The United State Department of Justice and civil rights attorneys representing people locked in the New Orleans jail — both parties to the jail’s long-running federal consent decree — is accusing the city of New Orleans of unnecessarily delaying the construction of a controversial 89-bed medical and mental health jail facility and providing empty, misleading excuses for those delays in federal court last month. On Monday, the federal judge handling the matter indicated that he agrees.
For more than a year, New Orleans Mayor LaToya Cantrell, who is opposed to the facility known as Phase III, has been trying to get out of a federal court order that the city continue with construction. The city previously agreed to build Phase III under Mayor Mitch Landrieu and appeared to be moving forward with pre-construction work during a portion of Cantrell’s first term.
An appeal of the January 2021 order is ongoing, but judges presiding over the case in district court have been adamant that the city continue moving forward, warning that any unnecessary delays will not be tolerated. Still, the city’s anticipated timeline for completing the facility has been steadily pushed back.
At a hearing last month, officials for the city pinned ongoing delays in procurement of a construction contract for the facility, known as Phase III, on the Federal Emergency Management Agency, who they said had ordered the city to continue public outreach efforts before moving forward with procurment “because of all the controversy surrounding the project.”
FEMA funds will cover the majority of costs for Phase III — the city says the agency will pay $39 million of the estimated $51 million project.
But the other parties involved in the Phase III, and federal Magistrate Judge Michael North, who presided over the hearing, expressed frustration that it was the first they were hearing about the additional public outreach — and some degree of skepticism that city officials were being honest about FEMA requiring it. North ordered that the city produce documents that proved FEMA had in fact ordered them.
Early last week, the city did file documents that were ostensibly in support of their claims that FEMA was responsible for the delay — including emails between city officials and consulting companies involved in Phase III development, and notes from meetings between city officials and FEMA. But the other parties, and North, are not buying that those documents prove what the city says they do.
“The City is attempting to convince the Court that FEMA is requiring additional public engagement/hearings as justification for a significant delay in beginning the procurement phase of the Phase III project and the documents in the record simply do not support that contention,” North wrote on Monday.
North has set another hearing for later this week, where he said he “expects a plausible explanation for this and a firm commitment from the City to begin procurement with no further delays.”
Judge has criticized city over shifting legal arguments, misrepresentations
The dispute over FEMA requirements is the latest part of an ongoing struggle over Phase III between the Cantrell administration and the other parties to the jail’s long-running federal consent decree, during which North has repeatedly become exasperated with the city’s attorneys for misrepresentations to the court and shifting legal arguments. In December of 2020, North wrote that he had “lost trust in the City as a litigant – in the truth of its representations to the Court and in the sincerity of its professed commitment to solving this problem.”
If the other parties and the court continue to find the city is not complying with the judge’s order order to move forward with the facility without any “unnecessary delays,” they could ask that the city be held in contempt of court — which could mean fines, or even jail time for city officials.
Last month, the city appeared to assuage one concern raised by the judge and other parties to the consent decree — a suggestion the city had included in status updates that they would require New Orleans City Council approval before moving forward. At that hearing, City Attorney Donesia Turner assured North and the other parties in the litigation that progress on the facility was not contingent upon City Council approval.
But at the same hearing, the city’s Director of Capital Projects Vincent Smith brought up the new FEMA-related delays. While Smith said FEMA was ordering more outreach due to the controversial nature of the project, in their filing last week, the city suggested that the reopening of public engagement was related to a request by the Sheriff’s Office to add two additional beds to the facility.
But the DOJ and lawyers with the Roderick and Solange MacArthur Justice Center, representing the plaintiff class in the consent decree, responded that city officials appeared to be changing their justification on why FEMA is requiring public outreach, and that their “latest reasoning is not based on facts.”
While additional beds may have been discussed, lawyers for the DOJ and MacArthur argued, they were never actually incorporated into the Phase III design. In addition, they say the documents the city produced actually “run contrary to the City’s claims that FEMA requires additional public hearings.” They point to meeting notes which FEMA advised against doing more public engagement due to the city’s pending appeal.
“In fact, it is the City of New Orleans, not FEMA, that is seeking additional public comment before procurement begins,” the lawyers wrote.