Author: Dane Ciolino

February 14, 2017 ERB Meeting

The City of New Orleans Ethics Review Board will meet on Tuesday, February 14, 2017, at 4:00 p.m., in New Orleans City Hall, City Council Chambers, 1330 Perdido Street, New Orleans, LA 70112. The agenda:

  1. Approval of minutes: January 30, 2017.
  2. Inspector General’s report.
  3. Independent Police Monitor’s report.
  4. General Counsel’s report: a. Report on implementation ordinances; b. Report on public records requests.
  5. Ethics education update.
  6. Discussion and rescheduling (if necessary) of future 2017 ERB meeting dates.
  7. Executive session pursuant to Louisiana Revised Statutes 42:17(A) (4) to discuss investigative proceedings regarding allegations of misconduct.
  8. Adjournment.

Agenda: 2017-02-14 ERB Agenda

ERB Transfers Prosecutorial Function to Office of Inspector General

At its December 21, 2016, board meeting, the City of New Orleans Ethics Review Board reconsidered the manner in which ethics complaints are investigated, prosecuted, and adjudicated. (For more on the issues associated with the past procedure, see this post.) Because the Board’s framework commingled the prosecutorial and adjudicative functions within the Ethics Review Board, the Board amended its rules to bifurcate those functions. The amendments are here (PDF downloads):

2016-12-21 DRAFT Ordinance for OIG Ethics Enforcement
2016-12-21 Revised Rules for Ethics Review Board

The ERB will ask the New Orleans City Council to adopt the draft ordinance at an upcoming Council meeting.

 

ERB to Consider Transfer of Prosecutorial Function to Office of Inspector General

At its February 29, 2016 Board meeting, the ERB announced a review of the substantive provisions of the City of New Orleans Ethics Code, the enforcement of the Code, and the Board’s rules, regulations, and administrative procedures. Section 1303 of the ERB’s rules mandate this review at least every five years to assure that the rules “promote integrity, public confidence, and participation in city government,” and to assess “whether they set forth clear and enforceable, common-sense standards of conduct.” See ERB Rules § 1303 (“Review of Board Rules”).

The Board’s review included reconsideration of the manner in which ethics complaints are investigated, prosecuted, and adjudicated. Under the current administrative framework, the Board investigates, prosecutes, and adjudicates complaints. See Rules for the Ethics Review Board §§ 601-815 (Feb. 1, 2011). For example, the Board, through its General Counsel, “may investigate any matter by gathering evidence.” Id. § 601. The Board then “shall decide whether . . . charges should be filed and the case noticed for public hearing.” Id. § 603. If the Board so decides, “[a] public hearing is initiated by order of the Board through the issuance of charges,” and a “time and place” is fixed for a public hearing. Id. § 802. At that hearing, the Board’s General Counsel or other trial counsel “for the board” acts as prosecutor. Id. § 805(A). The Board, without the assistance of counsel, then deliberates and decides whether the charges it ordered to be filed were meritorious. Id. § 805(F).

This procedural framework, however, may violate due process and fundamental fairness. In Allen v. La. State Bd. of Dentistry, 543 So. 2d 908, 915-16 (La. 1989), the Louisiana Supreme Court held that “the commingling of prosecutorial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further. . . . The idea of the same person serving as judge and prosecutor is anathema under our notions of due process. Such a scenario is devoid of the appearance of fairness.” See also Ga. Gulf Corp. v. Bd. of Ethics for Pub. Employees, 694 So. 2d 173, 178 (La. 1997) (discussing lack of “appearance of fairness” associated with the “failure to clearly delineate and differentiate the functions of the prosecutor and adjudicator”); Haygood v. La. State Bd. of Dentistry, 101 So. 3d 90, 97-98 (La. Ct. App. 4th Cir. 2012) (finding that Board of Dentistry “improperly combined the prosecutorial and judicial functions by allowing its general counsel . . . to serve as the prosecutor, general counsel, panel member and adjudicator for the proceedings” in violation of respondent’s “due process right to a neutral adjudicator and a fair hearing”). As recently as June 9, 2016, the United States Supreme Court observed that “an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.” See Williams v. Pennsylvania, No. 15-5040 at 6 (Jun. 9, 2016); In re Murchison, 349 U.S. 133 (1955) (holding that judge’s dual position as accuser and decisionmaker in trial violated due process).

Because the current framework commingles the prosecutorial and adjudicative functions within the Ethics Review Board, the Board will consider amending its rules to bifurcate those functions. The proposed amendments are here (PDF downloads):

2016-11-09 Draft Ordinance for OIG Ethics Enforcement
2016-11-18 Draft ERB Rules for OIG Ethics Enforcement

If adopted, these revisions would place the investigative and prosecutorial function in the Office of the Inspector General (“OIG”). Even though the OIG does have some relationship and oversight by the Board, this relationship would not impede bifurcation. Indeed, the Louisiana Supreme Court has approved a similar system used by the Louisiana Attorney Disciplinary Board to comply with Allen. Under that system: “While the disciplinary board performs both an adjudicative and prosecutorial function, these functions are separated within the board. Supreme Court Rule XIX, § 2(A). The rule clearly delineates the functions of the disciplinary board and the disciplinary counsel, avoiding the commingling of functions in a single person which we found objectionable in Allen.” In re Laudumiey, 849 So. 2d 515, 523-24 (La. 2003). The court has likewise approved a similar system used by the Louisiana Judiciary Commission, which allocates the prosecutorial function to the Office of Special Counsel. See, e.g., In re McInnis, 769 So. 2d 1186, 1194 (La. 2000); In re Johnson, 683 So. 2d 1198, 1202 (La. 1996).

ERB Elects New Officers

On August 17, 2016, the City of New Orleans Ethics Review Board selected the following new officers.

Chair

MillerAllen C. Miller, J.D.
Board Chair
Partner, New Orleans Office
Phelps Dunbar LLP

Allen Miller practices in the area of commercial litigation. He concentrates his practice in the areas of general business torts; products liability; casualty litigation, banking and lender liability; class-action litigation; bankruptcy litigation; construction litigation and contracts; civil RICO; trade secrets litigation; professional malpractice; and a wide variety of other corporate litigation matters. He has extensive experience in complex commercial matters. Mr. Miller has handled a substantial number of cases from inception through resolution at trial, appeal and alternative dispute resolution where appropriate. His experience includes, without limitation, first chair litigation counsel in numerous bench and jury trials in state and federal court. He is solely responsible for the litigation strategy and handling of cases for several institutional firm clients, and regularly supervises commercial litigation associates and paralegals. His memberships and affiliations include: Louisiana State Bar Association, Minority Involvement Section, New Orleans Bar Association, American Bar Association, National Bar Association, Federal Bar Association (Board of Directors, Eastern District of Louisiana), International Association of Defense Counsel, Louisiana Association of Defense Counsel, Louisiana Association of Defense Counsel Trial Advocacy (Faculty Member, 2006 – Present), and National Institute of Trial Advocacy (Faculty Member, 2004 – Present). He is a “40 Under 40” Award Recipient (National Bar Association) as well as “40 Under 40” Award Recipient by Gambit Weekly. Past community service includes membership on the boards of Odyssey House of Louisiana, Inc., as Vice-President and Executive Committee Board Member, and WRBH Radio for the Blind and Print Handicapped. Mr. Miller is a graduate of Southern University Law Center and Xavier University. Mr. Miller’s term will expire June 30, 2018. He is a nominee of Xavier University.

Vice-Chair

BrownJames A. Brown, J.D.
Board Vice-Chair
Shareholder, New Orleans
Liskow & Lewis

James A. Brown is a shareholder with the New Orleans law firm of Liskow & Lewis, P.L.C., and heads the firm’s Commercial Litigation Section as well as its Professional Liability Practice Group. He also serves as the firm’s General Counsel and formerly served on the Board of Directors. Mr. Brown is a Fellow of the American College of Trial Lawyers and other national professional and honorary organizations. He is the Chair of the American Bar Association Presidential Standing Committee on Lawyers’ Professional Liability. Mr. Brown is an adjunct professor of trial advocacy and torts at the Louisiana State University Law Center and is a member of the New Orleans, Louisiana, and American Bar Associations. He serves as a member of the Advisory Council for the LSU Honors College. Mr. Brown received his B.A. degree, summa cum laude and valedictorian, from Louisiana State University in 1981. He received his J.D. from the LSU Law Center in 1984. He served as Editor-in-Chief of Volume 44 of the Louisiana Law Review and as law clerk to the Honorable Alvin B. Rubin, Circuit Judge, United States Fifth Circuit Court of Appeals, 1984-1985. He and his wife of 35 years, Kelly, have three sons, two daughters-in-law, and three grandchildren. Nominated to the ERB by the University of New Orleans, Mr. Brown’s term will expire June 30, 2019.

Secretary

BoutinRev. Brandon Boutin
Board Secretary
First Pastor & Pastor of Ministries
Greater St. Stephen Full Gospel Baptist Church

Reverend Brandon M. Boutin currently serves as the First Assistant Pastor & Pastor of Ministries at Greater St. Stephen Full Gospel Baptist Church in New Orleans, LA, under the leadership of Dr. Debra B. Morton, and Bishop Paul S. Morton, Sr. Rev. Boutin is a graduate from St. Augustine High School, Xavier University of LA, and New Orleans Baptist Theological Seminary. In 1999, he became a licensed minister and in 2006 was ordained as an elder. Deeply concerned about people, on a daily basis Rev. Boutin may be found in community meetings, on speaking engagements, speaking on college campuses, participating in youth activities, conducting a funeral, wedding, or counseling. Rev. Boutin is a nominee of Dillard University; his term will expire June 30, 2015.

2015 Annual Report

The Ethics Review Board of the City of New Orleans (ERB) has responsibility for overseeing the Office of Inspector General (OIG), enforcing the city’s ethics code, and promoting ethics awareness through education and training.

On July 20, 2016, the ERB released its annual report for 2015, which is available for download here: 2015-00-00 ERB Annual Report.

Ethics Training

The ERB’s work in 2015 included the launching of the Ethics Review Board’s ethics training for city employees, elected and appointed officials, and members of boards and commissions. The training is based on the use of ethical dilemmas associated with real-life circumstances posing ethical dilemmas of the kind that city employees and officials, members and staffs of boards and commissions, and others might be expected to encounter in their specific situations, as well as exposure to relevant ethical provisions of the city and state ethics codes. Recipients are selected and training is designed in consultation with the ERB and conducted by the Hackett Group, a local consulting firm. In December of 2015 the first two ethics training sessions occurred for members of the city’s Department of Safety and Permits. A total of 31 city inspectors took part in sessions on December 14 or 21. A summary of evaluations by 2015 participants is available for inspection on the ERB website (www.nolaerb.gov). In preparation for becoming state-certified ethics trainers, members of the Hackett Group took part in trainings sponsored by the State of Louisiana. As of this writing training sessions have been completed in 2016 for 25 support service and engineering personnel of the Sewerage and Water Board and 25 engineers and managers in that same agency. Plans are being made for 15-20 members of the mayor’s office, the city council and the finance department to take part in the training in the coming year.

Independent Police Monitor

The year also brought intense public discussion about whether the Office of Independent Police Monitor (OIPM) should remain within the Office of Inspector General or be separated from it. The result of this debate was a decision by city council to place a charter amendment on the ballot in November 2016. The measure would provide for the separation of the OIPM from the OIG and the assignment of agreed portions of the money set aside annually by charter for operation of the OIG, OIPM and ERB. In the new institutional arrangements, the OIPM would report to the ERB, as the OIG now does, and presumably be subject to the same accountability as the OIG. The council also passed an ordinance requiring that ERB members file annual financial disclosure statements.

Staff Changes

In October 2015, the ERB retained attorney Dane S. Ciolino as its general counsel. A respected expert in legal and governmental ethics, he is a professor in the Loyola University New Orleans College of Law. His expertise will add great value to the work of the ERB.

As a matter of efficiency, the ERB decided not to replace its former full time executive director, accepting instead the offer of Inspector General Quatrevaux to assign a member of his staff, Ms. Jessica Lang, to assist the ERB part time. As of the end of 2015, the arrangement was working well. It will be reviewed annually.

Conclusion

I noted in previous reports that, while the relationship between an inspector general and public officials will inevitably include tensions, it need not be adversarial. In the arena of government ethics, the best of possible worlds is a strong, independent office of inspector general and a senior elected official who sees that office as an ally in the quest for effective, efficient, fair and law-abiding government. Those powerful stars continue to be aligned in New Orleans. This matters because around the world, good government has been shown not just to make government less wasteful and corrupt, but also to increase economic opportunity and reduce racial and other inter-group tensions. Whoever cares about those two matters cannot allow waste and corruption to contaminate public institutions.

Should you have comments, questions or suggestions for the Ethics Review Board, I encourage you to visit our website www.nolaerb.gov click on “Contact” and complete the comment form. If you would prefer to call, our number is (504) 681-3208.

Michael A. Cowan, Ph.D.
Chair
Ethics Review Board, City of New Orleans