Lawyers for the city of New Orleans argued in federal appeals court Monday that the city should be released from a consent decree for the Police Department because the U.S. Department of Justice didn’t disclose that it was also negotiating a consent decree to reform Orleans Parish Prison.
The city also contended that the process was tainted by the involvement of disgraced former Assistant U.S. Attorney Sal Perricone, who resigned in March 2012 after being outed for posting incendiary comments on NOLA.com about local figures, including Mayor Mitch Landrieu and Police Superintendent Ronal Serpas.
By failing to disclose concurrent talks with the Orleans Parish Sheriff’s Office for the jail consent decree, the Justice Department negotiated the one for the Police Department in bad faith, City Attorney Sharonda Williams told a panel of three federal judges at the U.S. Court of Appeals for the Fifth Circuit.
“Misrepresentation, newly discovered evidence,” Williams said, listing the city’s allegations against the federal government. “I believe the facts support all of this.”
The most important piece of evidence, according to the city, is the potential price tag of the jail consent decree. The exact price hasn’t been determined — in fact it is the subject of a separate hearing in federal court this week — but Gusman’s attorneys have said it could reach $23 million a year. A consultant for the city, however, put it at no more than $7 million for 2014.
Combined with the $55 million, five-year estimated cost of the police consent decree, the Landrieu administration has claimed that the OPP consent decree could result in massive furloughs and layoffs of essential city employees, including police.
But Deputy Assistant Attorney General Roy Austin, who leads the feds’ team on the police consent decree, said the city’s arguments were “irrelevant, frivolous and patently false.”
[module align=”left” width=”half” type=”pull-quote”]“You can’t use funding as an excuse for why you cannot uphold your constitutional obligations.”—Deputy Assistant Attorney General Roy Austin[/module]“They knew the Orleans Parish Prison was being operated in an unconstitutional fashion. They knew it since 2009,” when the Justice Department released a damning report on substandard conditions in the jail, Austin said. “They knew — not based on anything the Justice Department said, but on state law — that they were solely responsible for funding the prison.”
Austin noted an email from Gusman’s attorney Blake Arcuri to the city on July 19, 2012 — five days before Landrieu signed the consent decree — that broke down anticipated costs of nearly $23 million per year as a result of the consent decree. Williams herself received the email.
In any case, Austin added, “You can’t use funding as an excuse for why you cannot uphold your constitutional obligations.”
The three Fifth Circuit judges were likewise skeptical that negotiations with Gusman, or even potential costs, could be considered “newly discovered evidence.”
Chief Judge Carl E. Stewart repeatedly pointed out that the Sheriff’s Office and City Hall are “the same city.”
“If the argument is that DOJ had information that the city didn’t have, it’s the same city,” he said. “How does the left hand not know what the right hand is doing?”
Despite the city’s arguments in court, the jail consent decree was discussed publicly as early as 2011. At a July 2011 meeting of a working group to determine how large the new jail should be, Loyola professor Michael Cowan said the Justice Department and the Sheriff’s Office were negotiating a consent decree.
At a town hall meeting in 2011, responding to a question about changing the jail’s funding structure, Landrieu said, “There’s a consent decree that’s pending already, and that will be part of the discussion.”
And in a federal court hearing in April, U.S. District Judge Lance Africk rejected Deputy Mayor Andy Kopplin’s contention that the city wasn’t deeply involved in discussions about the jail consent decree.
The city’s other main argument Monday hinged on Perricone, who the city contends was embittered after Landrieu appointed Serpas, not him, as police chief in 2010.
In 2011 and 2012, “at the same time he was helping to shape the scope and substance of DOJ’s investigation, Perricone was waging a secret campaign to undermine the City, NOPD, and the man who had beaten him for the Superintendent job,” the city argued in its appeal.
Attorney Ralph Capitelli, who was the city’s chief negotiator for the police consent decree and now represents the city in the appeal, said that after the March 2012 revelation about Perricone, the federal government was quick to assure the city that the problem at the U.S. Attorney’s Office was limited to one rogue employee. As it turned out, not only did Perricone post extensively under a number of pseudonyms, so did First Assistant U.S. Attorney Jan Mann and her husband Jim Mann.
Capitelli also disputed the federal government’s claim that Perricone wasn’t deeply involved in consent decree negotiations. During talks, “he spoke as if he were the voice of authority,” he said.
Whatever Perricone’s level of involvement in the consent decree, Austin countered, it was over months before the city signed it.
“The city had four months of negotiations without Mr. Perricone,” Austin said, adding that he found it “befuddling” that experienced attorneys would claim that an unnamed website commenter seriously affected the city’s bargaining position. “Mr. Perricone played no role in the city’s decision to enter into this consent decree.”
Police union, community group say they were improperly kept out of consent decree talks
Along with the city’s appeal of the full consent decree, two groups argued to overturn an August 2012 ruling by U.S. District Judge Susie Morgan that prevented them from participating in talks for the police consent decree.
Ted Alpaugh, a lawyer for the local chapter of the Fraternal Order of Police, the city’s largest police association, said the officers legally are owed representation because the agreement calls for changes in how officers are evaluated and promoted. Those changes, he said, could subvert the city’s civil service protections.
Alpaugh said the city is already moving to undermine civil service procedures by not initially funding promotional exams for several years. Instead, the Police Department have used “provisional promotions,” which afford supervisors wide latitude. Earlier this summer — more than six months into the year — the association and the administration reached an agreement to hold a sergeant’s exam.
“We’re seeing them move toward more subjective measures in promotions,” Alpaugh said.
Community United for Change, a citizens group that fights against police corruption and abuse, argued that it too should have been able to participate in consent decree talks.
“The interest that CUC brings to the table is that of the low income African-American community,” said Bill Quigley, the group’s attorney. “The interaction with police in the poor African-American community is quite different from the white community or people with higher incomes.”
Department of Justice attorney April Anderson’s rebuttal dealt almost entirely with the claims from the police association. She compared the case to the Los Angeles Police Department consent decree. In that case, a federal appeals court found in 2002 that the police union did have a right to intervene.
The difference, she said, was that Los Angeles officers had a collective bargaining agreement that could have been breached as a result of the federal oversight.
In New Orleans, the officers have civil service rules, which the city can change if its Civil Service Commission approves them. That process is outlined in state law.
“Nothing in the decree gives the court any right to contravene state law,” Anderson said. “The court was very careful on that. It heard from the city. It heard from the parties. When the civil service issue was raised, the court called for an extra hearing on that.”
This story was updated after publication to add the section about the appeals from the Fraternal Order of Police and Community United for Change and to add information about prior public discussion about the jail consent decree.