Last month, the New Orleans City Council approved the nomination of Ruth White Davis to replace incumbent Michelle Craig as the fifth commissioner on the Civil Service Commission. But Davis hasn’t been sworn into her position yet, and at a special meeting late last month, the commission approved a motion that cast doubt on the legality of the process that led to her approval.
“This Commission is not confident we can legally seat the person chosen by the City Council,” the motion said. “Accordingly, I move to authorize the Commission’s counsel to evaluate and pursue legal avenues to ensure that the constitutionally mandated process… for the selection of a new commissioner was followed.”
The commission vote came roughly a week after The Lens reported on how the City Council appeared to violate the Louisiana Open Meetings Law when it approved Davis’ nomination. The report also included details about how Mayor LaToya Cantrell lobbied to replace Craig, even though the Civil Service Commission is supposed to be an independent, apolitical body.
The Civil Service Commission deals with employee discipline, positions, promotions, furloughs, layoffs and other personnel matters. The commission is designed to shield city personnel decisions from political influence. Four of the commissioners are approved by the City Council through a list of three nominees submitted by local universities. The fifth is nominated by city employees and approved by the City Council. Davis was nominated by Dillard University.
“This Commission was legally created to be an independent and non-political public body,” the recent commission motion said.
Meanwhile, the commissioner nominated by employees — Clifton Moore — is accusing Cantrell of improperly disseminating a “privileged and confidential” letter from the state Board of Ethics regarding his potential conflict of interest as a Civil Service Commission member and a member of the local fire fighters union.
In fact, it appears that Cantrell may have committed a misdemeanor offense when she sent the confidential letter to a Lens employee late last month, days after The Lens published the story on Davis. In addition, Cantrell included excerpts of the confidential document in a September letter to all City Council members without Moore’s approval. Such a disclosure may also violate state law.
“The fact that you have a copy of this letter, to me it indicates that it was the goal of the city to cast aspersions to some degree on my character, and thereby call into question my participation as a commissioner in general,” Moore told The Lens in an interview. “That’s how it feels, that’s what I think. I don’t know what other conclusion I could come to.”
As to why the administration was going after him, he could only guess.
“My affiliation with labor is well known, but they seem to take it as a disadvantage for them that I’m union affiliated,” he said. “What are they afraid of? From what I understand I’m not like some previous employee representatives because I make my voice heard a little more.”
A statement from Cantrell spokeswoman LaTonya Norton didn’t directly address the potential legal breach, but said that it was important that Board of Ethics decisions are made public to foster public confidence in the integrity of the government.
Big decisions loom for Civil Service Commission
The conflicts over the Dillard nominee and Moore’s potential conflict of interest come during an important time for the commission. Facing depleted revenues due to the coronavirus crisis, the Cantrell administration is trying to make significant personnel cuts to balance the budget, some of which need approval from the Civil Service Commission.
Already, the Civil Service Commission has voted to allow Cantrell to institute partial furloughs for nearly the entire city workforce through the end of the year. Last week, when Cantrell introduced her draft budget for 2021, she announced that she would be returning to the Civil Service Commission in order to extend the furloughs through 2021.
In Cantrell’s letter to the council urging them to approve Davis over Craig as the Dillard nominee, she took aim at both Craig and Moore as being overly friendly to labor and employee interests. Craig served as the commission’s chairperson before her term expired, while Moore served as the vice chair.
In her letter, Cantrell didn’t accuse Craig herself of being biased towards labor interests, but said she had “significant concerns regarding the conduct” of the commission as a whole under her leadership. For example, the letter alleges that “the Commission, led by Chair Michelle Craig, has become more reluctant to deny employee appeals.”
Cantrell said there was a risk that the commission under Craig would “create unfunded mandates” and get in the way of the city making quick adjustments to cope with the current fiscal crisis. She urged the council to approve Davis’ appointment.
The council was working off of a list of three nominees submitted by Dillard University president Walter Kimbrough, which listed incumbent Craig as the top nominee and Davis as the second nominee. In the past, the City Council has considered motions for all three nominees. But this time, the council members only considered Davis, and appointed her to the commission with no discussion.
After that vote, Civil Service Director Lisa Hudson asked City Council Deputy Chief of Staff Eric Granderson how council members decided to choose Davis without considering the other two nominees. Granderson responded that council members had been able to “reach a consensus among themselves” regarding their preferred nominee. If the council members reached that consensus by communicating with each other outside of a public meeting, that would appear to violate the state Open Meetings Law.
The City Council’s Interim Chief of Staff Paul Harang told The Lens in a statement last month that “there was no communication that occurred between Councilmembers which violated the Open Meetings Law.”
But judging by their vote last week, it appears the four current Civil Service Commissioners aren’t so sure.
The motion the commission unanimously passed last week suggests that the commission is seeking an opinion from the state’s Attorney General over a potential violation of the Open Meetings Law.
In her letter to the City Council urging Davis’ appointment, Cantrell also took aim at Moore. The letter said that the city filed a complaint with the Board of Ethics over Moore’s refusal to recuse himself from a May vote on emergency pay for the city’s essential workers.
Meeting notes from the May meeting show that an attorney for the city, William Goforth, argued for Moore to recuse himself since Moore, as an NOFD employee, would have benefited from emergency pay. Moore, as well as the commission’s executive council Christina Carroll, argued at the time that he didn’t have to recuse himself, citing a Board of Ethics opinion that was issued when Moore was first appointed to the commission. (Cantrell’s letter to the council also calls into question Carroll’s bias, since she had represented the firefighters union in cases against the city and commission before she was hired by the commission in 2019.)
When Moore was first appointed in 2017, the commission requested that the Board of Ethics provide an opinion on when Moore, an active NOFD employee, should recuse himself from commission decisions and discussions. The board ruled that Moore wouldn’t have to recuse himself from decisions that affected the entire Fire Department. The emergency pay motion from May would have affected a large swath of employees, including the entire Fire Department.
“That opinion in hand is how we proceeded,” Moore told The Lens. “It made sense. If I had to recuse myself of a lot of what the city would love me to recuse myself of, it would be an abdication of my responsibility to the employees and citizens I serve.”
The state constitution requires that one member of the commission — Moore’s seat — be appointed from the ranks of the city’s classified service, the same employees who will be directly affected by commission votes. Many Civil Service Commission votes would therefore have the potential to impact whoever held the employee representative position.
Moore said that if the Board of Ethics had changed its interpretation of his conflict of interest, he would follow that, but that there was no indication of that at the time.
The emergency pay request was ultimately denied, with Moore as the only commissioner to vote in favor of emergency pay. The Cantrell administration then submitted a complaint to the Board of Ethics over Moore’s refusal to recuse himself.
“The request before the Commission would have resulted in Moore personally receiving a 150% increase in his rate of pay for approximately two months,” the statement from Cantrell’s office to The Lens said. “La. R.S. § 42, 1112(A) prohibits Moore from “participat[ing] in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.”
On Aug. 12, Moore received a letter from the Board of Ethics regarding the May vote. He had never been interviewed or contacted about the complaint, he said. The letter doesn’t indicate that a complaint was submitted by Cantrell, only that the board “considered confidential information.” Moore only found out about Cantrell’s complaint because she admits it in her letter to the Council.
The letter from the Board of Ethics to Moore said that “there may have been a violation” of a state law when he participated in the emergency pay vote. However, the letter says that the board had decided to “close this file” rather than “pursue enforcement action,” in part because the emergency pay request had failed.
“When I received the letter, I was upset,” Moore said. “I said, ‘Wait, wait, we already did this. We checked this. What’s going on here.’ And I had the feeling, I really did, at the time I got the letter that this doesn’t sound good so it may be problematic. Here’s my name on a letter from the ethics board. I don’t like that at all. I understand they said ‘he may have.’ They didn’t say I did violate anything. But still it bothered me. I don’t like the way this looks or the way this feels.”
Along with the excerpts that Cantrell sent to the City Council, she also sent a full copy of the letter to Lens co-founder Karen Gadbois from her personal email address.
“She’s trying to influence, and I think it’s inappropriate,” Moore said. “Were there any violations involved with the mayor or her staff releasing the contents from a letter that’s marked confidential and privileged?”
Louisiana law prohibits anyone from sharing any information resulting from a confidential Board of Ethics investigation aside from the person being investigated. Violating that law is a misdemeanor that carries a sentence of up to one year in prison or up to a $2,000 fine or both.
“She had no authorization from me whatsoever,” he said. “How it looks could be untoward for me. It makes it seem like something smells funny when you have that letter without any background. I think that is part of the reason why it’s marked confidential and privileged. It’s irresponsible to let that kind of thing go without lining up your facts.”
Moore said that he approached Tracy Barker, an attorney with the Ethics Board, about his concerns regarding the distribution of the letter.
“Her response was something to the effect of, ‘If it was a violation that’s criminal so you have to take it up with the [District Attorney],’ “ Moore said. “If it was a violation I’d think you’d be interested and you’d address it.”
The Lens received a similar response from state Ethics Administrator Kathleen Allen when it reached out for comment.
“The staff of the Board of Ethics does not confirm or deny the receipt of complaints/investigations,” Allen wrote in an email. “Because R.S. 42:1141.4L provides for the imposition of criminal penalties, it is not a provision of law that our office enforces. Therefore, I cannot give advice as to the application of that provision.”
The statement from Cantrell didn’t speak directly to the legality of the situation, but rather spoke to the importance of transparency at the Board of Ethics as a general principle.
“An underlying policy of the Code of Governmental Ethics is to foster public confidence in the integrity of government, and the public cannot have any confidence that Code is being enforced if Board of Ethics decisions are concluded in secret,” the statement said.
“I’m consulting with my counsel at this point,” Moore told The Lens. “Believe me we’ve been going back and forth every day with this just trying to determine the best course of action for how to proceed.”
Moore said he took issue with both Cantrell’s attempt to force him to recuse himself, and her behind the scenes lobbying to replace Craig with Davis.
“The whole process is supposed to be apolitical, it’s not supposed to have political involvement from the powers at be,” he said. “But undoubtedly that’s what happens. And what happens is the city tries to get a body that is favorable to their goals and initiatives.”