The New Orleans City Council on Thursday passed a resolution asking Mayor LaToya Cantrell’s administration to do something that seems fairly obvious: follow the law. 

The resolution directs the administration to “fairly and equitably” enforce laws, to comply when state or federal laws supersede local ones and to avoid asking the City Council to “take any action or inaction violating state or federal law.”

The resolution was prompted by several recent points of contention between the council and the administration, including the “Phase III” expansion of the local jail, the city charging car theft victims for towing and storing their stolen vehicles, the city’s recent decision to start enforcing size limits on second lines and the administration’s failure to enforce or comply with new laws passed by the City Council.

Council members Joe Giarrusso and Lesli Harris said there was also a broader problem of the council not getting necessary information and updates from the administration.

“I am frankly also tired of not being able to have communications regarding these matters, and I am frustrated that a great deal of my personal time is spent not hearing about things and then having to play catch up as a result,” Giarrusso said.

“I’m new to the council, but what shocks me sort of every day is that I hear news about actions taken by the administration in nola.com and other news sources rather than hearing it directly from the administration,” Harris said. “So hopefully we’ll get better communication all around.”

Giarrusso also said that there are a number of reports the administration is required to submit to the council, some of which are not being produced. His office sent The Lens a list of 58 reports that have been requested by the council but haven’t yet been received, most of them the responsibility of executive branch departments. His office did note, however, that “some of these reports may be outdated and irrelevant.”

Phase III

One of the central points of contention that prompted the resolution is the ongoing litigation over a controversial plan to expand the city’s jail, known as Phase III, meant to provide mental and medical health care to people in custody. 

Neither Cantrell nor the council is in favor of constructing the facility. But the city previously agreed to build it under Mayor Mitch Landrieu, and a federal judge overseeing the jail’s long-running consent decree has ordered the Cantrell administration to abide by that agreement and move forward with construction, which the other parties argue is necessary to provide adequate care to incarcerated people. 

But despite the council’s expressed opposition to Phase III, it’s also indicated that it will abide by what the federal court orders. And some council members feel that the city is unfairly using the council as a scapegoat to avoid going forward with it. 

“This council will not be used as a means to thwart what is going on in either state or federal courts,” Giarrusso said. “When orders have been given, we are duty bound to follow them.” 

In legal filings, both the city and sheriff-elect Susan Hutson have argued that building Phase III requires various actions from the City Council, including approval of zoning changes and a cooperative endeavor agreement. But the council has not taken any of those actions, and has recently indicated that it does not believe they are necessary.

Last month, the council declined to vote on a zoning change that would have allowed for the retrofit of the current jail — an alternative to Phase III supported by Cantrell and some criminal justice reform advocates. Instead, they passed a resolution that signaled their opposition to Phase III, but in doing so, expressed deference to the federal court order.  (An initial draft of that resolution had language that said a zoning change was not “legally necessary” for either Phase III nor the retrofit — though that language was taken out of the version that finally passed.)

However, in a status report to the federal court last month, the city said that procuring a construction contract for the facility was “contingent” upon the City Council taking action. In a response filed on Thursday, the United States Department of Justice and civil rights lawyers representing people detained in the jail accused the city of repeatedly delaying construction of the facility, and said that lawyers had previously indicated to the court that procurement could move forward without council action.

“We kind of feel like we’re being used,” Giarrusso said. “It’s also extraordinarily clear that our zoning powers are completely preempted by federal law.” 

Money for Sewerage and Water Board substation never placed into new city fund

Giarrusso brought up how last month, the council passed ordinances to create a new fund to pay for a key Sewerage and Water Board project — an electrical substation — and to place $30 million in federal dollars into that fund. 

“As I sit here, neither the fund has been created nor have the funds been transferred, even in part,” Giarrusso said.

He said the administration has asked him to provide a memo for why it’s necessary to create that special fund. But Giarrusso said at this point, it shouldn’t matter, since the council already unanimously approved the ordinances that direct the city to create it. 

He said there have also been consistent questions about what laws are, and are not, being enforced by the Department of Safety and Permits and Code Enforcement. 

Harris brought up the administration’s recent announcement that it would start enforcing a rule, which has for years been largely ignored, that limits the size of second lines. Harris said that as a result, “some of the second lines have been treated inequitably.”

Giarrusso said that issue is why he added language to the resolution to demand the administration “fairly and equitably” enforce laws.

“We have lots of laws on the books, some of which aren’t enforced, some of which are moderately enforced, some of which are heavily enforced. If this has been the understanding for a generation, to reverse course creates a big situation.”

Ultimately, Giarrusso said that council members want to work better with the administration, and not constantly worry about whether the laws they pass are being enforced, whether they’re getting information they already requested or whether their stance is being misrepresented by the city in federal court.

“We just don’t want to consistently have to be in a defensive posture,” he said.