Deep South Center for Environmental Justice, Vayla New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate Heurich v. the Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II

DEEP SOUTH CENTER FOR * NO. 2019-CA-0774
ENVIRONMENTAL JUSTICE,
VAYLA NEW ORLEANS, *
JUSTICE AND BEYOND, 350 COURT OF APPEAL
NEW ORLEANS, SIERRA *
CLUB, MR. THEODORE FOURTH CIRCUIT
QUANT AND MS. RENATE *
HEURICH STATE OF LOUISIANA
*******
VERSUS

THE COUNCIL OF THE CITY
OF NEW ORLEANS, THE
UTILITY, CABLE,
TELECOMMUNICATIONS
AND TECHNOLOGY
COMMITTEE OF THE NEW
ORLEANS CITY COUNCIL,
JASON R. WILLIAMS, STACY
HEAD, SUSAN G. GUIDRY,
LATOYA CANTRELL,
NADINE M. RAMSEY, JARED
C. BROSSETT, AND JAMES A.
GRAY, II

CONSOLIDATED WITH: CONSOLIDATED WITH:

DEEP SOUTH CENTER FOR NO. 2019-CA-0775
ENVIRONMENTAL JUSTICE,
VAYLA NEW ORLEANS,
JUSTICE AND BEYOND, 350 NEW
ORLEANS, SIERRA CLUB, MR.
THEODORE QUANT AND MS.
RENATE HEURICH

VERSUS

THE COUNCIL OF THE CITY OF
NEW ORLEANS, THE UTILITY,
CABLE,
TELECOMMUNICATIONS AND
TECHNOLOGY COMMITTEE OF
THE NEW ORLEANS CITY
COUNCIL, JASON R. WILLIAMS,
STACY HEAD, SUSAN G.
GUIDRY, LATOYA CANTRELL,
NADINE M. RAMSEY, JARED C.
BROSSETT, AND JAMES A.
GRAY, II

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-03843, DIVISION “I-14”
Honorable Piper D. Griffin, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown,
Judge Dale N. Atkins)

Monique C. Harden
DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE
9801 Lake Forest Blvd.
New Orleans, LA 70127

William Patrick Quigley
LOYOLA UNIVERSITY - SCHOOL OF LAW
7214 St. Charles Avenue
Box 902
New Orleans, LA 70118

Alexander "Sascha" Bollag
GREEN JUSTICE LEGAL
540 Broadway Street, Room 304
New Orleans, LA 70118

Susan Stevens Miller
EARTHJUSTICE
1625 Massachusetts Avenue, N.W.
Suite 702
Washington, DC 20036

COUNSEL FOR PLAINTIFF/APPELLEE

Richard C. Stanley
W. Raley Alford, III
Kathryn W. Munson
STANLEY, REUTER, ROSS, THORNTON & ALFORD, L.L.C.
909 Poydras Street
Suite 2500
New Orleans, LA 70112

Corwin M. St. Raymond
Deputy City Attorney
William R. H. Goforth
Assistant City Attorney
Donesia D. Turner
Senior Chief Deputy City Attorney
Sunni J. LeBeouf
CITY ATTORNEY
1300 Perdido Street
City Hall - Room 5E03
New Orleans, LA 70112

Adam J. Swensek
Executive Counsel
NEW ORLEANS CITY COUNCIL
1300 Perdido Street, Room 1E6
New Orleans, Louisiana 70112

Timothy S. Cragin
Harry M. Barton
ENTERGY SERVICES, INC.
639 Loyola Avenue
L-ENT-26E
New Orleans, LA 70113

James M. Garner
Debra J. Fischman
Stuart D. Kottle
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.
909 Poydras Street
Suite 2800
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED IN PART AND REVERSED IN PART
FEBRUARY 12, 2020

Appellants, Entergy New Orleans, LLC (“Entergy”) and The Council of the

City of New Orleans (the “Council”), appeal the trial court’s June 14, 2019

judgment voiding the Council’s March 8, 2018 decision to adopt Resolution R-18-

65 (the “Resolution”), which granted Entergy authorization to build the New

Orleans Power Station (the “NOPS”) in New Orleans East due to the violations of

the Open Meetings Law, La. R.S. 42:11, et seq. that occurred at the Council’s

February 21, 2018 Utility, Cable, Telecommunications, and Technology

Committee (the “Committee”) meeting. For the reasons that follow, we affirm the

decision of the trial court in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

On June 20, 2016, Entergy filed an initial application with the Council for

authorization to build the NOPS. The Council established Council Docket No. UD-

16-02 to consider the application. The Council set a procedural schedule for

Entergy’s application, which directed, among other things, that Entergy hold public

meetings on the NOPS to give information to members of the public and provide

the public an opportunity to comment. The Council adopted another resolution on

August 10, 2017, which ordered an additional public hearing to be held in the

1

Council Chamber on October 16, 2017.1 Several public interest groups intervened

as parties to the Council Docket No. UD-16-02, including Deep South Center for

Environmental Justice, 350 New Orleans, and the Sierra Club.

Following the completion of the procedural schedule under the Council

Docket No. UD-16-02, the Committee met on February 21, 2018, to consider the

Resolution to construct the NOPS. If approved by the Committee, the Resolution

would then be recommended to be considered by the full Council. An agenda

published five days prior to the meeting stated that each party to the proceeding

would be given fifteen minutes for closing argument, and each non-party would be

allowed two minutes for comment. However, while supporters of Entergy (who

were later discovered to be actors paid to attend the meeting and show support for

Entergy) were given preferential access to the meeting room, approximately fifty

to sixty members of the public were prohibited from entering the meeting due to

purported limited space. The procedures outlined in the agenda regarding who was

allowed to speak at the meeting were not followed. Representatives of Entergy,

which was a party to the proceeding, were allowed to give public comment during

the portion of the meeting reserved for non-party comment, while representatives

of other interested parties did not give a comment due to their belief that it was

prohibited by the agenda. At the conclusion of the meeting, the Committee voted

four-to-one to refer the Resolution to the full Council.

1
The October 16, 2017 meeting is not before this Court on appeal. However, there were several
members of the public who attended this meeting, and not all those who attended were able to
enter the meeting. Appellees argue that, because many members of the public were prohibited
from entering the meeting room due to limited space while Entergy supporters were seemingly
allowed immediate entry into the meeting on October 16, 2017, the Council should have
anticipated the interest in Entergy’s application to build the NOPS, and planned accordingly for
the Committee and Council meetings.

2

A full Council meeting was held on March 8, 2018. Once again, there was a

large attendance at the meeting, and some attendees were not given immediate

access due to limited space. However, unlike the Committee meeting, all those

who wished to observe the meeting and provide comments were eventually given

an opportunity to do so. At the conclusion of the meeting, the Council voted six-to-

one to approve the construction of the NOPS.

On April 19, 2018, Deep South Center for Environmental Justice, VAYLA

New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore

Quant, and Ms. Renate Heurich (collectively, the “Appellees”) filed a Petition to

Enforce the Louisiana Open Meetings Law, For Declaratory Judgment, Injunction,

Attorneys’ Fees and Costs, and Memorandum in Support (“the Petition”) in

Orleans Parish Civil District Court. The Appellees asked the trial court to declare

that the February 21, 2018 Committee meeting and March 8, 2018 Council

meeting violated Open Meetings Law; to declare the Resolution of the March 8,

2018 meeting void; and to enjoin Appellants from constructing the NOPS.

Appellees alleged that, because members of the public were prevented from

entering the meeting for observation and comment and supporters of Entergy were

given preferential access to the meetings, the Open Meetings Laws were violated at

both the Committee and the Council meetings. As attachments to the Petition,

Appellees included the affidavits of several individuals who attested to being

prevented from observing the meetings and providing comment after being told

there was no available space, while also seeing representatives of Entergy being

allowed to enter the meeting room. The affidavits attached to Appellees’ Petition

also included accounts from individuals who claimed they were made to stand in

the hallway outside the Committee meeting for several hours and were threatened

3

with arrest by security guards if they attempted to enter the meeting. An affidavit

of Ms. Heurich, one of the Appellees, stated she attended the Committee meeting

and was told there was no available space in the meeting room, but when she snuck

past security and entered the room, she was made to leave, even though she

observed approximately thirty empty seats inside.

Appellees stated that the agenda for the Committee meeting was changed

while the meeting was in progress, in violation of the Open Meetings Law because

representatives of parties to Council Docket No. UD-16-02 were allowed to speak

during the public comment period at the Committee meeting despite the agenda

expressly prohibiting this. They also alleged that the agenda for the Council

meeting did not provide a sufficiently specific description of the Council’s

consideration of the Resolution. On July 7, 2018, Appellees filed an Amended

Petition alleging that there were paid actors present at the Committee meeting who

prevented community members from entering the meeting and making comments,

which was also a violation of Open Meetings Law.

The Council answered the Petition, arguing that both the Committee meeting

and the Council meeting complied with the Open Meetings Law as both were open

to the public, were streamed live for concerned people to watch online, and

allowed for several hours of public comment. The Council argued that the Open

Meetings Law does not require that every single person who wishes to observe a

meeting of a public body be able to observe it and be present, only that the

meetings be reasonably open to the public. The Council further asserted the

meetings were reasonably open, but that the rooms in which the meetings were

held simply could not accommodate the amount of people who were present. They

argued that security was used to keep the meeting from being disrupted and to

4

ensure adherence to fire codes. The Council also argued that voiding the

Resolution would be a disservice to the public interest because of the City’s need

for the NOPS.

A hearing on Appellees’ Petition was held on July 19, 2018. At the

conclusion of the hearing, the trial court took the matter under advisement. After

several delays,2 the trial court rendered judgment on June 14, 2019, in favor of

Appellees, declaring the Resolution void because the policy behind the Open

Meetings Law was not properly adhered to. The trial court found that actions by

Entergy amounted to Open Meetings Law violations at the Committee meeting on

February 21, 2018, which the trial court stated was a “necessary component” in the

Council’s adoption of the Resolution at the Council meeting on March 8, 2018, and

which rendered the Resolution void. The trial court found no violations occurred at

the Council meeting.

This appeal3 followed.

DISCUSSION

Although Appellants filed separate briefs and worded their assignments of

error differently, they both argue that the district court erred in declaring the

actions by the Council violated the Open Meetings Law and in voiding the

Resolution for the same three reasons. First, they argue the Open Meetings Law
2
The delays were requested by Appellees because the Council had launched an investigation into
the allegations of paid actors being at the Committee meeting, and both Appellees and the trial
court believed the report from the investigation would be relevant to the trial court’s decision.
The investigation report was issued in the fall of 2018 and found that, indeed, paid actors were
present at the Committee meeting. It further found that Entergy knew or should have known that
its contractor, Hawthorn, procured these actors. The report included evidence that Charles Rice,
President and CEO of Entergy, discussed in text messages and emails with representatives of
Hawthorn about having supporters for the NOPS present at Council meetings, and even
discussed costs associated with having them.
3
Though Entergy was not named as a party in the Petition, Entergy moved for an appeal
pursuant to La. C.C.P. art. 2086, which allows an appeal when an unnamed party could have
properly intervened in the trial court.

5

applies only to public bodies, and because Entergy is not a public body, any action

Entergy may or may not have taken does not render the Resolution voidable

because Entergy is a private entity. Second, Appellants argue that any violation

which may have occurred at the Committee meeting was cured by the Council

meeting, and that the trial court erred in finding that the Committee meeting was a

“necessary component” of the Council meeting because the Home Rule Charter

does not require the Council to hold a committee meeting. Finally, Appellants

argue that, even if there were violations of the Open Meetings Law that were not

cured, the trial court abused its discretion in voiding the Resolution. We address

each argument in turn.

STANDARD OF REVIEW

Article XII, § 3 of the Louisiana Constitution states that “[n]o person shall

be denied the right to observe the deliberations of public bodies and examine

public documents, except in cases established by law.” This constitutional

provision is meant to ensure that citizens are able to observe deliberations of public

bodies and protect them from secret decisions being made without any opportunity

for input. Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 2001-1951, p. 14

(La. App. 1 Cir. 12/28/01), 805 So.2d 400, 409 (citing Delta Development

Company, Inc. v. Plaquemines Parish Commission Council, 451 So.2d 134, 138

(La. App. 4 Cir.), writ denied, 456 So.2d 172 (La. 1984).

The Louisiana legislature enacted the Open Meetings Law, La. R.S. 42:11,

et seq., to ensure that the protections of Article XII, § 3 are fulfilled. La. R.S.

42:12(A) states the purpose of the Open Meetings Law:

It is essential to the maintenance of a democratic society that public
business be performed in an open and public manner and that the
citizens be advised of and aware of the performance of public officials

6

and the deliberations and decisions that go into the making of public
policy. Toward this end, the provisions of [La. R.S. 42:11 through La.
R.S. 42:28] shall be construed liberally.

Under the Open Meetings Law, every meeting of a public body must be

open to the public, unless it is one of those few that are closed subject to statutory

provisions. La. R.S. 42:14. The provisions of the Open Meetings Law shall be

construed liberally. La. R.S. 42:12. Actions taken in violation of the Open

Meetings Law are voidable by a court of competent jurisdiction. La. R.S. 42:24.

The trial court’s ruling voiding the Resolution based on the finding that the

policy behind the Open Meetings Law was not adhered to concerns both issues of

interpretation of the Open Meetings Law, as well as its application. “Regarding

issues of law, the standard of review of an appellate court is simply whether the

court’s interpretive decision is legally correct.” Duhon v. Briley, 2012-1137, p. 4

(La. App. 4 Cir. 5/23/13), 117 So.3d 253, 257-58 (citing Glass v. Alton Ochsner

Medical Foundation, 2002-412, p. 3 (La. App. 4 Cir. 11/6/02), 832 So.2d 403, 405.

“Accordingly, if the decision of the trial court is based upon an erroneous

application of law rather than on a valid exercise of discretion, the decision is not

entitled to deference by the reviewing court.” Id. See also Pelleteri v. Caspian Grp.

Inc., 2002-2141, 2002-2142, p. 7 (La. App. 4 Cir. 7/2/03), 851 So.2d 1230, 1235;

Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C., 2010-1303, p. 4 (La. App.

4 Cir. 9/21/11), 75 So.3d 471, 474. Meanwhile, whether the Open Meetings Law

has been violated is a question of law, subject to de novo review. Harper v. State

ex rel. Its Dep't of Health & Hosps., 2014-0110, p. 7 (La. App. 4 Cir. 9/9/15), 176

So.3d 479, 486.

7

I. Applicability of Open Meetings Law

Appellants argue that Entergy, as a private entity, is not required to comply

with the Open Meetings Law and any violations Entergy may have committed

cannot properly lead to voiding the Resolution. Appellees counter that the

Committee is a public body that must ensure its proceedings comply with the Open

Meetings Law. Thus, if the Committee—and by extension, the Council—did not

ensure compliance with the Open Meetings Law, it is of no moment how the

violations occurred for the action to be voidable. We agree.

La. R.S. 42:13(A)(3) defines a public body:

“Public body” means village, town, and city governing authorities;
parish governing authorities; school boards and boards of levee and
port commissioners; boards of publicly operated utilities; planning,
zoning, and airport commissions; and any other state, parish,
municipal, or special district boards, commissions, or authorities, and
those of any political subdivision thereof, where such body possesses
policy making, advisory, or administrative functions, including any
committee or subcommittee of any of these bodies enumerated in
this paragraph. (Emphasis added).

Here, it is undisputed that the Council, as a governing authority of the City of New

Orleans is a “public body” subject to Open Meetings Law. The Utility, Cable,

Telecommunications, and Technology Committee is a committee of the Council

and as such is a “public body” under La. R.S. 42:13(A)(3). Therefore, all of the

Committee’s meetings, including the meeting of February 21, 2018, must be in

compliance with the Open Meetings Law.

As public bodies, both the Committee and the Council have the

responsibility of ensuring that their meetings comply with the Open Meetings Law.

Under La. R.S. 42:24, if the Committee or the Council do not ensure the Open

Meetings Law is not violated at its meetings, the actions taken at the meeting are

voidable and the cause of the violation is not relevant. Therefore, we find no merit

8

to Appellants’ argument that Entergy’s actions—though they were those of a

private entity—could not have led to a violation of the Open Meetings Law.

II. Violations of Open Meetings Law and Ratification

Next, we turn to whether there were, in fact, violations of the Open Meetings

Law at either the Committee meeting or the Council meeting. Appellees contend

that there were violations of the Open Meetings Law at both meetings. First, they

argue that, because citizens were prevented from entering both meetings for

observation and comment, Article XII, § 3 of the Louisiana Constitution and the

Open Meetings Law were violated because not all interested citizens were allowed

to observe the deliberations and provide comment. Second, they argue that the

agendas were untimely changed in violation of the Open Meetings Law. For the

Committee meeting, Appellees argue that, by allowing parties to the proceedings to

provide comment during the public comment portion of the meeting despite the

explicit wording of the agenda that stated each party to the proceeding would be

given fifteen minutes for closing argument and each non-party would be allowed

two minutes for comment, the agenda was changed less than twenty-four hours

prior to the meeting, in violation of La. R.S. 42:19(A)(1)(b)(ii)(aa). La. R.S.

42:19(A)(1)(b)(ii)(aa) provides that public bodies must give written public notice

of meetings, and the notice “shall include the agenda, date, time, and place of the

meeting. The agenda shall not be changed less than twenty-four hours, exclusive of

Saturdays, Sundays, and legal holidays, prior to the scheduled time of the

meeting.” For the Council meeting, Appellees argue that the agenda item regarding

the Resolution was not described with reasonable specificity, in violation of La.

R.S. 42:19(A)(1)(b)(ii)(bb).

9

Appellants dispute that there were Open Meetings Law violations at either

the Committee meeting or the Council meeting, arguing that there was opportunity

for citizens to observe the meetings in person or through television broadcast and

online streaming, making the meetings reasonably open. They contend that

Appellees’ argument that all interested citizens be able to observe meetings in

person places an unreasonable expectation on public bodies. Further, Appellants

argue it would be unreasonable to expect the Committee or the Council to shut out

citizens from attending meetings based on any financial or other motives they may

have for being present, or for the Council to be expected to ascertain those motives

in advance. Appellants further rely on the trial court’s finding that no violation of

the Open Meetings Law occurred at the Council meeting to support their argument

that the Council meeting “cured” or “ratified” any violations that may have

occurred at the Committee meeting.

The Committee Meeting on February 21, 2018

Based on our review of the record, we find, as the trial court did, that the

Committee violated the Open Meetings Law at its February 21, 2018 meeting. The

record reflects that the Committee published its agenda for the February 21, 2018

meeting on February 16, 2018. The agenda included one item: the Resolution and

Order Regarding the Application of Entergy New Orleans, Inc. for Approval to

Construct the NOPS, Docket No. UD-16-02. The agenda further provided that each

party to the proceeding would be allowed fifteen minutes for closing argument and

that “[e]ach public speaker, not a party, will be allowed two minutes” during a

public comment period. The Committee did not follow the agenda for the meeting

as published. The record shows, however, that the procedure for allowing public

comment was altered—apparently ad hoc as the meeting was in progress—to allow

10

anyone, including parties to the proceeding, to make comments during the open

comment period. As a result, some representatives of parties who attended the

meeting attempted to adhere to the procedure stated in the agenda and not make

comments during the public comment period, while representatives of Entergy,

who was also a party, were allowed to make comments during the public comment

period in addition to making closing arguments. This change to the procedure of

the agenda was made less than twenty-four hours before the meeting, in violation

of La. R.S. 42:19(A)(1)(b)(ii)(aa), which prohibits the change of an agenda “less

than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, prior

to the scheduled time of the meeting.”

Appellants contend that, even if the agenda was not completely adhered to,

this amounted to only a “technical” violation of the Open Meetings Law. We

disagree. The notice requirement in La. R.S. 42:19(A)(1)(b)(ii)(aa) serves to

advance the purpose of the Open Meetings Law because it “ensure[s] that if a

member of the public wants to be heard on a matter or observe a public body's

deliberations on an issue, he or she can check the agenda posted twenty-four hours

in advance to see if the matter is scheduled for consideration.” La. Op. Att’y Gen.

No. 15-0122 (2016). In this instance, the agenda procedure also served to help

ensure that those who wanted to provide comments at the Committee meeting were

given that opportunity and were aware of when they could or could not speak.

Not only was the agenda untimely changed in violation of the Open

Meetings Law, but the record reflects that members of the public were deprived of

the opportunity to observe the meeting and provide comments during the public

comment period at the Committee meeting due to both the change in procedure and

the barring of comments from members of the public who were made to wait in the

11

hallway due to limited space. The record shows that members of the public who

attended the meeting were prohibited from entering the meeting room and were

told that there was no available space. They were also told they could not fill out

comment cards to provide comments unless they were in the meeting room. The

record also reflects that the individuals whom Entergy paid to attend the meeting

and show support for the NOPS did not leave the meeting room once they made

comments, and many members of the public left without having the opportunity to

observe the Committee meeting or provide comment because they believed they

would not be able to enter the meeting at all. The purpose of the Open Meetings

Law is to allow members of the public to observe the meetings of their governing

bodies and voice their opinions in the decision-making process, and this purpose

was not served at the Committee meeting. La. R.S. 42:12(A); Joseph, 2001-1951,

p. 14, 805 So.2d at 409; Delta Development Company, Inc., 451 So.2d at 138.

Thus, we find that the Committee violated the Open Meetings Law at its February

21, 2018 meeting.

The Council Meeting on March 8, 2018

Next, we address the alleged violations that occurred at the Council meeting.

Appellees contend that the Council violated the Open Meetings Law by: (1) again

preventing members of the public from entering the meeting and providing

comment as the Committee did in its meeting of February 21, 2018; and (2)

publishing an agenda that was not specific enough under La. R.S.

42:19(A)(1)(b)(ii)(bb). We disagree.

First, unlike the Committee meeting, the record does not reflect that

members of the public were barred from observing the Council meeting or

providing comment. The record shows that the Council made efforts before the

12

meeting to ensure that the Open Meetings Law requirements were met, including

broadcasting the meeting and streaming it online, as well as stating that it would

remedy the issues that arose at the Committee meeting by providing an opportunity

for observation and comment to everyone. While the Council meeting was widely

attended and not all members of the public who wished to enter the meeting were

able to at first, the record reflects that, eventually, all those citizens who attended

the meeting and wished to observe it and provide comment were given the

opportunity, as the Council said. The record also reflects that the Council allowed

those citizens who were waiting in the hallway to fill out comment cards to provide

comment and that the Council allowed comments for several hours at the Council

meeting.

Second, the record contradicts Appellees’ argument that the agenda for the

Council meeting was not specific enough under La. R.S. 42:19(A)(1)(b)(ii)(bb). In

support of their argument, Appellees cite Hayes v. Jackson Par. Sch. Bd., 603 So.

2d 274 (La. App. 4th Cir. 1992). In Hayes, the administrative body of the Jackson

Parish Head Start Educational Program submitted a proposal to the school board

for additional space for the program. The proposal was to be taken up at the school

board’s regular bi-monthly meeting, and the agenda item for the proposal read

“[c]onsider request from Pine Belt Multi-Purpose Agency for additional space for

the Head Start Program.” Id. at 274. This Court held that the agenda item

description was not sufficiently specific under the Open Meetings Law because it

did not alert the public that part of the proposal was the decision to close an

elementary school and merge it with another school to provide the additional space

for a Head Start Program. This Court found that “the primary solution to the

problem [of finding space for the program] entailed closing one school and

13

consolidating it with another, [which] exceeded the scope of the agenda item as

posted.” Id. at 276.

Here, item number forty-five on the published agenda for the Council

meeting provided:

RESOLUTION - NO. R-18-65 BY: COUNCILMEMBERS
WILLIAMS, HEAD, GUIDRY, BROSSETT AND GRAY

Brief:
APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR
APPROVAL TO CONSTRUCT NEW ORLEANS POWER
STATION AND REQUEST FOR COST RECOVERY AND
TIMELY RELIEF RESOLUTION AND ORDER REGARDING
THE APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR
APPROVAL TO CONSTRUCT NEW ORLEANS POWER
STATION AND REQUEST FOR COST RECOVERY AND TIMEL
RELIEF DOCKET NO. UD-16-02.

Unlike the description found in Hayes, the description of the Council’s

agenda item to consider the construction of the NOPS is sufficiently specific under

La. R.S. 42:19(A)(1)(b)(ii)(bb). It describes the Resolution number, the Applicant

(Entergy), and the subject of the application, i.e. “approval to construct” the NOPS.

Given that the Council went on to consider (and approve) the construction of the

NOPS under the Resolution, the agenda item adequately states the scope of the

action taken by the Council. Additionally, because the record reflects that there

was a substantial amount of people present at the meeting to comment on this

particular item, the statement in the agenda was sufficient to give the public notice

of what the Council would be considering. Unlike the Committee meeting, there is

nothing in the record to suggest that the Council did not adhere to its agenda, or

that the Council did not otherwise comply with the mandates of the Open Meetings

Law.

14

Appellants argue that, because there was no violations of the Open Meetings

Law at the Council meeting, the Council meeting cured or ratified the violations

that occurred at the Committee meeting. Alternatively, Appellants argue that,

because only the Council had the authority to approve the Resolution, the

Committee and its recommendation were not necessary to adopt the Resolution,

and thus could not be a “necessary component” of the adoption process, as the trial

court ruled.

As this Court held in Delta Development Company, Inc., 451 So.2d at 137

(La. App. 4th Cir. 1984), when a public body takes an action in such a way to

violate the Open Meetings Law, the injury caused by the prior violation “may be

corrected by ratification provided the ratification is adopted after full compliance

with the law.” Ratification occurs when the public body “reconsider[s]…action

taken at a previous meeting which was in violation of the open meetings law.”

Wagner v. Beauregard Par. Police Jury, 525 So.2d 166, 170 (La. App. 3rd Cir.

1988). Alternatively, the public body can also “reconsider, repudiate and recall the

earlier improper action.” Id.

The Rules and Regulations of the Council provides at Rule 39 that the

Committee is a “standing committee.” Rule 39 further provides that, as a standing

committee, the Committee “shall make recommendations to the full Council on

Council…Resolutions…and such other reports as in their judgment will advance

the interests of…the people of the City of New Orleans.” (Emphasis added). Rule

39A(2) states that recommendations made by committees “shall be adopted by the

Council in a regular or special meeting…A committee only makes

recommendations to the full Council.” Further, the Home Rule Charter of the City

of New Orleans does not require that the City Council’s utility orders first be

15

approved by the Committee. Pursuant to Charter Section 3-130(6), orders of the

City Council in utility matters “shall be upon a resolution or an ordinance in open

council meeting and passed by an affirmative vote of a majority of all members of

the Council.” Thus, Appellants correctly point out that, under the Rules and

Regulations of the Council and the Home Rule Charter, the Committee’s action

had no binding effect on the Council, as it was only a recommendation to the

Council on the Resolution.

The distinction between the purposes of and actions taken by the Committee

and the Council is precisely why actions taken at the Council meeting could not

serve to “ratify” the actions taken at the Committee meeting: the two meetings

served two different purposes and two different actions were taken. The

Committee meeting was meant to provide the full Council with a recommendation

on Entergy’s application for the NOPS construction, and the Committee took the

action of making such a recommendation, as it is required to do under the

Council’s own regulations. Though the Council was free to accept, reject, or

modify the recommendation of the Committee, the Council meeting was meant to

put the recommendation of the Committee to full vote, adopting the Resolution and

giving Entergy approval to build the NOPS. Even if the Council meeting was in

full compliance with Open Meetings Law, the actions taken at the Committee and

Council meetings were different and served different purposes. Therefore, the

actions taken at the Council meeting could not ratify those taken at the Committee

meeting.

III. Voiding the Resolution

When the Open Meetings Law is violated, a court of competent jurisdiction

may void the action. La. R.S. 42: 24. La. R.S. 42:26 states that:

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A. In any enforcement proceeding the plaintiff may seek and the court
may grant any or all of the following forms of relief:

(1) A writ of mandamus.

(2) Injunctive relief.

(3) Declaratory judgment.

(4) Judgment rendering the action void as provided in R.S. 42:24.

(5) Judgment awarding civil penalties as provided in R.S. 42:28.

Trial courts are vested with great discretion in deciding to grant or to deny

declaratory relief and, on appellate review, the judgment of the trial court is

reviewed under an abuse of discretion standard. Delta Admin. Servs., L.L.C. v.

Limousine Livery, Ltd., 2015-0110, p. 6 (La. App. 4 Cir. 6/17/15), 216 So.3d 906,

910 (citing Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery

Marketplace, 2002-2337, pp. 4-5 (La. App. 4 Cir. 5/7/03), 847 So.2d 674, 677).

Based on our review of the record, we find that the trial court should not

have voided the Resolution. As discussed, while we agree the Open Meetings Law

was violated at the Committee meeting, we also find that there were no Open

Meetings Laws violations at the Council meeting. Though the Council’s committee

procedure disingenuously implies to the public that the Committee’s decisions are

binding on the Council, the Council’s Rules and Regulations and the Home Rule

Charter make it clear that the Council is not bound by the actions of the

Committee. The Council is free to accept, modify, or reject any or all of the

Committee’s recommendations. Therefore, the trial court erred in determining that

the Committee meeting was a “necessary component” of the Resolution’s passage,

and violations that occurred at the Committee meeting could render the Resolution

voidable. Because it is only the Council’s decision which ultimately has binding

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effect, and no violations occurred at the Council’s meeting, no remedy is necessary

where no violations occurred.

DECREE

For the foregoing reasons, we affirm the trial court’s finding that there was a

violation of the Open Meetings Law at the Committee meeting and reverse the trial

court’s judgment voiding the Council’s vote to approve the Resolution at the

Council meeting.

AFFIRMED IN PART AND REVERSED IN PART

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