An Orleans Parish Civil District Court judge on Thursday granted a temporary restraining order — requested by Mayor LaToya Cantrell’s administration — blocking the enforcement of a subpoena issued to Cantrell’s Chief of Staff Clifton Davis as part of the City Council’s investigation of a now-abandoned “smart cities” project.
Judge Nicole Shepard said the move was intended to “let the status quo hold” until next Wednesday, when the court is scheduled to hold a full hearing on the city’s request for an injunction against the council, which is seeking documents as part of a probe into potential contract steering and self-dealing by city officials involved in the smart cities deal.
In a press conference following the ruling, City Council members Helena Moreno and JP Morrell pilloried the city’s lawsuit, and said that they still planned to move forward with contempt charges against the three officials who failed to comply with the subpoenas — Davis, Director of Strategic Initiatives Josh Cox and Director of Intergovernmental Affairs Arthur Walton.
“This really just delays the inevitable,” Morrell said. “This council will get these documents. The council will get this information and we will drag this information to light. Because I’ll tell you for an administration that repeatedly says it has nothing to hide, they are simply acting very differently.”
The motions to charge the three officials with contempt, Morrell noted, are being co-sponsored by all seven council members.
Morrell also accused the Cantrell administration of “illegally” hiring a private law firm — Sher Garner Cahill Richter Klein & Hilbert — for the case instead of relying on the City Attorney’s Office, and in doing so using “taxpayer dollars to fund this cover-up.”
Moreno and Morrell both said that among the many reasons they believed the lawsuit to be “ridiculous” was that the documents requested in the subpoena are public documents, and should therefore already be available to anyone who asks for them.
“I have no idea why they’re playing all these games,” Moreno said. “But at the end of the day this just goes back to why all this started. It was because of a lack of information, because of secrecy around this project, and a lack of accountability which is a plague in some departments.”
The Subpoena
So far, the council has subpoenaed five Cantrell officials as part of the investigation. Two have already submitted their documents and at least appear to have fully complied, poking a hole in the administration’s argument that the identical request to Davis is overly burdensome, Morrell said.
The other three officials have still not complied, even though their subpoena deadline was Tuesday.
On Wednesday, The Lens reported that the council planned to move forward with contempt charges against the three officials. The Lens reported that the Cantrell administration intentionally withheld the documents while it waited to hear back from the city’s Office of Inspector General.
The OIG is conducting its own investigation into the smart cities scandal, separate from the council. In a letter last week, City Attorney Donesia Turner asked the OIG to “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.
But in the smart cities case, the OIG never raised any concerns either publicly or directly to the council, according to Moreno. And this week, in response to Turner’s letter, Inspector General Ed Michel explicitly 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.”
On Tuesday evening, following a discussion with the OIG, the City Attorney’s Office told Moreno that the three officials had been told to comply and would produce the subpoenaed documents as soon as possible.
But later on Wednesday, Davis filed suit against the council — in his official capacity, meaning the suit was filed on the city’s behalf. The suit only asks to quash Davis’ subpoena, not those for Cox, Walton, Rhodes or Wolff.
Despite the OIG’s letter this week, the lawsuit argues that the subpoena threatens the integrity of the OIG investigation. On Thursday, James Garner, appearing as Davis’ attorney, argued that this put an undue and excessive burden on the administration to comply with both. Although he also said that the information being sought by the OIG “is identical to what’s being sought in the subpoena.”
Garner also argued that the OIG, by policy, isn’t supposed to release the information until an investigation is complete, while a council investigation is held out in public.
“It would be irreparable injury to have something be going on in public,” Garner said.
“The only reason there would be irreparable harm in this case is if there is something to hide, which is how it looks,” the City Council’s attorney, Adam Swensek, said on Thursday.
Moreno and Morrell said during Thursday’s press conference that in the Hard Rock investigation, the OIG never ended up releasing a public report, highlighting the importance of a public council investigation.
“We would have had no actual information definitively on hard rock if we had simply relied on the OIG’s secret investigation because there was never a public report.
Private attorney
Davis isn’t being represented by the City Attorney’s Office. Instead he’s being represented by the private law firm Sher Garner Cahill Richter Klein & Hilbert.
During Thursday’s hearing, the City Council’s attorney, Adam Swensek, questioned whether the firm was authorized to represent Davis or the administration.
Swensek said that a provision of the city’s charter requires a two-thirds vote by the City Council in order for the city to hire “special counsel.” He said that vote never happened, and that he wasn’t aware of what contract the private law firm was working under.
Garner said that his firm had been hired on an emergency contract. And he argued the charter’s procedure of requiring a council vote raised the issue in this situation, since the administration was suing the council.
“You’re going to go to the people you’re fighting and ask for permission?” Garner said. “It’s irrelevant, it’s a side show, it’s a smokescreen.”
Garner said the city was working on a short timeline. The deadline for three city officials — including Davis — to respond to the subpoenas was on Tuesday. Shortly after they missed the deadline, Moreno began writing up the motions to charge the three officials with contempt of council. Garner said that the council intended to bring those to a vote next Thursday, which meant the administration had to act fast.
But Swensek argued that the short timeline was a problem created by the administration. He pointed out that the subpoenas were issued nearly a month ago, and that the OIG began its investigation two weeks ago, meaning the administration has had plenty of time to raise issues or try to hire an attorney to resist the subpoena.
But instead, according to Swensek, the administration continued to indicate that it planned to cooperate. The council even granted an eight-day extension for the three officials when they asked for more time.
“I’ll also mention that Mr. Wolff did secure outside counsel, but he’s paying personally for that. He’s paying out of his pocket for that,” Moreno said after the hearing. “So why is it that the mayor’s chief of staff has taxpayers paying for a very expensive law firm to defend him?”