DEEP SOUTH CENTER FOR * NO. 2019-CA-0774 ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS, * JUSTICE AND BEYOND, 350 COURT OF APPEAL NEW ORLEANS, SIERRA * CLUB, MR. THEODORE FOURTH CIRCUIT QUANT AND MS. RENATE * HEURICH STATE OF LOUISIANA ******* VERSUS
THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE, TELECOMMUNICATIONS AND TECHNOLOGY COMMITTEE OF THE 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
CONSOLIDATED WITH: CONSOLIDATED WITH:
DEEP SOUTH CENTER FOR NO. 2019-CA-0775 ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS, JUSTICE AND BEYOND, 350 NEW ORLEANS, SIERRA CLUB, MR. THEODORE QUANT AND MS. RENATE HEURICH
VERSUS
THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE, TELECOMMUNICATIONS AND TECHNOLOGY COMMITTEE OF THE 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 APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03843, DIVISION “I-14” Honorable Piper D. Griffin, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Dale N. Atkins)
Monique C. Harden DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE 9801 Lake Forest Blvd. New Orleans, LA 70127
William Patrick Quigley LOYOLA UNIVERSITY - SCHOOL OF LAW 7214 St. Charles Avenue Box 902 New Orleans, LA 70118
Alexander "Sascha" Bollag GREEN JUSTICE LEGAL 540 Broadway Street, Room 304 New Orleans, LA 70118
Susan Stevens Miller EARTHJUSTICE 1625 Massachusetts Avenue, N.W. Suite 702 Washington, DC 20036
COUNSEL FOR PLAINTIFF/APPELLEE
Richard C. Stanley W. Raley Alford, III Kathryn W. Munson STANLEY, REUTER, ROSS, THORNTON & ALFORD, L.L.C. 909 Poydras Street Suite 2500 New Orleans, LA 70112 Corwin M. St. Raymond Deputy City Attorney William R. H. Goforth Assistant City Attorney Donesia D. Turner Senior Chief Deputy City Attorney Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112
Adam J. Swensek Executive Counsel NEW ORLEANS CITY COUNCIL 1300 Perdido Street, Room 1E6 New Orleans, Louisiana 70112
Timothy S. Cragin Harry M. Barton ENTERGY SERVICES, INC. 639 Loyola Avenue L-ENT-26E New Orleans, LA 70113
James M. Garner Debra J. Fischman Stuart D. Kottle SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street Suite 2800 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED IN PART AND REVERSED IN PART FEBRUARY 12, 2020 Appellants, Entergy New Orleans, LLC (“Entergy”) and The Council of the
City of New Orleans (the “Council”), appeal the trial court’s June 14, 2019
judgment voiding the Council’s March 8, 2018 decision to adopt Resolution R-18-
65 (the “Resolution”), which granted Entergy authorization to build the New
Orleans Power Station (the “NOPS”) in New Orleans East due to the violations of
the Open Meetings Law, La. R.S. 42:11, et seq. that occurred at the Council’s
February 21, 2018 Utility, Cable, Telecommunications, and Technology
Committee (the “Committee”) meeting. For the reasons that follow, we affirm the
decision of the trial court in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2016, Entergy filed an initial application with the Council for
authorization to build the NOPS. The Council established Council Docket No. UD-
16-02 to consider the application. The Council set a procedural schedule for
Entergy’s application, which directed, among other things, that Entergy hold public
meetings on the NOPS to give information to members of the public and provide
the public an opportunity to comment. The Council adopted another resolution on
August 10, 2017, which ordered an additional public hearing to be held in the
1 Council Chamber on October 16, 2017.1 Several public interest groups intervened
as parties to the Council Docket No. UD-16-02, including Deep South Center for
Environmental Justice, 350 New Orleans, and the Sierra Club.
Following the completion of the procedural schedule under the Council
Docket No. UD-16-02, the Committee met on February 21, 2018, to consider the
Resolution to construct the NOPS. If approved by the Committee, the Resolution
would then be recommended to be considered by the full Council. An agenda
published five days prior to the meeting stated that each party to the proceeding
would be given fifteen minutes for closing argument, and each non-party would be
allowed two minutes for comment. However, while supporters of Entergy (who
were later discovered to be actors paid to attend the meeting and show support for
Entergy) were given preferential access to the meeting room, approximately fifty
to sixty members of the public were prohibited from entering the meeting due to
purported limited space. The procedures outlined in the agenda regarding who was
allowed to speak at the meeting were not followed. Representatives of Entergy,
which was a party to the proceeding, were allowed to give public comment during
the portion of the meeting reserved for non-party comment, while representatives
of other interested parties did not give a comment due to their belief that it was
prohibited by the agenda. At the conclusion of the meeting, the Committee voted
four-to-one to refer the Resolution to the full Council.
1 The October 16, 2017 meeting is not before this Court on appeal. However, there were several members of the public who attended this meeting, and not all those who attended were able to enter the meeting. Appellees argue that, because many members of the public were prohibited from entering the meeting room due to limited space while Entergy supporters were seemingly allowed immediate entry into the meeting on October 16, 2017, the Council should have anticipated the interest in Entergy’s application to build the NOPS, and planned accordingly for the Committee and Council meetings.
2 A full Council meeting was held on March 8, 2018. Once again, there was a
large attendance at the meeting, and some attendees were not given immediate
access due to limited space. However, unlike the Committee meeting, all those
who wished to observe the meeting and provide comments were eventually given
an opportunity to do so. At the conclusion of the meeting, the Council voted six-to-
one to approve the construction of the NOPS.
On April 19, 2018, Deep South Center for Environmental Justice, VAYLA
New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore
Quant, and Ms. Renate Heurich (collectively, the “Appellees”) filed a Petition to
Enforce the Louisiana Open Meetings Law, For Declaratory Judgment, Injunction,
Attorneys’ Fees and Costs, and Memorandum in Support (“the Petition”) in
Orleans Parish Civil District Court. The Appellees asked the trial court to declare
that the February 21, 2018 Committee meeting and March 8, 2018 Council
meeting violated Open Meetings Law; to declare the Resolution of the March 8,
2018 meeting void; and to enjoin Appellants from constructing the NOPS.
Appellees alleged that, because members of the public were prevented from
entering the meeting for observation and comment and supporters of Entergy were
given preferential access to the meetings, the Open Meetings Laws were violated at
both the Committee and the Council meetings. As attachments to the Petition,
Appellees included the affidavits of several individuals who attested to being
prevented from observing the meetings and providing comment after being told
there was no available space, while also seeing representatives of Entergy being
allowed to enter the meeting room. The affidavits attached to Appellees’ Petition
also included accounts from individuals who claimed they were made to stand in
the hallway outside the Committee meeting for several hours and were threatened
3 with arrest by security guards if they attempted to enter the meeting. An affidavit
of Ms. Heurich, one of the Appellees, stated she attended the Committee meeting
and was told there was no available space in the meeting room, but when she snuck
past security and entered the room, she was made to leave, even though she
observed approximately thirty empty seats inside.
Appellees stated that the agenda for the Committee meeting was changed
while the meeting was in progress, in violation of the Open Meetings Law because
representatives of parties to Council Docket No. UD-16-02 were allowed to speak
during the public comment period at the Committee meeting despite the agenda
expressly prohibiting this. They also alleged that the agenda for the Council
meeting did not provide a sufficiently specific description of the Council’s
consideration of the Resolution. On July 7, 2018, Appellees filed an Amended
Petition alleging that there were paid actors present at the Committee meeting who
prevented community members from entering the meeting and making comments,
which was also a violation of Open Meetings Law.
The Council answered the Petition, arguing that both the Committee meeting
and the Council meeting complied with the Open Meetings Law as both were open
to the public, were streamed live for concerned people to watch online, and
allowed for several hours of public comment. The Council argued that the Open
Meetings Law does not require that every single person who wishes to observe a
meeting of a public body be able to observe it and be present, only that the
meetings be reasonably open to the public. The Council further asserted the
meetings were reasonably open, but that the rooms in which the meetings were
held simply could not accommodate the amount of people who were present. They
argued that security was used to keep the meeting from being disrupted and to
4 ensure adherence to fire codes. The Council also argued that voiding the
Resolution would be a disservice to the public interest because of the City’s need
for the NOPS.
A hearing on Appellees’ Petition was held on July 19, 2018. At the
conclusion of the hearing, the trial court took the matter under advisement. After
several delays,2 the trial court rendered judgment on June 14, 2019, in favor of
Appellees, declaring the Resolution void because the policy behind the Open
Meetings Law was not properly adhered to. The trial court found that actions by
Entergy amounted to Open Meetings Law violations at the Committee meeting on
February 21, 2018, which the trial court stated was a “necessary component” in the
Council’s adoption of the Resolution at the Council meeting on March 8, 2018, and
which rendered the Resolution void. The trial court found no violations occurred at
the Council meeting.
This appeal3 followed.
DISCUSSION
Although Appellants filed separate briefs and worded their assignments of
error differently, they both argue that the district court erred in declaring the
actions by the Council violated the Open Meetings Law and in voiding the
Resolution for the same three reasons. First, they argue the Open Meetings Law 2 The delays were requested by Appellees because the Council had launched an investigation into the allegations of paid actors being at the Committee meeting, and both Appellees and the trial court believed the report from the investigation would be relevant to the trial court’s decision. The investigation report was issued in the fall of 2018 and found that, indeed, paid actors were present at the Committee meeting. It further found that Entergy knew or should have known that its contractor, Hawthorn, procured these actors. The report included evidence that Charles Rice, President and CEO of Entergy, discussed in text messages and emails with representatives of Hawthorn about having supporters for the NOPS present at Council meetings, and even discussed costs associated with having them. 3 Though Entergy was not named as a party in the Petition, Entergy moved for an appeal pursuant to La. C.C.P. art. 2086, which allows an appeal when an unnamed party could have properly intervened in the trial court.
5 applies only to public bodies, and because Entergy is not a public body, any action
Entergy may or may not have taken does not render the Resolution voidable
because Entergy is a private entity. Second, Appellants argue that any violation
which may have occurred at the Committee meeting was cured by the Council
meeting, and that the trial court erred in finding that the Committee meeting was a
“necessary component” of the Council meeting because the Home Rule Charter
does not require the Council to hold a committee meeting. Finally, Appellants
argue that, even if there were violations of the Open Meetings Law that were not
cured, the trial court abused its discretion in voiding the Resolution. We address
each argument in turn.
STANDARD OF REVIEW
Article XII, § 3 of the Louisiana Constitution states 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.” This constitutional
provision is meant to ensure that citizens are able to observe deliberations of public
bodies and protect them from secret decisions being made without any opportunity
for input. Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 2001-1951, p. 14
(La. App. 1 Cir. 12/28/01), 805 So.2d 400, 409 (citing Delta Development
Company, Inc. v. Plaquemines Parish Commission Council, 451 So.2d 134, 138
(La. App. 4 Cir.), writ denied, 456 So.2d 172 (La. 1984).
The Louisiana legislature enacted the Open Meetings Law, La. R.S. 42:11,
et seq., to ensure that the protections of Article XII, § 3 are fulfilled. La. R.S.
42:12(A) states the purpose of the Open Meetings Law:
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
6 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.
Under the Open Meetings Law, every meeting of a public body must be
open to the public, unless it is one of those few that are closed subject to statutory
provisions. La. R.S. 42:14. The provisions of the Open Meetings Law shall be
construed liberally. La. R.S. 42:12. Actions taken in violation of the Open
Meetings Law are voidable by a court of competent jurisdiction. La. R.S. 42:24.
The trial court’s ruling voiding the Resolution based on the finding that the
policy behind the Open Meetings Law was not adhered to concerns both issues of
interpretation of the Open Meetings Law, as well as its application. “Regarding
issues of law, the standard of review of an appellate court is simply whether the
court’s interpretive decision is legally correct.” Duhon v. Briley, 2012-1137, p. 4
(La. App. 4 Cir. 5/23/13), 117 So.3d 253, 257-58 (citing Glass v. Alton Ochsner
Medical Foundation, 2002-412, p. 3 (La. App. 4 Cir. 11/6/02), 832 So.2d 403, 405.
“Accordingly, if the decision of the trial court is based upon an erroneous
application of law rather than on a valid exercise of discretion, the decision is not
entitled to deference by the reviewing court.” Id. See also Pelleteri v. Caspian Grp.
Inc., 2002-2141, 2002-2142, p. 7 (La. App. 4 Cir. 7/2/03), 851 So.2d 1230, 1235;
Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C., 2010-1303, p. 4 (La. App.
4 Cir. 9/21/11), 75 So.3d 471, 474. Meanwhile, whether the Open Meetings Law
has been violated is a question of law, subject to de novo review. Harper v. State
ex rel. Its Dep't of Health & Hosps., 2014-0110, p. 7 (La. App. 4 Cir. 9/9/15), 176
So.3d 479, 486.
7 I. Applicability of Open Meetings Law
Appellants argue that Entergy, as a private entity, is not required to comply
with the Open Meetings Law and any violations Entergy may have committed
cannot properly lead to voiding the Resolution. Appellees counter that the
Committee is a public body that must ensure its proceedings comply with the Open
Meetings Law. Thus, if the Committee—and by extension, the Council—did not
ensure compliance with the Open Meetings Law, it is of no moment how the
violations occurred for the action to be voidable. We agree.
La. R.S. 42:13(A)(3) defines a public body:
“Public body” means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph. (Emphasis added).
Here, it is undisputed that the Council, as a governing authority of the City of New
Orleans is a “public body” subject to Open Meetings Law. The Utility, Cable,
Telecommunications, and Technology Committee is a committee of the Council
and as such is a “public body” under La. R.S. 42:13(A)(3). Therefore, all of the
Committee’s meetings, including the meeting of February 21, 2018, must be in
compliance with the Open Meetings Law.
As public bodies, both the Committee and the Council have the
responsibility of ensuring that their meetings comply with the Open Meetings Law.
Under La. R.S. 42:24, if the Committee or the Council do not ensure the Open
Meetings Law is not violated at its meetings, the actions taken at the meeting are
voidable and the cause of the violation is not relevant. Therefore, we find no merit
8 to Appellants’ argument that Entergy’s actions—though they were those of a
private entity—could not have led to a violation of the Open Meetings Law.
II. Violations of Open Meetings Law and Ratification
Next, we turn to whether there were, in fact, violations of the Open Meetings
Law at either the Committee meeting or the Council meeting. Appellees contend
that there were violations of the Open Meetings Law at both meetings. First, they
argue that, because citizens were prevented from entering both meetings for
observation and comment, Article XII, § 3 of the Louisiana Constitution and the
Open Meetings Law were violated because not all interested citizens were allowed
to observe the deliberations and provide comment. Second, they argue that the
agendas were untimely changed in violation of the Open Meetings Law. For the
Committee meeting, Appellees argue that, by allowing parties to the proceedings to
provide comment during the public comment portion of the meeting despite the
explicit wording of the agenda that stated each party to the proceeding would be
given fifteen minutes for closing argument and each non-party would be allowed
two minutes for comment, the agenda was changed less than twenty-four hours
prior to the meeting, in violation of La. R.S. 42:19(A)(1)(b)(ii)(aa). La. R.S.
42:19(A)(1)(b)(ii)(aa) provides that public bodies must give written public notice
of meetings, and the notice “shall include the agenda, date, time, and place of the
meeting. The agenda shall not be changed less than twenty-four hours, exclusive of
Saturdays, Sundays, and legal holidays, prior to the scheduled time of the
meeting.” For the Council meeting, Appellees argue that the agenda item regarding
the Resolution was not described with reasonable specificity, in violation of La.
R.S. 42:19(A)(1)(b)(ii)(bb).
9 Appellants dispute that there were Open Meetings Law violations at either
the Committee meeting or the Council meeting, arguing that there was opportunity
for citizens to observe the meetings in person or through television broadcast and
online streaming, making the meetings reasonably open. They contend that
Appellees’ argument that all interested citizens be able to observe meetings in
person places an unreasonable expectation on public bodies. Further, Appellants
argue it would be unreasonable to expect the Committee or the Council to shut out
citizens from attending meetings based on any financial or other motives they may
have for being present, or for the Council to be expected to ascertain those motives
in advance. Appellants further rely on the trial court’s finding that no violation of
the Open Meetings Law occurred at the Council meeting to support their argument
that the Council meeting “cured” or “ratified” any violations that may have
occurred at the Committee meeting.
The Committee Meeting on February 21, 2018
Based on our review of the record, we find, as the trial court did, that the
Committee violated the Open Meetings Law at its February 21, 2018 meeting. The
record reflects that the Committee published its agenda for the February 21, 2018
meeting on February 16, 2018. The agenda included one item: the Resolution and
Order Regarding the Application of Entergy New Orleans, Inc. for Approval to
Construct the NOPS, Docket No. UD-16-02. The agenda further provided that each
party to the proceeding would be allowed fifteen minutes for closing argument and
that “[e]ach public speaker, not a party, will be allowed two minutes” during a
public comment period. The Committee did not follow the agenda for the meeting
as published. The record shows, however, that the procedure for allowing public
comment was altered—apparently ad hoc as the meeting was in progress—to allow
10 anyone, including parties to the proceeding, to make comments during the open
comment period. As a result, some representatives of parties who attended the
meeting attempted to adhere to the procedure stated in the agenda and not make
comments during the public comment period, while representatives of Entergy,
who was also a party, were allowed to make comments during the public comment
period in addition to making closing arguments. This change to the procedure of
the agenda was made less than twenty-four hours before the meeting, in violation
of La. R.S. 42:19(A)(1)(b)(ii)(aa), which prohibits the change of an agenda “less
than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, prior
to the scheduled time of the meeting.”
Appellants contend that, even if the agenda was not completely adhered to,
this amounted to only a “technical” violation of the Open Meetings Law. We
disagree. The notice requirement in La. R.S. 42:19(A)(1)(b)(ii)(aa) serves to
advance the purpose of the Open Meetings Law because it “ensure[s] that if a
member of the public wants to be heard on a matter or observe a public body's
deliberations on an issue, he or she can check the agenda posted twenty-four hours
in advance to see if the matter is scheduled for consideration.” La. Op. Att’y Gen.
No. 15-0122 (2016). In this instance, the agenda procedure also served to help
ensure that those who wanted to provide comments at the Committee meeting were
given that opportunity and were aware of when they could or could not speak.
Not only was the agenda untimely changed in violation of the Open
Meetings Law, but the record reflects that members of the public were deprived of
the opportunity to observe the meeting and provide comments during the public
comment period at the Committee meeting due to both the change in procedure and
the barring of comments from members of the public who were made to wait in the
11 hallway due to limited space. The record shows that members of the public who
attended the meeting were prohibited from entering the meeting room and were
told that there was no available space. They were also told they could not fill out
comment cards to provide comments unless they were in the meeting room. The
record also reflects that the individuals whom Entergy paid to attend the meeting
and show support for the NOPS did not leave the meeting room once they made
comments, and many members of the public left without having the opportunity to
observe the Committee meeting or provide comment because they believed they
would not be able to enter the meeting at all. The purpose of the Open Meetings
Law is to allow members of the public to observe the meetings of their governing
bodies and voice their opinions in the decision-making process, and this purpose
was not served at the Committee meeting. La. R.S. 42:12(A); Joseph, 2001-1951,
p. 14, 805 So.2d at 409; Delta Development Company, Inc., 451 So.2d at 138.
Thus, we find that the Committee violated the Open Meetings Law at its February
21, 2018 meeting.
The Council Meeting on March 8, 2018
Next, we address the alleged violations that occurred at the Council meeting.
Appellees contend that the Council violated the Open Meetings Law by: (1) again
preventing members of the public from entering the meeting and providing
comment as the Committee did in its meeting of February 21, 2018; and (2)
publishing an agenda that was not specific enough under La. R.S.
42:19(A)(1)(b)(ii)(bb). We disagree.
First, unlike the Committee meeting, the record does not reflect that
members of the public were barred from observing the Council meeting or
providing comment. The record shows that the Council made efforts before the
12 meeting to ensure that the Open Meetings Law requirements were met, including
broadcasting the meeting and streaming it online, as well as stating that it would
remedy the issues that arose at the Committee meeting by providing an opportunity
for observation and comment to everyone. While the Council meeting was widely
attended and not all members of the public who wished to enter the meeting were
able to at first, the record reflects that, eventually, all those citizens who attended
the meeting and wished to observe it and provide comment were given the
opportunity, as the Council said. The record also reflects that the Council allowed
those citizens who were waiting in the hallway to fill out comment cards to provide
comment and that the Council allowed comments for several hours at the Council
meeting.
Second, the record contradicts Appellees’ argument that the agenda for the
Council meeting was not specific enough under La. R.S. 42:19(A)(1)(b)(ii)(bb). In
support of their argument, Appellees cite Hayes v. Jackson Par. Sch. Bd., 603 So.
2d 274 (La. App. 4th Cir. 1992). In Hayes, the administrative body of the Jackson
Parish Head Start Educational Program submitted a proposal to the school board
for additional space for the program. The proposal was to be taken up at the school
board’s regular bi-monthly meeting, and the agenda item for the proposal read
“[c]onsider request from Pine Belt Multi-Purpose Agency for additional space for
the Head Start Program.” Id. at 274. This Court held that the agenda item
description was not sufficiently specific under the Open Meetings Law because it
did not alert the public that part of the proposal was the decision to close an
elementary school and merge it with another school to provide the additional space
for a Head Start Program. This Court found that “the primary solution to the
problem [of finding space for the program] entailed closing one school and
13 consolidating it with another, [which] exceeded the scope of the agenda item as
posted.” Id. at 276.
Here, item number forty-five on the published agenda for the Council
meeting provided:
RESOLUTION - NO. R-18-65 BY: COUNCILMEMBERS WILLIAMS, HEAD, GUIDRY, BROSSETT AND GRAY
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.
Unlike the description found in Hayes, the description of the Council’s
agenda item to consider the construction of the NOPS is sufficiently specific under
La. R.S. 42:19(A)(1)(b)(ii)(bb). It describes the Resolution number, the Applicant
(Entergy), and the subject of the application, i.e. “approval to construct” the NOPS.
Given that the Council went on to consider (and approve) the construction of the
NOPS under the Resolution, the agenda item adequately states the scope of the
action taken by the Council. Additionally, because the record reflects that there
was a substantial amount of people present at the meeting to comment on this
particular item, the statement in the agenda was sufficient to give the public notice
of what the Council would be considering. Unlike the Committee meeting, there is
nothing in the record to suggest that the Council did not adhere to its agenda, or
that the Council did not otherwise comply with the mandates of the Open Meetings
Law.
14 Appellants argue that, because there was no violations of the Open Meetings
Law at the Council meeting, the Council meeting cured or ratified the violations
that occurred at the Committee meeting. Alternatively, Appellants argue that,
because only the Council had the authority to approve the Resolution, the
Committee and its recommendation were not necessary to adopt the Resolution,
and thus could not be a “necessary component” of the adoption process, as the trial
court ruled.
As this Court held in Delta Development Company, Inc., 451 So.2d at 137
(La. App. 4th Cir. 1984), when a public body takes an action in such a way to
violate the Open Meetings Law, the injury caused by the prior violation “may be
corrected by ratification provided the ratification is adopted after full compliance
with the law.” Ratification occurs when the public body “reconsider[s]…action
taken at a previous meeting which was in violation of the open meetings law.”
Wagner v. Beauregard Par. Police Jury, 525 So.2d 166, 170 (La. App. 3rd Cir.
1988). Alternatively, the public body can also “reconsider, repudiate and recall the
earlier improper action.” Id.
The Rules and Regulations of the Council provides at Rule 39 that the
Committee is a “standing committee.” Rule 39 further provides that, as a standing
committee, the Committee “shall make recommendations to the full Council on
Council…Resolutions…and such other reports as in their judgment will advance
the interests of…the people of the City of New Orleans.” (Emphasis added). Rule
39A(2) states that recommendations made by committees “shall be adopted by the
Council in a regular or special meeting…A committee only makes
recommendations to the full Council.” Further, the Home Rule Charter of the City
of New Orleans does not require that the City Council’s utility orders first be
15 approved by the Committee. Pursuant to Charter Section 3-130(6), orders of the
City Council in utility matters “shall be upon a resolution or an ordinance in open
council meeting and passed by an affirmative vote of a majority of all members of
the Council.” Thus, Appellants correctly point out that, under the Rules and
Regulations of the Council and the Home Rule Charter, the Committee’s action
had no binding effect on the Council, as it was only a recommendation to the
Council on the Resolution.
The distinction between the purposes of and actions taken by the Committee
and the Council is precisely why actions taken at the Council meeting could not
serve to “ratify” the actions taken at the Committee meeting: the two meetings
served two different purposes and two different actions were taken. The
Committee meeting was meant to provide the full Council with a recommendation
on Entergy’s application for the NOPS construction, and the Committee took the
action of making such a recommendation, as it is required to do under the
Council’s own regulations. Though the Council was free to accept, reject, or
modify the recommendation of the Committee, the Council meeting was meant to
put the recommendation of the Committee to full vote, adopting the Resolution and
giving Entergy approval to build the NOPS. Even if the Council meeting was in
full compliance with Open Meetings Law, the actions taken at the Committee and
Council meetings were different and served different purposes. Therefore, the
actions taken at the Council meeting could not ratify those taken at the Committee
III. Voiding the Resolution
When the Open Meetings Law is violated, a court of competent jurisdiction
may void the action. La. R.S. 42: 24. La. R.S. 42:26 states that:
16 A. In any enforcement proceeding the plaintiff may seek and the court may grant any or all of the following forms of relief:
(1) A writ of mandamus.
(2) Injunctive relief.
(3) Declaratory judgment.
(4) Judgment rendering the action void as provided in R.S. 42:24.
(5) Judgment awarding civil penalties as provided in R.S. 42:28.
Trial courts are vested with great discretion in deciding to grant or to deny
declaratory relief and, on appellate review, the judgment of the trial court is
reviewed under an abuse of discretion standard. Delta Admin. Servs., L.L.C. v.
Limousine Livery, Ltd., 2015-0110, p. 6 (La. App. 4 Cir. 6/17/15), 216 So.3d 906,
910 (citing Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery
Marketplace, 2002-2337, pp. 4-5 (La. App. 4 Cir. 5/7/03), 847 So.2d 674, 677).
Based on our review of the record, we find that the trial court should not
have voided the Resolution. As discussed, while we agree the Open Meetings Law
was violated at the Committee meeting, we also find that there were no Open
Meetings Laws violations at the Council meeting. Though the Council’s committee
procedure disingenuously implies to the public that the Committee’s decisions are
binding on the Council, the Council’s Rules and Regulations and the Home Rule
Charter make it clear that the Council is not bound by the actions of the
Committee. The Council is free to accept, modify, or reject any or all of the
Committee’s recommendations. Therefore, the trial court erred in determining that
the Committee meeting was a “necessary component” of the Resolution’s passage,
and violations that occurred at the Committee meeting could render the Resolution
voidable. Because it is only the Council’s decision which ultimately has binding
17 effect, and no violations occurred at the Council’s meeting, no remedy is necessary
where no violations occurred.
DECREE
For the foregoing reasons, we affirm the trial court’s finding that there was a
violation of the Open Meetings Law at the Committee meeting and reverse the trial
court’s judgment voiding the Council’s vote to approve the Resolution at the
Council meeting.
AFFIRMED IN PART AND REVERSED IN PART