits an undeniable quantum of secrecy and, in overreaching hands, a potential tool of evasion. Implicit in its *57 abrogation by implication is the assumption that the California Legislature indulged in a knowing choice between these competing public interests; that it adopted the Brown Act with unmistakable intent to abolish the values inherent in the lawyer-client privilege of local boards of government. Evidence of such intent is by far too thin. It consists of the open meeting requirement of section 54953 and the declaration of legislative policy in section 54950 (fn. 2, supra). In requiring board members to deliberate and act in public, these do not inexorably embrace the board members in their roles as clients calling upon their attorney for legal advice. In declaring the public’s right to be informed, they do not necessarily propel the public’s legal adversary into the lawyer-client conference clad in the robes of good citizenship. In recommending the bill which became the Brown Act, the Assembly Interim Committee on Judiciary gave no clue that it had even considered the statutory lawyer-client privilege of public boards. Indeed, the committee professed no attempt to cope with the entire gamut of disclosure problems in local government.15 Parallel to the lawyer-client privilege is that of a public officer to refuse disclosure of communications made to him in official confidence when “[d]isclosure of the information is against the public interest. ...” (Evid. Code, § 1040, subd. (a) (b) (2), replacing former Code Civ. Proc., § 1881, subd. 5; see © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 supra, 151 Cal.App.2d at pp. 107-108.) The interim committee voiced no criticism of the latter privilege, although it too is a possible tool of official secrecy. Neither the Brown Act nor its history supplies undebatable evidence of a legislative intent to supersede the assurance of private legal consultation stemming from the statutory lawyer-client privilege. () At various legislative sessions after 1953 bills were introduced, but not passed, expressly amending the Brown Act to permit board members and their attorneys to confer on property acquisition or pending litigation. A recommendation to the same general effect was made by an interim committee *58 in 1965. (The Right to Know, 12 Assembly Interim Com. Report No. 10, Governmental Organization (1965), California Legislature, pp. 41-44.) The record and briefs point to the failure of these proposals as alleged evidence of the 1953 Legislature’s design to abrogate the public lawyer-client privilege. The unpassed bills of later legislative sessions evoke conflicting inferences. Some legislators might propose them to replace an existing prohibition; others to clarify an existing permission. A third group of legislators might oppose them to preserve an existing prohibition, and a fourth because there was no need to clarify an existing permission. The light shed by such unadopted proposals is too dim to pierce statutory obscurities. As evidences of legislative intent they have little value. (See Ambrose v. Cranston (1968) 261 Cal.App.2d 137, 143-144 [68 Cal.Rptr. 22]; Willard and MacDonald, The Effect of An Unsuccessful Attempt to Amend a Statute, 44 Cornell L. Q. 336 (1958).) () The two enactments are capable of concurrent operation if the lawyer-client privilege is not overblown beyond its true dimensions. As a barrier to testimonial disclosure, the privilege tends to suppress relevant facts, hence is strictly construed. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 396.) As a barrier against public access to public affairs, it has precisely the same suppressing effect, hence here too must be strictly construed. As noted earlier, the assurance of private legal consultation is restricted to communications “in confidence.” Private clients, relatively free of regulation, may set relatively wide limits on confidentiality. Public board members, sworn to uphold the law, may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law. Neither the attorney’s presence nor the happenstance of some kind of lawsuit may serve as the pretext for secret consultations whose revelation will not injure the public interest. To attempt a generalization embracing the occasions for genuine confidentiality would be rash. The Evidence Code lawyer-client provisions may operate concurrently with the Brown Act, neither superseding the other by implication. () Because the Brown Act did not abolish the statutory opportunity of boards of supervisors to confer privately with their attorney on occasions properly requiring confidentiality, the preliminary injunction is too broad. The preliminary injunction is modified by adding at its end a new paragraph 6, to read as follows: *59 “6. This preliminary injunction shall not prevent the Sacramento County Board of Supervisors from consulting privately with the county counsel or other attorney representing the board under circumstances in which the lawyer-client privilege conferred by sections 950 through 962 of the California Evidence Code may lawfully be claimed.” As so modified, the preliminary injunction order is affirmed. Each party is to bear its own costs on appeal. Pierce, P. J., and Regan, J., concurred. Footnotes 1 In this opinion statutory references will be to the Government Code unless otherwise indicated. 2 The full text of section 54950 declares: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” 3 Section 54952.6 states: “As used in this chapter, ‘action taken’ means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” Section 54959 provides: “Each member of a legislative body who attends a meeting of such legislative body where action is taken in violation of any provision of this chapter, with knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor.” * A hearing was granted by the Supreme Court on June 19, 1968. 4 Specifically, section 54952 provides: “As used in this chapter, ‘legislative body’ means the governing board, commission, directors or body of a local agency, or any board or commission thereof, and shall include any board, commission, committee, or other body on which officers of a local agency serve in their official capacity as members and which is supported in whole or in part by funds provided by such agency, whether such board, commission, committee, or other body is organized and operated by such local agency or by a private corporation.” The trial court limited the injunction to board and committee meetings of three or more members. At this point the injunction parallels an opinion of the Attorney General holding the public meeting requirement inapplicable to those committees composed of less than a quorum of the parent body (32 Ops. Cal. Atty. Gen. 240). That phase of the injunction is not in dispute. 5 In section 54955 the Brown Act provides for notice of adjourned or continued meetings. Section 54955.1, added in 1965, provides for the continuation of “hearings” in the same manner as continuation of “meetings.” This segmented terminology supplies a foothold for the argument that a hearing is not a meeting, thus is unaffected by the public meeting demand of section 54953. Instead of signifying exclusion, section 54955.1 points to the inclusion of meetings and hearings within a single concept, since it assures public notice and awareness of both. 6 See, for example, James Russell Wiggins, Freedom of Secrecy (1964 rev. ed.); Harold L. Cross, The People’s Right to Know (1953) (Columbia Univ. Press); Lectures on Communications Media (1954) Univ. of Mich. Law School; Pickerell and Feder, Open Public Meetings of Legislative Bodies-California’s Brown Act (1957) Legislative Problems, No. 7, Bureau of Public Administration, Univ. of Calif.; The Right to Know, 12 Assembly Interim Com. Report No. 10, Government Organization (1965) California Legislature; Comment, Access to Governmental Information, 54 Cal.L.Rev. 1650 (1966); Comment, Open Meeting Legislation, 75 Harv.L.Rev. 1199 (1962); Parks, Applying the Right to Know Under the Constitution, 26 Geo.Wash.L.Rev. 1 (1957). 7 See Government Code section 25080, governing county boards of supervisors, section 36808, relating to city councils of general law cities, and Education Code section 966, relating to school boards, all having statutory predecessors which antedated the Brown Act and all requiring meetings to be public. 8 Members of public boards bring to bear upon their ultimate decisions a range of impressions, experiences and beliefs, some gained individually, others collectively. The writer of the comment in 54 California Law Review 1650, 1651, observes: “There is a spectrum of gatherings of agency members that can be called a meeting, ranging from formal convocations to transact business to chance encounters where business is discussed. However, neither of these two extremes is an acceptable definition of the statutory word ‘meeting.’ Requiring all discussion between members to be open and public would preclude normal living and working by officials. On the other hand, permitting secrecy unless there is formal convocation of a body invites evasion.” Although one might hypothesize quasi-social occasions whose characterization as a meeting would be debatable, the difference between a social occasion and one arranged for pursuit of the public’s business will usually be quite apparent. 9 The injunction suit is described in some detail in In re Berry (1968) 68 Cal.2d 137 [65 Cal.Rptr. 273, 436 P.2d 273]. 10 Section 952 of the Evidence Code provides: “As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes advice given by the lawyer in the course of that relationship.” 11 At the preliminary injunction hearing the supervisors claimed the privilege for official information where disclosure would injure the public interest (Evid. Code, § 1040), but not the attorney-client privilege. The claim was overruled by the trial judge. The ruling is not assailed on appeal. 12 Evidence Code section 951: “As used in this article, ‘client’ means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 Sacramento Newspaper Guild v. Sacramento County Bd. of..., 263 Cal.App.2d 41... 69 Cal.Rptr. 480 his professional capacity, and includes an incompentent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.” Evidence Code section 175: “ ‘Person’ includes a natural person, firm, association, organization, partnership, business trust, corporation, or public entity.” Evidence Code section 200: “ ‘Public entity’ includes a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic.” See Law Revision Commission Comment following Evidence Code section 951; also, 6 Cal. Law Revision Com. Rep. p. 221. 13 That the public’s adversary in litigation may wrap himself in the banner of the public’s right to know is illustrated by the following observation in Jessup v. Superior Court, supra, 151 Cal.App.2d at pages 107-108: “Here Sanders is not desirous of seeing these reports as a citizen primarily interested in protection of the public; he is desirous of seeing them in the hope that he may gain some advantage therefrom in his contemplated suit against the city, making disclosure a possible disadvantage to the city. Thus the public welfare requires that inspection be postponed until disclosure will no longer be of disadvantage to the city.” 14 Wigmore, op. cit., § 2291, p. 554; see Jencks v. United States (1957) 353 U.S. 657, 670-672 [1 L.Ed.2d 1103, 1113-1114, 77 S.Ct. 1007]; Carrow, Governmental Nondisclosure in Judicial Proceedings, 107 U.Pa. L.Rev. 166 (1958); Timbers and Cohen, Demands of Litigants for Government Information, 18 U. Pittsburgh L.Rev. 687 (1957). 15 Referring to the bill it was recommending, the committee stated: “While such a measure would not provide an answer to all the needs of legislation aimed at cleansing this evil of suppression of public information by public bodies, from our government, it is felt it will effectively plug the most apparent loopholes in the existing laws as they now relate to meetings at which legislative action may be taken.” (Progress Report to the Legislature, 1953 Reg. Sess., by Assembly Interim Com. on Judiciary, p. 61.) End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 Times Pub. Co. v. Williams, 222 So.2d 470 (1969) KeyCite Red Flag - Severe Negative Treatment Overruling Recognized by Abdool v. Bondi, Fla., June 12, 2014 222 So.2d 470 District Court of Appeal of Florida, Second District. TIMES PUBLISHING COMPANY, etc., et al., Appellants, v. William WILLIAMS et al., Appellees. No. 68—369. May 9, 1969. Synopsis Action to enjoin school board from holding closed meetings. The Circuit Court for Pinellas County, William A. Patterson, J., entered a judgment dismissing complaint with prejudice and the plaintiff appealed. The District Court of Appeal, Liles, C.J., held, inter alia, that with one narrow exception relating to attorneyclient relationship, Legislature has intended that provisions of open meeting statute be applicable to every assemblage of board or commission governed by act at which discussion, deliberation, decision or formal action is to be had or taken relating to, or within the scope of, official duties or affairs of such body; that personnel matters do not enjoy any insulation from operation of statute; and that if school board’s threat to hold future closed meetings was real and imminent, school board could be enjoined from holding such meeting in violation of statute. Reversed. Attorneys and Law Firms *471 Baynard, McLeod & Nelson, St. Petersburg, for appellants. McClure & Turville, St. Petersburg, for appellees. *472 Earl Faircloth, Atty. Gen., T. T. Turnbull and Arthur C. Canaday, Asst. Attys. Gen., Tallahassee, amici curiae. Opinion LILES, Chief Judge. The 1967 session of the Florida Legislature enacted Chapter 67—356, Laws of Florida, 1967,1 which became effective July 1, 1967, and appears in Florida Statutes as s 286.011, F.S.A. It has appropriately been labeled Florida’s ‘Government in the Sunshine Law.’ Appellants, Times Publishing Company, Charles Patrick and Betty Orsini, filed a complaint in the Circuit Court of Pinellas County alleging that the Pinellas County School Board had held various secret meetings during 1967 and 1968 subsequent to the enactment of the above statute. The complained that these meetings were in violation of this statute and asked for an injunction enjoining the Board from holding future meetings from which the public was to be excluded. At the conclusion of appellants’ testimony, the trial judge dismissed the complaint with prejudice and refused to grant appellants an injunction. This appeal followed. It is urged by appellants that under the aforesaid Chapter 67—356, injunctive relief is available to the members of the public to enjoin and prohibit the Board of Public Instruction of Pinellas County, Florida, from holding meetings at which official acts are to be taken if the public is to be excluded. They also urge that whenever the Board meets ‘informally’ for any purpose relating to the operation of schools Richard, Fla.1950, 47 So.2d 543, merely it is violating the statute and should be enjoined from holding such a secret meeting. The Attorney General of the State of Florida asked for and was granted permission to file a brief and argue amicus curiae in this matter. Prior to the enactment of Chapter 67—356, Florida already had an open meeting statute, s 165.22, F.S.A., relating to the meetings of city councils. This section provides that as to city or town governing bodies, ‘all meetings * * * shall be held open to the public.’ There is no language in that act referring to ‘official acts’ or ‘formal action,‘ as there is in the act before us; nor is there any provision relating to injunctive relief as here. In the only case construing s 165.22, F.S.A., our Supreme Court in Turk v. Richard, Fla.1950, 47 So.2d 543, merey limited the application of the ‘All meetings’ provision thereof to ‘such formal assemblages of the (city) council sitting as a joint deliberative body as were required or authorized by law to be held for the transaction of official municipal business * * *.’ It was therein noted that such a ‘formal assemblage’ existed when the *473 governing body was sitting ‘as a board of entity * * *, for the purpose of joint Discussion, decision and Action with © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Times Pub. Co. v. Williams, 222 So.2d 470 (1969) respect to municipal affairs * * *.’ (Italics supplied.) ‘For at no other type of gathering,‘ it was said, ‘whether attended by all or only some of the members of the city council, could any Formal action be taken or Agreement be made that Could officially bind the municipal corporation * * *.’ (Italics supplied.) That case really only stands for the proposition therefore, that a ‘meeting,‘ within the purview of the act, is a joint assemblage at which ‘formal action’ Could be taken, though not necessarily certain to be taken. Furthermore, the Turk case does not limit application of the ‘All meetings’ provision only to those ‘formal’ assemblages at which the ritual of voting to confirm or ratify an official decision is ceremoniously carried out, or to those occasions on which some formal execution is performed to make a document binding or legally affective. The legislature is presumed to have been aware of the ruling case law as it relates to the subject matter of a statute, and to have drawn it with those cases in mind. It is obvious that the legislature intended to extend application of the ‘open meeting’ concept so as to bind every ‘board or commission’ of the state, or of any county or political subdivision over which it has dominion and control. In so doing, it expressly provided that the act related to ‘All meetings (of the governing bodies involved) * * * at which Official acts are to be taken * * *’ (italics supplied), and as One of the remedies for a violation thereof it effectively voided any ‘formal action’ taken by such bodies at closed meetings. There is nothing in the language of the act from which it can be said that the legislature intended to avoid or limit the holding in Turk. As far as it goes, the Turk case is helpful as it relates to the nature of the meetings covered by such an act, and insofar as it defines ‘meetings.’ But the question still remains as to just what is meant by the terms ‘official acts’ and ‘formal action’ which were added in Chapter 67—356; and the Turk case cannot help us there because these phrases were not in the act before that court. However, in Walling v. Carlton, 1933, 109 Fla. 97, 147 So. 236, the court defined an ‘official act’ as, ‘any act done by the officer in his official capacity under color and by virtue of his office.’ This case is also helpful, but the court there was concerned with an Affirmative act of the officer involved, and does not fully answer the question before us, because it does not talk about Passive acts or about non-formal acts such as: the Act of discussion; the Act of deliberating; the Act of deciding; or the Act of listening to reports or expert advice about which an official might thereafter be charged with actual knowledge. These passive and non-formal Acts are certainly ‘official’ if they relate to the affairs and duties of that boty; yet they couldn’t be said to constitute ‘formal action’ of the body. Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire Decision-making process that the legislature intended to affect by the enactment of the statute before us. This act is a declaration of public policy, the frustration of which constitutes irreparable injury to the public interest. Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an ‘official act,‘ an indispensable requisite to ‘formal action,‘ within the meaning of the act. We think then that the legislature was obviously talking about two different things by the use of these phrases, and we can’t agree with appellee that ‘official acts’ are limited to ‘formal action,‘ or that they are synonymous. Clearly the legislature must have intended to include more than the mere affirmative formal act of voting on an issue or the formal execution of an *474 official document. These latter acts are indeed ‘formal,‘ but they are matters of record and easily ascertainable (though perhaps ex post facto), notwithstanding such legislation; and indeed the public has always been aware sooner or later of how its officials voted on a matter, or of when and how a document was executed. Thus, there would be no real need for the act if this was all the framers were talking about. It is also how and why the officials Decided to so act which interests the public. Thus, in the light of the language in Turk, supra, and of the obvious purpose of the statute, the legislature could only have meant to include therein the Acts of Deliberation, discussion and Deciding occurring prior and leading up to the affirmative ‘formal action’ which renders official the final decisions of the governing bodies. It is our conclusion, therefore, that with one narrow exception which we will discuss later, the legislature intended the provisions of Chapter 67—356 to be applicable to every assemblage of a board or commission governed by the act at which any discussion, deliberation, decision, or formal action is to be had, made or taken relating to, or within the scope of, the official duties or affairs of such body. This is the latest legislative expression on the subject; and if it intends to qualify this mandate insofar as it may impair the proper exercise of certain other specific duties of such governmental bodies,2 it can expressly do so either as an amendment to the instant act or in supplementary legislation specifically relating to such other duties. The next question to be decided is whether there may be any exception to the open meeting mandate of the act. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Times Pub. Co. v. Williams, 222 So.2d 470 (1969) First of all, as has been noted, the act on its face provides for no exceptions; and unless there is a constitutional impediment to such a mandate it is conclusive. Nevertheless, appellee takes the position that it may meet privately behind closed doors, notwithstanding the act, to discuss matters relating to school personnel or to go into secret consultation with its attorney on all legal matters. Concerning personnel matters, it contends that innocent school personnel may be ruined for life or their character assassinated if hearings relating to charges of misconduct are aired publicly and prove to be ill-founded. Be that at it may, the act is regulatory in nature and deals with the powers and discretion of certain governmental agencies. It is not in and of itself concerned with any rights or privileges of third parties dealing with such agencies. Any rights or privileges these third parties might have must be found elsewhere, and the governmental agencies involved cannot rely on such rights or privileges or third parties to extend their own powers and discretion regarding closed meetings contrary to the clear prohibition of the act. Appellee submits also that the public interest is best served in many instances when matters relating to the hiring of school personnel can be discussed privately in an atmosphere conducive to uninhibited inquiry into such persons’ background, qualifications, character, and so forth. Regardless of the wisdom of its position and regardless of good motive on its part, the power or discretion to decide questions of closed meetings for such purposes is no longer the appellee’s to exercise. We are certain that the public-at-large is as interested in the good quality of school personnel as is appellee; and it must always be kept in mind that appellee, no less than any other governmental body, is an agency of the public-at-large, and possesses just so much delegated authority and privileges as the public (in this case through the constitutional vehicle of legislation) chooses to give it. The public has chosen to deny any privilege or discretion in appellee and similar governmental bodies to conduct closed meetings. *475 Furthermore, ‘personnel matters’ are not sacred nor legally privileged, nor do they enjoy any insulation from legislative control. Here we are aided by the history of the act’s passage, and conclude that the legislature Specifically intended to include ‘personnel matters’ within the ‘open meetings’ mandate of the act. After the Senate had passed Senate Bill 9, which became Chapter 67— 356, the House of Representatives informed the Senate that they had passed the bill with several amendments. One amendment sought by the House read as follows: ‘This act shall not apply to hearings involving individuals charged with violation of laws or regulations respecting employment.’ I Journal of the House 959 (June 5, 1967). The Senate refused to concur in this amendment and returned the bill to the House where it subsequently passed it in its present form. The relationship of the Board with its attorney stands on a different footing. The attorney-client relationship is a unique one under the law. Within this relationship both the attorney and the client enjoy rights and privileges independent of each other. The privilege the client enjoys is one of confidentiality. The privilege of confidentiality can be waived and the effect of Chapter 67—356 has been to waive the privilege on behalf of the board. The clear import of the ‘All meetings’ provision of this statute is that the public, acting through the legislature, has waived the privilege with regard to the enumerated public bodies. There is one aspect of the attorney-client relationship, however, in which there are obligations which bind the attorney; and the aspect involves his duties in the conduct of pending or impending litigation. His professional conduct in these matters is governed by the Canons of Ethics which are promulgated by the Supreme Court under the integrated Bar system in this state. Section 23 of Art. V of the Florida Constitution, F.S.A., gives ‘exclusive’ jurisdiction to the Supreme Court in the disciplining of attorneys; and this disciplinary power necessarily includes the exclusive province to proscribe rules of professional conduct the breaching of which renders an attorney amenable to such discipline. The legislature therefore, is without any authority to directly or indirectly interfere with or impair an attorney in the exercise of his ethical duties as an attorney and officer of the court. See Florida Bar v. Massfeller, Fla.1965, 170 So.2d 834; State ex rel. Arnold v. Revels, Fla.1959, 109 So.2d 1; Preamble, para. (b), Integration Rule of The Florida Bar, Florida Rules of Court, 1969, 32 F.S.A. This is not to say, of course, that it may not condemn unethical or criminal conduct, but the attorney has the right and duty to practice his profession in the manner required by the Canons unfettered by clearly conflicting legislation which renders the performance of his ethical duties impossible. He cannot be put in the untenable position of choice between a violation of a statute or a violation of a specific Canon insofar as they Clearly conflict. We can perceive of the possibility of instances when there may be conflict between the two as they may relate to privacy and confidentiality in the handling of pending or anticipated litigation. This is brought into focus, for example, if we consider the potential effect of extending the ‘open meetings’ concept to a consultation between a governmental agency and its attorney involving settlement or adjustment of a matter in pending or contemplated litigation. Such settlement or © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Times Pub. Co. v. Williams, 222 So.2d 470 (1969) adjustment, in the professional opinion of the attorney, may be fair and favorable to the public and, thus, under Canon No. 8, it would be his duty to so advise. It may further be the professional opinion of the attorney, in the best interests of the public (his real client), that such consultation be private and confidential so as not to jeopardize the settlement. Indeed, he may well feel that such advice would be useless if revealed in such a case, and his duty to so advise would be completely *476 compromised by a requirement that this advice be imparted in public. The client may have the right to accept or reject the judgment that settlement is called for, but it does not have the right to render impossible the attorney’s duty to so advise; nor does the legislature have the authority to render this judgment sterile. The attorney’s dilemma in the face of such legislation is obvious. We emphasize that what we say here is limited only to that area of the attorney-client relationship in which the ethical obligations of the attorney clearly conflict with the dictates of this statute. The rights and privileges of confidentiality belonging to the client, however, have been waived by Chapter 67—356. It is our conclusion, therefore, that the legislature is fully aware of its constitutional limitations and did not intend, by the enactment of Chapter 67—356, to place attorneys in a position of having no alternative but to violate the Canons of Ethics. We hold also, however, that since the public has waived any privilege of confidentiality it may have had by virtue of such relationship, the act does not permit private consultation between its agency and the attorney in any other circumstances except those narrowly outlined above.3 We now come to the specific injunctive relief prayed for here. Injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is a real and imminent danger of irreparable injury. Statutory authority for such writs, as in the act before us, are not uncommon; but it must be remembered that such writs are in the first instance judicial writs. If such statutes purport to give the circuit courts injunctive power they are ineffectual, since those courts are otherwise vested with such powers under the constitution, s 6(3) Art. V. Constitution of Florida; and if they purport to dictate to such courts when, how or under what conditions injunctions should issue they would constitute an unlawful legislative infringement on a judicial function. On the other hand, we cannot presume that the legislature employed useless language. So if the provision granting jurisdiction to the circuit courts to issue injunctions to enforce this act is to be given any legal effect, it must be said that it is the equivalent of a legislative declaration that a violation of the statutory mandate constitutes an irreparable public injury; and we are aware of no legal barrier to such a legislative proclamation concerning the subject matter of the act before us. The effect of such a declaration in a subsequent judicial proceeding, then, would be that one of the requisites for a writ of injunction need not be proven, i.e., an irreparable injury; and a mere showing that the statute has been or is clearly about to be violated fully satisfies such requirement. Here, the evidence clearly indicates that appellee met in closed meetings in violation of Chapter 67—356. Further, such meetings were held under such circumstances as to manifestly indicate that appellee intended, in the future, to hold other closed meetings involving the same matters. As noted earlier, appellee maintains here that such meetings are outside the purview of the act, and appellee intends in the future to meet behind closed doors in the two situations which it claims exempt from the act. We hold, however, that it is without authority to so meet, with the one narrow exception as noted above, i.e., where public consultation with its attorney regarding pending or impending litigation would force him to violate the *477 Canons of Ethics as promulgated by the Supreme Court. Thus, if the threat to so meet is hereafter real and imminent appellee may be enjoined, since there obviously is no adequate remedy at law. In view of the foregoing the judgment appealed from is reversed and the cause is remanded for proceedings consistent with this opinion. Reversed. PIERCE and McNULTY, JJ., concur. All Citations 222 So.2d 470 Footnotes 1 ‘Section 1. All meeting of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Times Pub. Co. v. Williams, 222 So.2d 470 (1969) official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting. The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizens of this state. Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation or any political subdivision who violates the provisions of this act by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.’ 2 E.g., the performance of quasi-judicial functions. 3 We note in passing that an attorney who represents a public body such as covered undr this statute is an officer of the court and a public figure himself, and we will not assume that he will abuse the above exception and allow the discussions in a properly held secret meeting to include any matters not specifically included in this aspect of the attorney-client relationship. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5