Attacks on Councilman LoBue Wholly Unjust

CENTRAL — Councilman Tony LoBue has endured a world of unjust and undeserved criticism over the past two weeks, relative to his service as chairman of the Mayor’s Committee on Legal Services.

The criticism is that Councilman LoBue brought to his committee, which was holding its first meeting to look at the city’s legal services, a copy of a public record — the City Attorney’s bills to the City of Central for the period July 2010 to February 2011.

For this great crime, Central Speaks newspaper lashed out at Councilman LoBue in a front-page editorial and the Mayor ordered Councilman LoBue to resign as chairman of the committee.

Councilman LoBue has long expressed his concern about the mountain of legal bills which City Attorney Sheri Morris has amassed — more than $700,000 from the City, the school board, and transition district — at an unrestricted $175 an hour.  So one wonders why the Mayor appointed him to chair this committee in the first place

After the first committee meeting, where Councilman LoBue actually did his job by looking at the bills of the City Attorney, all heck broke out.  It’s ironic, since the Committee on Legal Services was appointed by the Mayor to make recommendations on what direction the city should take on hiring legal services.

It would seem axiomatic that the committee would look at the legal bills the City is in currently being required to pay, if it is to have any recommendations on the subject.

Public Records vs. Secrecy

The City Attorney has been trying for months to keep her billing records secret and out of public view.  On two occasions, the City Council has met and voted to require her to release her billing records to the public.

Now the Mayor and the City Attorney’s allies are on a rampage that Councilman LoBue brought these records for the committee to view.  LoBue Not the Problem

The real problem here is not Councilman LoBue’s actions, which were completely honorable and legal, but the attempts by some in city government to keep public documents secret and thereby violate Louisiana’s Public Records Act.

Here are the key issues:

• Constitutional Right at Stake

The right of Louisiana citizens to view public records is a constitutional right spelled out in the Louisiana Constitution.  It was my privilege to have authored that provision of the constitution when I was a delegate to the state Constitutional Convention.  It reads as follows:

Louisiana Constitution of 1974  — Art. XII, Section 3 — Right to Direct Participation in Government

“No person shall be denied the right to observe the deliberation of public bodies and examine public documents, except in cases established by law.”

By reading this provision, one understands that every person has the right to examine all public documents — except in cases specifically established by law.  Laws have to be passed by the legislature.

• Attorney Bills Are Not an Exception to Public Records Act

In Louisiana, the Public Records Act lists all the exceptions referred in the Constitution, and it clearly states that no other exceptions exist.

A broad “attorney-client privilege” is not an exception listed in the Louisiana’s Public Records Act.  The only “exception” to the Public Records Act relative to attorneys is found in La. R.S. 44:4.1 as follows:

“The provisions of this Chapter shall not apply to any writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories of an attorney or an expert, obtained or prepared in anticipation of litigation or in preparation for trial.”

Thus, legal opinions are an exception to the Public Records Act but legal bills are not.

In the past, Ms. Morris’ bills have never contained her “mental impressions, conclusions, opinions, or theories.”  And we can’t imagine why a monthly legal bill would include such information.  If they do, then she should stop putting her legal opinions in her bills to the city!

• Public Records Are Supposed to Be Available Immediately

The Public Records Act provides that public records shall be available at all times during business hours or within three days at most.  The law gives citizens the right to examine existing original public documents.  The public body doesn’t have to make copies of the records unless the person requesting them pays for the copies.

When Mr. Mike Mannino requested to examine Ms. Morris’ legal bills last year, she developed an elaborate and quite bizarre system for preventing access to the records.  Instead of following the law and allowing Mr. Mannino’s to walk into City Hall, pulling the bills out of the file drawer, and letting him see them, she created a system that would bring smiles to a federal bureaucrat.

Ms. Morris required that each of the 700 pages of her bills be copied at City Hall, emailed to her office, printed out, blackening out, and then scanned, emailed back to City Hall, and then printed out for Mr. Mannino. With the black-outs, there was nothing left to read. It was a most amazing process and completely contrary to law.  But Ms. Morris and her backers defended it.  And, of course, they blamed Mr. Mannino for having causing another mountain of legal bills!

The only reason Mr. Mannino finally got to see the records was the City Council ordered Ms. Morris to produce the bills unredacted.  The whole process took a month — not “immediately” or within the three days allowed by law.

Even today Ms. Morris remains devoted to the mistaken idea that the “attorney-client privilege” is an exception to the Public Records Act.  This notion threatens to keep Central’s citizens from having ready access to public records.  And it threatens to keep the City Council busy meeting to waive a non-existent privilege.

• City of Central Can’t Alter Louisiana’s Public Records Law

Louisiana’s Public Records Law is in the Revised Statutes.  It passed the legislature and was signed into law.

Neither the Mayor, the City Council, nor the City Attorney can repeal, alter, or restrict Louisiana’s Public Records Law.  Nor do they have authority to set up elaborate procedures that citizens must comply with in order to examine public records in this community.

Nothing in the Public Records Act permits a governmental body to withhold public records until a City Council meets and “waives” its “right” to confidentiality of public records.

City Attorney Must Be Recused

Since the legal bills in question are from the City Attorney, she must be recused from rendering any legal opinions regarding their disclosure.  For her to do so is a serious conflict of interest by her as an attorney.

Records Are Appropriate for

Committee Review

Even if the legal bills to the City weren’t public records, which they clearly are, a committee studying legal services would have the legal right to review those bills. How else could they come up with any recommendations?

Council Members Should Not Serve on Mayoral Committees

In the background is another important issue.

The Mayor’s Committee on Legal Services was created solely and entirely by the Mayor — not by resolution or ordinance of the City Council.  It is an Executive Branch committee.

Councilman LoBue was appointed by the Mayor as chairman of the committee.  This is entirely illegal and inappropriate. The Lawrason Act states clearly that the City Council is to exercise the legislative power of the municipal government.

For a member of the legislative branch to accept appointment from the executive branch and to serve at the executive’s pleasure is a serious violation of the separation of powers of the two branches.

Every responsible and functioning legislative body appoints its own committees. The President of the United States Senate does not appoint members of the U. S. Senate Armed Services Committee, and the Governor doesn’t appoint members of the Louisiana House Ways and Means Committee.

Everybody understands that would be a violation of separation of powers.  But the principle of separation of powers is just as important in municipal government.

At every level of government, the executive branch tries to dominate the legislative branch, but an independent legislature is essential to the functioning of our system of government.

City Council Should Have Its Own Committee System

Our City Council has been remiss in its duties in that it has failed to establish a functioning committee system.  Committees are the way that every responsible legislative body conducts its business.

The reason we have five-hour City Council meetings in Central is because our City Council doesn’t have committees.

Any legislative body — whether it be Congress, the state legislature, or a City Council — needs a two-tiered system for considering legislation.  The first level is the committee hearing, which is conducted with less formality and greater public involvement.

At the committee hearing, the details of legislation are supposed to be hashed out.  Bad proposals should be killed, and good ones should be amended to get the “bugs” out.  Only after that occurs should proposed legislation get to the floor of the City Council for debate.

Examples of City Council committees would be an Executive Committee, a Budget and Finance Committee, and a Public Works Committee.

But, instead of working through committees, our City Council sees proposals for the first time when they are on final passage.  The result is often chaotic, poorly thought out, and divisive.  Without a functioning committee system, the City Council is making it easy for the executive branch to dominate city government.

Councilman LoBue Should Be Praised for his Stand on Public Records and His Effort to Reform Legal Services

If Councilman Tony LoBue brought copies of a public record — the City Attorney’s bill — to a meeting of a committee on legal services, he was just doing his job, shining the light on public records of importance to our city and trying to mend our broken system of acquiring legal services.

But all of our Council members should be careful to protect the separation of powers.  That means staying away from executive branch appointments and executive branch committees.

Never again should an elected City Councilman be called out by the Mayor and told to resign from a “Mayoral” appointment.

When asked by the Mayor to replace Councilman LoBue as chairman of the Mayor’s Committee on Legal Services, Councilman Ralph Washington said, “No, I was elected by the people, and I don’t intend to accept a post where I could be removed by the Mayor.”

By Woody Jenkins, Editor, Central City News