Mayor LaToya Cantrell’s chief of staff, Clifton Davis, filed a lawsuit against the New Orleans City Council on Tuesday to block the enforcement of a subpoena the council had issued to Davis as part of its investigation into the administration’s now-abandoned “smart cities” project and related allegations of contract-fixing and self dealing.
The suit was filed Wednesday, one day after three Cantrell officials, including Davis, blew council subpoena deadlines and Councilwoman Helena Moreno, in response, began drafting motions to charge them with contempt of the council, a misdemeanor. The motions, which need approval from the full council, would urge local prosecutors to indict the three officials — Davis, Director of Strategic Initiatives Josh Cox and Director of Intergovernmental Affairs Arthur Walton.
Davis’ suit argues that “the Mayor’s Executive Office will suffer irreparable harm if it is forced to comply with the Subpoena.” It also made a broader argument that the entire council investigation is unnecessary and overly burdensome due to a separate investigation of the smart cities deal by the New Orleans Office of Inspector General.
One of the suit’s central arguments is that the council’s investigation will interfere with the OIG investigation. That claim was made despite the fact that, roughly six hours before the suit was filed, the Inspector General Ed Michel sent a letter to the administration that said his office “had not identified any grounds to anticipate that the City Council’s investigation will interfere with the OIG’s performance of its duties.”
Nonetheless, the first argument put forth in Davis’ lawsuit was that the subpoena is “is duplicative and poses a great risk of interfering with the ‘operational independence’ of the NOIG.” The suit notes that the council voted in favor of a resolution encouraging the OIG to start its own investigation.
“The city council effectively ceded the authority to investigate the contracts at issue when it passed a resolution to direct NOIG to investigate. The City Council does not need to conduct its own investigation or obtain the very same information that the NOIG has the ability to obtain.”
The suit said that forcing the Cantrell administration to comply with both investigations at the same time would risk the OIG’s “operational independence” and be so burdensome that it “would interfere with the Mayor’s administration’s execution of their executive duties.”
The suit argues that the subpoena is too broad and it would simply take too much time to compile all the requested documents. That argument was made despite the fact that two other city officials with nearly identical subpoenas have already handed over thousands of documents in response.
The lawsuit also argues that the council’s subpoena powers are limited because the investigation could turn up evidence of ethics violations or criminal wrongdoing.
The OIG investigation, the suit says, “may result in a decision in charging the subject of the investigation [with] ethical violations or even criminal charges. Louisiana courts have held that even statutorily granted, administrative subpoena powers are limited where those subpoenas would potentially interfere with a pending investigation by an entity authorized to investigate criminal activity.”
The Cantrell administration nor Moreno’s office responded to immediate requests for comment.
The City Council has so far subpoenaed five individuals as part of the smart cities investigation. Two — Mayor’s Office of Utilities Director Jonathan Rhodes and IT employee Chris Wolff — had already responded with thousands of pages of documents by the time the suit was filed. Davis, Cox and Walton not only blew their Tuesday deadline but still had not provided any documents as of Thursday morning, according to Moreno’s office.
As The Lens reported Wednesday, it doesn’t appear that the missed deadline was an accident. Two hours after the blown deadline, City Attorney Donesia Turner told Moreno that the city was waiting on a response from the OIG to a letter asking the office “confirm whether the Council may continue its independent investigations parallel to the OIG’s investigations.”
The letter referenced a previous instance when the council and OIG had announced concurrent investigations — into the 2019 collapse of the Hard Rock Hotel construction site that killed three workers and injured many more. Then-Inspector General Derry Harper publicly asked the council to defer its investigation out of concern that it would interfere with the separate OIG investigation. The council ended up heeding Harper’s letter and shelving the investigation.
Moreno told The Lens that the letter looked like an attempt to “prod” the current Inspector General, Ed Michel, into stepping in.
“The city attorney is the one who had reached out to Mr. Michel about whether or not he was going to step in,” Moreno said. “If the OIG had any type of concern with the council’s investigation, I would have assumed that he would have, on his own, weighed in, and not needed prodding from the City Attorney’s office.”
Later on Tuesday, Turner told Moreno that she’d spoken to Michel, the inspector general, and that, as a result, she had instructed the three officials to respond to the subpoena as soon as possible. The next morning, Michel sent the official letter saying that “the OIG will refrain from making any recommendations to the City Council regarding the City Council’s independent investigation.”
Davis filed the lawsuit hours later in his official capacity, meaning the suit was filed on the city’s behalf. But he is being represented by private law firm Sher Garner Cahill Richter Klein & Hilbert, not the City Attorney’s Office.
As of Thursday morning, it doesn’t appear that Cox and Walton have filed lawsuits to block their subpoenas, so it’s unclear whether they will comply or likewise fight them in court.
Davis’ lawsuit was initially assigned to Civil District Court Judge Robin Giarrusso, mother of City Councilman Joe Giarrusso. Court records indicate that Judge Giarrusso recused herself, and the case has been reallotted to another judge.