Press association attorney: Yes, council members likely violated Open Meetings Law

An attorney for the Louisiana Press Association says council members who worked behind the scenes to develop maps for new city and parish council districts and had ongoing discussions to get a fellow member on board may have violated the state’s Open Meetings Law.

“If public officials are deciding outside of public view an issue that is supposed to be decided at a public meeting, that is absolutely a violation of the spirit and the letter and the intent of the Open Meetings Law,” says attorney Scott Sternberg of Sternberg, Naccari & White in New Orleans. “The whole point is that you get to see how people are going to vote at the meeting. You’re supposed to be able to see why they voted that way. Otherwise everybody would just come out from behind the curtain and say this is the decision. That’s not how that works.”

Sternberg reviewed for The Current a memo sent by Attorney General Jeff Landry’s office to attorney Lane Roy, who represented local businessman and parish council candidate Keith Kishbaugh in an unsuccessful lawsuit to force a re-vote on last year’s charter amendments that split the currently consolidated council into separate city and parish bodies. Landry’s office had intervened in the suit — which challenged the vote over errors in the city council district map descriptions — on behalf of the secretary of state.

In the memo, dated July 8, the Monday after the Supreme Court declined to hear the case, Landry’s office turned over to Roy a cache of text messages the AG had acquired via a public records request to Lafayette Consolidated Government. On May 9, a day after losing the court battle in the 15th Judicial District, Landry’s office made an extraordinary move, filing a public records request for emails and text messages among council members and administrators with keywords “Hefner,” “charter,” “map,” “term,” “limit” and “election.” In an email to attorney Roy that included the memo, Assistant Attorney General Tom Jones writes that the office thought “you or your client might have an interest in those documents.”

The first outlet to publish some of the texts, before the memo was leaked to local media, was the conservative activist group Citizens for a New Louisiana, which opposed the charter split and still hasn’t given up the fight, recently seeking to recruit plaintiffs to file a federal suit. Public records reveal it was CNL and the Lafayette Parish Republican Executive Committee that in March tapped state Sen. Bob Hensgens of Abbeville to ask Landry to opine on whether the charter problems could be remedied by ordinance. When the AG came back with an opinion calling for a new election, the council bucked the AG and sided with LCG’s attorneys, passing an ordinance to fix the discrepancies. Landry went on the defensive, hitting the airwaves to chide the council and eventually joining Kishbaugh’s suit. 

Landry stayed on the warpath after losing the legal battle, decrying the decision in public statements.

In its final response to Landry’s public records request delivered two months later, LCG turned over numerous pages of text messages, mainly conversations between the three councilmen who led the charter effort — Kenneth Boudreaux, Bruce Conque and Jay Castille — and two members of the pro-split group Fix the Charter PAC, Kevin Blanchard and Carlee Alm-LaBar. Alm-LaBar, who is no longer affiliated with the PAC, which spearheaded the public buy-in effort to create two councils, is running for mayor-president. Much of the discussions in those texts center on plans for creating two majority-minority districts on the city council and the trio’s inability to get Councilman Pat Lewis to come on board with the changes.

In the memo alleging state law violations, the AG cites discussions to ensure Councilman Kevin Naquin would be in town for key votes, the group’s efforts to inform and win Lewis’s support and Blanchard asking Conque whether council members Nanette Cook and Liz Hebert “have an idea of what’s coming,” stating the law “specifically forbids polling in an informal setting.”

The AG’s office doesn’t offer further evidence that the council members discussed the matter with Cook and Hebert or asked for their support.

“This informal polling of council members about government business outside the public’s eye could also be considered a walking quorum,” the memo states, noting that a walking quorum is a “device used to circumvent the Open Meetings Law so as to allow a quorum of a public body to discuss an issue through the use of multiple discussions of less than a quorum.”

“I’m not sure this is a walking quorum in the traditional sense of that definition, but it’s very questionable,” Sternberg says of the examples offered up by the AG’s office. “It is most likely polling,” he says.

The AG won’t be taking legal action, as the memo to Roy says the time for enforcement, i.e., a lawsuit, has long passed. In fact, in an odd twist to this story, Landry himself is now trying to distance himself from the leaked memo. Landry told KATC TV-3 Tuesday that the release of the memo is “being taken out of context.”

“[I]t evidently is being twisted around into something that it’s not,” he told the station without explanation.

Landry said the memo was intended for internal purposes but that his office gave it to Roy as part of its cooperation with the other plaintiffs involved in the lawsuit.

“We are not investigating,” Landry told KATC. “We never received a complaint that they were violating the Open Meetings Law. … And so for us, the matter is really closed.”

The Acadiana Advocate reported Wednesday afternoon that Landry, in what appears to be an even more desperate attempt to disassociate himself from a memo his own office produced, claims to have been “drug into [charter opponents’] political garbage” and made part of a “tabloid story.”

“The real recourse is that you have to redo the meeting,” Sternberg offers, acknowledging that window has likely closed as well.

Still, the councilmen accused of wrongdoing have asked LCG’s legal department for an opinion on whether they violated the law. Conque says he followed up with LCG attorney Paul Escott Tuesday afternoon and was told the allegations in the AG memo are still being researched. 

Fix the Charter PAC is pushing back hard on the AG’s memo, yesterday releasing all of the text transcripts the AG obtained from LCG (the AG’s memo included only excerpts from the text cache). 

“We offer our opinion that the release of the text messages by the Attorney General’s office was a political hack job, intended to smear the individuals who fought valiantly and in good faith to bring fair representation to the City and Parish of Lafayette,” the organization said in a press release. “In other words, after their attempts to sabotage the Charter amendments were rejected by the district court, appellate court and supreme court, they decided to poison the well. We reject sour grapes, we reject the politics of mudslinging, and we will continue to fight for what we believe will improve our community.”

The group goes on to say that the AG’s office itself has previously opined that “[t]here is nothing in the law which prohibits a council member from relaying his or her opinion or the opinion of a constituent to another council member, or even multiple council members, outside of an open meeting through electronic means.”

Blanchard, a former reporter who once practiced law, says there was never any intention to stymie public debate, and he does not think any laws were broken. “If the spirit of the law is we want there to be robust public debate, this has been one of the most debated, hotly contested issues in the last 10 to 15 years of Lafayette,” he tells me.

“I’ve talked to a lot of lawyers in the last few days to ask what could have happened differently, and I get a different answer from every lawyer, everything from never put anything into a text message to two councilmen who see each other on the street should turn the other way,” Blanchard says. In his experience as a reporter, Blanchard says he always found the state’s Public Records Act to be very clear, but some aspects of the Open Meetings Law to be “incredibly vague” — an assessment Sternberg agrees with when it comes to polling.

“Don’t we just want our councilmen to have conversations together, not in a quorum, not in a way that would violate the law, obviously?” he asks. “If a group of folks don’t understand what the rules are, let’s provide clarity for that,” Blanchard suggests.

“I think the attorney general could probably do everyone in Louisiana a big service if he could turn this into a learning moment rather than just kind of throwing bombs from the sidelines.”