A portion of the motion charging Cantrell Chief of Staff Clifton Davis with contempt of the council.

The New Orleans City Council unanimously approved motions on Thursday stating that two top officials from Mayor LaToya Cantrell’s violated city law by willfully ignoring subpoenas related to the council’s “smart cities” investigation. The motions urge local prosecutors to formally charge the two officials — Chief of Staff Clifton Davis and Director of Intergovernmental Relations Arthur Walton — with contempt of the council, a misdemeanor.

The administration sued the council last week in an attempt to block the subpoena against Davis. Yesterday, Civil District Court Judge Sydney Cates sided with the council and denied the administration’s request. That appeared to clear the way for the council to move forward with contempt charges.

But on Thursday morning, the administration filed notice that it would ask the Fourth Circuit Court of Appeal to overturn the ruling. When Cates filed his written judgment on Thursday morning, he granted a stay, temporarily blocking enforcement of the subpoena issued to Davis. Walton wasn’t impacted by the ruling, meaning his subpoena remains active and he could face charges.

Davis and Walton are two of the five administration officials that the City Council has subpoenaed so far as part of its ongoing investigation into allegations of contract-fixing in the multimillion-dollar smart cities deal, which was abandoned after the city’s preferred contractor dropped out.

Neither Davis nor Walton has handed over the requested documents yet, representing “a willful or contumacious refusal or failure” to respond to the subpoenas, according to Thursday’s motions. 

“It’s really unfortunate we got to this point,” Councilman JP Morrell said on Thursday. “It’s unfortunate we had to waste time, waste resources, and further undermine public faith in government.”

Councilwoman Helena Moreno first announced her intent to file the contempt motions last week, just hours after the officials blew the subpoena deadline. The next day, Davis filed a lawsuit against the council, asking the court to dismiss his subpoena and broadly calling for an end to the council’s investigation. Davis brought the lawsuit in his official capacity as chief of staff, meaning it was filed on the Cantrell administration’s behalf.

In a brief initial hearing last week, Judge Nicole Shepard granted a temporary restraining order to block enforcement of the council’s subpoena until there was a full hearing. That hearing happened yesterday in front of Judge Cates, who sided with the council and denied the administration’s request. 

After Cates made his ruling, James Garner, who’s representing Davis and the administration in the case, said that the administration would appeal the ruling and asked Cates to reinstate the temporary restraining order while that appeal went forward. At the time, Cates indicated he’d need to see a written request before granting a stay.

But on Thursday morning, Cates submitted his written judgment, which maintained his spoken denial of the administration’s request, but added that he would grant Garner’s request to reinstate the temporary restraining order as the case was appealed.

The motions approved by the council on Thursday instruct the City Attorney’s Office to prosecute the two officials and get a guilty verdict. If City Attorney Donesia Turner has a conflict of interest, the request would be passed on to District Attorney Jason Williams. It appears likely that Turner would have a conflict in this case, since her office has ben advising Cantrell, Davis and Walton on how to handle the subpoenas. 

But Moreno said that prosecution wasn’t the outcome she was hoping for. She said she hoped that the administration would respond by simply complying with the subpoenas “so we can consider dropping these contempt charges.”

Moreno said that the council was in unanimous agreement that it was important for the council to protect its investigatory and subpoena authority to maintain the balance of power laid out in the city charter.

“We must protect the authority provided to us through the city charter,” she said.

As for the administration’s decision to take the ruling to appeals court, Moreno told The Lens it was “another waste of time and the city’s money.”

In a statement, Cantrell’s Director of Communications Joseph Gregory likewise characterized the council’s contempt motions as a waste of taxpayer money.

“We stand firm in our position that these actions, including today’s ruling, are political, duplicative, and a misuse of taxpayer funds,” the statement said.

Council members question hiring process for private attorney

Moreno and Morrell have both slammed the administration for hiring Garner, a private attorney  with law firm Sher Garner Cahill Richter Klein & Hilbertto, to sue the council rather than using in-house counsel through the City Attorney’s Office. Morrell said on Thursday the appeal would cost even more.

“This issue isn’t even fully resolved because as we were told at the hearing they intend to appeal and spend more money, more taxpayer dollars,” he said. 

Morrell said he still had “​​very grave concerns” about how the city ended up hiring a private attorney to represent Davis and the administration. 

Responding to the suit, the council unsuccessfully tried to disqualify the firm as the administration’s legal representation, arguing that the city bypassed several legal requirements in the process to hire an outside attorney. 

First, the council argued that the city hadn’t gone through any public bid process to hire the firm. Garner, the administration’s attorney, argued on Wednesday that contracts worth less than $15,000 don’t require a public bid process. The city’s contract with the law firm for this case, he said, had a maximum value of $15,000.

The council’s attorney, Adam Swensek, said he had questions about whether the administration set the contract at $15,000 in order to bypass the public bid process. And he said that, depending on how long the litigation lasts, the contract could possibly be extended by the city to increase it above $15,000.

“You can’t ink a deal without a competitive selection and then amend above the threshold,” Swensek said during Wednesday’s hearing.

“As we sit here today it’s $15,000 or less,” Garner said. “Anything else is speculative.”

Second, the council argued that the administration failed to comply with a provision of the city charter that requires the administration to get a two-thirds approval from the council before hiring “special counsel.” 

That argument was especially interesting since it appears that the city hasn’t sought council approval for legal contracts for years, well before Cantrell became mayor. 

The Lens asked several City Council members whether the city’s argument signaled that it would now seek to enforce that charter provision more broadly, or whether it would apply to the city’s current legal contracts. None provided a clear answer. 

Cates rejected the council’s motion to disqualify Garner with little explanation, allowing the administration to continue using its private attorneys.

This story has been updated with additional details from Thursday’s meeting and newly entered legal filings.

Michael Isaac Stein

Michael Isaac Stein covers New Orleans' cultural economy and local government for The Lens. Before joining the staff, he freelanced for The Lens as well as The Intercept, CityLab, The New Republic, and...