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Advisory opinion request regarding whether Ellison Builders, L.L.C, (Ellison Builders) a company owned by the brother of Leslie Ellison, a member of the Orleans Parish School Board (OPSB), may enter into subcontracts with companies who were awarded contracts with the OPSB and/or the Recovery School District (RSD). |
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Ms. Leslie Ellison is a member of the Orleans Parish School Board. Her brother is the owner of the general commercial construction company, Ellison Builders. The company may be hired as a subcontractor to perform work on school construction projects in Orleans Parish: 1.) The Phyllis Wheatley new school construction ("the Wheatley Project") and 2.) The Eleanor McCain High School new gymnasium ("the McCain Project"). The Wheatley Project was bid out and awarded to Gibbs Construction, L.L.C., by the RSD. The McCain Project was bid out and awarded to Ellis Construction, Inc., by the OPSB.
The Gibbs contract for the Wheatley Project is supervised by RSD administrators in conjunction with the RSD's project manager, Jacobs-CSRS. Likewise, the McCain Project is supervised by OPSB administrators in conjunction with the OPSB's project manager, Jacobs-CSRS. The OPSB and the RSD issue payment to their general contractors for work performed, while each general contractor is responsible for paying its subcontractors. Neither the RSD nor the OPSB pays subcontractors directly.
Ellison Builders is a certified Disadvantaged Business Enterprise (DBE). Both the OPSB and the RSD have instituted DBE programs that require general contractors to put forth a good faith effort to retain qualified DBE's as subcontractor's on their projects. Pursuant to these DBE programs, both the OPSB and the RSD monitor the general contractors' compliance with the established DBE goal. Failure to establish a good-faith effort to comply with the established goal may be cause for termination of the general contract. Also, both the OPSB and the RSD may refer general contractors to a list of DBE's that are certified by public bodies or agencies external to the OPSB and the RSD (e.g. the City of New Orleans or the Louisiana Unified Certification Program) in order to assist general contractors in their efforts to meet their DBE goals.
Finally, it should be noted that while the OPSB is the elected school board for the entire Parish of Orleans, it does not have any jurisdiction whatsoever over the RSD or any RSD contracts. The RSD is an intermediate educational unit which falls under the jurisdiction of the Louisiana Department of Education.
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Section 1113A of the Code of Ethics states that the immediate family member of a public servant or a legal entity in which he has a controlling interest, may not bid on, or enter into, and contract, subcontract, or other transaction under the supervision or jurisdiction of the public servant's agency.
According to Section 1112 of the Code of Ethics, a public servant, except as provided in R.S. 42:1120, shall not participate in a transaction involving the governmental to which any member of her immediate family has a substantial economic interest. Section 1120 states that if any elected official, in the discharge of a duty or responsibility of her office or position, would be required to vote on a matter which would be a violation of Section 1112, she shall recuse herself from voting.
An elected official who recuses herself from voting shall not be prohibited from participating in the discussion and debate concerning the matter, provided that she makes the disclosure of her conflict or potential conflict a part of the record of her agency prior to participation in the discussion or debate and prior to the vote that is the subject of the discussion or debate. Section 1114 of the Code requires a public servant or a member of her immediate family, who derives a thing of economic value, directly, through any transaction, involving the agency of such public servant or who derives a thing of economic value through a person which has bid on or entered into or is in any way financially interested in any contract, subcontract, or any other transaction under the supervision or jurisdiction of the agency of such public shall file a disclosure statement with the Board of Ethics stating: 1.) the amount of income derived, 2.) the nature of the business activity, 3.) name and address, and relationship to the public servant, and 4.) the name and business address of the legal entity.
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Adopt proposed advisory opinion.
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| Assigned Attorney: |
Brent Durham |
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