City of New Orleans officials faced tough questions and a stern warning from a federal magistrate judge on Wednesday over delays in the construction timeline for a controversial jail facility meant to provide medical and mental health care to jail detainees. The city has been ordered to move forward with the facility, called Phase III, despite protests from Mayor LaToya Cantrell’s administration and an ongoing appeal.
The court hearing was called last week in part because other parties to the jail’s long-running consent decree raised concerns over language in the city’s February status update on the facility.
The update said that procuring a construction contract of the facility was contingent upon New Orleans City Council approval of zoning changes to allow Phase III construction to move forward, among other things.
The City Attorney’s office — dating back to Mitch Landrieu’s administration — has suggested that the city would need council approval in order to move forward with constructing the Phase III building. But over the last several months, council members have indicated that while they oppose Phase III, they don’t believe that they are legally required to take any action to approve it, and are not interested in being used as an excuse by the Cantrell administration for why they can’t move forward.
Last week, the council passed a resolution that noted federal law preempts the New Orleans Home Rule Charter — which gives the council authority on zoning issues — and said they should not take or be asked to take “any action or inaction violating state or federal law.” Councilman Joe Giarusso said that the council didn’t want to be “used as a means to thwart what is going on in either state or federal courts.”
And now the City Attorney’s office may have gone back on its previous position that council approval is necessary. In a new Phase III status report filed Tuesday, City Attorney Donesia Turner omitted any language about procurement being contingent on council approval.
When questioned directly by Magistrate Judge Michael North, who presided over the hearing on Wednesday, Turner said that despite what was in the February status report, the city would be moving forward regardless of council action.
“We have worked out all of those bureaucratic hurdles,” Turner said. “Notwithstanding what was in the February status report, we have never stopped moving forward with Phase III.”
She apologized for any “heartburn” the language in the status update had caused any of the parties.
North said he accepted the city’s assurances, for now.
“I’m cautiously satisfied — if that’s even a thing,” he said.
But North and the parties had additional concerns about the timeline of Phase III, which has been pushed back multiple times. In July 2021, city officials said they would open bids for the construction contract in November of that year. They estimated that construction would be completed by August 2023. Now, in their update on Tuesday, the city says that the bid will not open until August of this year. They estimate that the facility won’t be completed until December of 2024.
“This timeline has been completely jacked up over time,” said North, who has expressed persistent frustration with the City over the facility since they made an attempt to get out of building it in the summer of 2020.
Concerns have been raised that the delayed timeline could jeopardize tens of millions of dollars in FEMA funding, putting the city on the hook for the full cost of the building. Phase III is estimated to cost $51 million. The city has argued that FEMA will cover $39 million of that. But those funds are set to expire in August 2023 — on the 18th anniversary of Hurricane Katrina — and if projects have not reached substantial completion by that time, they could lose out on funding.
But Vincent Smith, director of capital projects for the city, said that he had been in touch with FEMA about the fact that the project wouldn’t be completed by that time, and said the city was planning to ask for an extension.
Ramsey Green, the city’s deputy chief administrative officer for infrastructure, said on Wednesday that the city has hundreds of millions of dollars worth of projects dependent upon FEMA funding that are also at risk of running past deadlines. But he seemed confident that extensions would be issued on those projects that aren’t completed in time.
”I’m not terribly concerned about the deadline at this moment,” Green said.
Smith told North that part of the delay had to do with the fact that FEMA has instructed the city to conduct broader public outreach due to the controversial nature of the project.
He said that the city was required to hire outside consultants — Materials Management Group, who then contracted with Ramboll Environmental Consultant — to assist with public engagement efforts. According to the status report filed on Tuesday, the consultants have been soliciting comments from city and federal agencies, and will submit a report to FEMA in May.
But two other parties to the consent decree — civil rights attorneys with the Roderick and Solange MacArthur Justice Center, representing people detained in the jail, along with the United States Department of Justice — said they hadn’t been given any documentation regarding the expanded outreach effort.
”To this day we don’t have a single document, record, of any sort,” said Emily Washington, with MacArthur. She said the expanded engagement process seemed “quite unusual.”
North also expressed frustration that he had not seen any documentation, and ordered the city to provide some written documentation or correspondence from FEMA on what exactly they expected.
“We need those documents,” North said. “I need all of this. I need to understand what’s happening.” He said that the controversial nature of the project “should not impact FEMA whatsoever.”
“It’s time to start demonstrating real progress,” North said.