The New Orleans Civil Service Commission appears to have violated the state’s Open Meetings Law in voting to reinstate a New Orleans police lieutenant who was fired after being convicted for covering up the post-Katrina shooting of Henry Glover.
In 2011 a judge overturned Travis McCabe’s conviction for obstruction of justice. This month, federal prosecutors dropped their charges against him.
McCabe had appealed his termination to the Civil Service Commission. With no conviction or charges pending, the city recently agreed to rehire McCabe with back pay.
Monday, the commission voted unanimously to approve the agreement over objections from attorney and NAACP President Danatus King, who is representing Glover’s aunt Rebecca Glover, and about a dozen protesters.
However, before taking the vote, the commission abruptly decided to go into executive session, closed to the public. During the closed session, commissioners reached a decision on the settlement between the city and McCabe.
State law requires advance notice of any executive session or, failing that, a vote to amend the meeting agenda. Neither occurred at Monday’s meeting. The law requires public bodies to solicit public comment before adding something to the agenda; that didn’t happen either.
However, the commission did take a vote to go into executive session, as required by law.
The law also prohibits “final or binding action” during executive sessions, according to the Louisiana Attorney General. That’s meant to prevent officials from deciding matters in private and then coming back into a public session to vote.
The executive session was called after a motion was made to approve McCabe’s reinstatement. Some of the commissioners and Gilbert Buras, the commission’s attorney, started speaking in whispers inaudible to the audience. They then voted to go into executive session, and everyone was ushered out of the room.
After about 20 minutes, the public was invited back in. “The commission has come to accept this agreement,” said Commissioner Michelle Craig.
The Lens objected, citing improper notice and improper use of an executive session. The commission’s attorney, Gilbert Buras, responded that the commission was acting in a “quasi-judicial capacity” and therefore fell under an exemption to the law for “judicial proceedings.” Buras also said the closed meeting was in fact a judicial “recess,” not an executive session.
However, a 1994 opinion by the Louisiana Attorney General contradicts Buras’ claim. The opinion relates to a near-identical situation: whether the Slidell Municipal Police Civil Service Board’s could meet in executive session to deliberate on disciplinary appeals.
The Attorney General’s Office said such deliberations are “not exempt as judicial proceedings.” The opinion further says that the office had earlier concluded that the state Civil Service Commission — the equivalent body for state employees — “is not a judicial branch agency” even though it holds hearings and decides on appeals.
“It was found the State Civil Service Commission was a public body falling under the open meetings law, and there was no exemption from the requirements of those provisions,” wrote an assistant attorney general in the opinion.
Buras did not immediately respond to the Lens’ requests for comments.
Told of the apparent violation, King said he would consult with Rebecca Glover. “If what they did was improper, then I’ll consult with my client, let her know the recourse was available,” he said. “I’m always going to advise that we follow the law, whether it’s a citizen or whether it’s an agency.”
It’s possible that the commission could remedy the situation by revisiting the issue at another meeting.
Considering that the city and McCabe had reached an agreement, the commission would have little grounds to vote against it. However, if it did re-vote, it may have to do so before Glover’s family and other protesters.
“I find this appalling that you would reinstate this guy,” Rebecca Glover said at the meeting. “He covered up killing my nephew. We’ve got to go on living like this?”
“You all have failed us,” she said.