| Advisory Opinion request of Sharonda R. Williams, o/b/o Zachary R. Smith, Chief of Staff to Deputy Chief Administrative Officer Peter Bowen, as to the post-employment restrictions following his resignation from the City of New Orleans. |
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Zachary Smith was hired by the City of New Orleans ("City") in 2009. In December of 2014, Mr. Smith became the Chief Building Official in the Department of Safety & Permits. In this position, Mr. Smith supervises building code plan review and inspections for the City, such that all permits for construction are issued and inspected by staff under his oversight. On June 17, 2018, Mr. Smith became the Director of the Dept. of Safety & Permits, where he supervised the entire safety and permitting department. While serving as Director, Mr. Smith remained Chief Building Official for purposes of building code plan review and inspections.
On March 2, 2020, Mr. Smith was moved into the position of Chief of Staff to Peter Bowen, Deputy Chief Administrative Officer ("CAO") over the Office of Business & External Services, which oversees Economic Development and Land Use, the latter of which includes the Dept. of Safety & Permits. In his current position, Mr. Smith is responsible for preparing meeting agendas, coordinating schedules, and oversees staffing operations. As Chief of Staff, Mr. Smith does not have any oversight over specific projects or assignments within the Office of Business & External Services. Mr. Smith still serves as Chief Building Official for the purpose of building plan review and inspections; however, he does not currently maintain any supervision or oversight of the employees in the Dept. of Safety & Permits.
Mr. Smith is a licensed architect and intends to work in the construction and architectural industries to provide architectural consulting, advising, building code expertise, and design build consulting services. Mr. Smith asks several questions concerning the post-employment restrictions of the Code that would apply upon his resignation from the City.
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La. R.S. 42:1121A(1): No former agency head shall, for a period of two years following the termination of his public service as the head of such agency, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction, involving that agency or render any service on a contractual basis to or for such agency.
La. R.S. 42:1121B(1): No former public employee shall, for a period of two years following the termination of his public employment, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such former public employee participated at any time during his public employment and involving the governmental entity by which he was formerly employed, or for a period of two years following termination of his public employment, render, any service which such former public employee had rendered to the agency during the term of his public employment on a contractual basis, regardless of the parties to the contract, to, for, or on behalf of the agency with which he was formerly employed.
La. R.S. 42:1121C: No legal entity in which a former public servant is an officer, director, trustee, partner, or employee shall, for a period of two years following the termination of his public service, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such public servant at any time participated during his public service and involving the agency by which he was formerly employed.
DEFINITIONS:
La. R.S. 42:1102(2)(a)(vi) defines "agency of the public servant" and "his agency," for public servants of political subdivisions to mean the department, office, division, agency, commission, board, committee, or other organizational unit of the political subdivision in which the public servant serves.
La. R.S. 42:1102(3) defines "agency head" to mean the chief executive or administrative officer of an agency … who exercises supervision over the agency.
La. R.S. 42:1102(4) defines "assist" to mean to act in such a way as to help, advise, furnish information to, or aid a person with the intent to assist such person.
La. R.S. 42:1102(16) defines "person" to mean an individual or legal entity other than a governmental entity, or an agency thereof.
La. R.S. 42:1102(15) defines "participate" to mean to take part in or to have or share responsibility for action of a governmental entity or a proceeding, personally, as a public servant of the governmental entity, though approval, disapproval, decision, recommendation, the rendering of advice, investigation, or the failure to act or perform a duty.
La. R.S. 42:1102 (12) defines "governmental entity" to mean the state or any political subdivision which employs the public employee or employed the former public employee.
La. R.S. 42:1112B: No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:(1) Any member of his immediate family.
(2) Any person in which he has a substantial economic interest of which he may reasonably be expected to know.
(3) Any person of which he is an officer, director, trustee, partner, or employee.
(4) Any person with whom he is negotiating or has an arrangement concerning prospective employment.
(5) Any person who is a party to an existing contract with such public servant, or with any legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, or who owes any thing of economic value to such public servant, or to any legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, and who by reason thereof is in a position to affect directly the economic interests of such public servant.
La. R.S. 42:1102(19) defines "public servant" to include any public employee or elected official.
La. R.S. 42:1102(18)(a) defines "public employee" to mean anyone who is:
(i) an administrative officer or official of a governmental entity who is not filling an elective office; (ii) appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof;
(iii) engaged in the performance of a governmental function; or
(iv) under the supervision or authority of an elected official or another employee of the governmental entity.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
David Bordelon |
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