| Request for Advisory Opinion regarding potential Code violations if an owner of several nighttime businesses accepts a position as Director of the Office Nighttime Economy for the City of New Orleans. |
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The City of New Orleans offered Howie Kaplan a
position as the Director of the Office of Nighttime Economy. Currently, Mr. Kaplan is the 100% owner of the "The Howlin' Wolf" music
venue in downtown New Orleans; manages the Rebirth Brass Band; and, owns 50% of Louisiana Bred d/b/a Bayou Bagel Co. ("Louisiana Bred"). Mr. Kaplan informed
the Board that a transaction could arise within the Office of Nighttime Economy
involving one or more of the three entities with which he has ownership interest or
managerial authority. Additionally, Mr. Kaplan stated that the mission of the office
is to create more diverse and robust nighttime economy, "improve the quality of
life of nighttime economy participants, and promote better relations between
nighttime businesses and surrounding residents".
Mr. Kaplan has submitted a disqualification plan that details that all transactions involving one or more of the three entities previously listed will be handled by the Deputy Chief Administrative Officer responsible for the Office of Business & External Services ("DCAO"). If the DCAO is absent, Gilbert Montaño, Chief Administrative Officer of the City of New Orleans, will handle any transaction involving the three entities previously discussed with the City of New Orleans.
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I have attempted to contact Mr. Kaplan numerous times to obtain additional information. I spoke with him once over the phone explaining the need for additional information. He told me he would provide more information, but has yet to do so. He has not responded to subsequent emails or phone calls.
Many questions have been left unanswered by Mr. Kaplan. Without answers to those questions, the Board cannot provide adequate advice to Mr. Kaplan.
Those questions include:
What
are the responsibilities/functions of the Office of Nighttime Economy?
Is there a staff? If yes, how many?
What are
their duties?
What
are his duties and responsibilities as the Director?
What
are the potential transactions/interactions between the Office of
Nighttime Economy and his three businesses?
How
would he anticipate that the proposed transactions that present a conflict
would be relinquished to the DCAO or Mr. Montano?
Does
he get income from the 3 business? A salary? Distribution as owner?
Does
he hold a position with the 3 businesses?
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La.
R.S. 42:1102(2)(a)(i) defines "agency" to mean a department, office, division,
agency, commission, board, committee, or other organizational unit of a
governmental entity. "Agency of the
public servant" and "his agency" when used in reference to the agency of a
public servant shall mean for public servants in the twenty principal
departments of the executive branch of state government, the office in which
such public servant carries out his primary responsibilities.
La. R.S.
42:1102(18)(a) defines "public employee" to mean any person, whether
compensated or not who is: (iii) engaged in the performance of a
governmental function; (iv) under the supervision or authority of an
elected official or another employee of the governmental entity.
La. R.S.
42:1102(19) defines "public servant" to mean a public employee or elected
official.
La. R.S.
42:1111(A)(1)(a) prohibits a public servant from receiving anything of economic
value, other than compensation and benefits from the governmental entity to
which is duly entitled, for the performance of the duties and responsibilities
of his office or position.
La. R.S.
42:1111(C)(1) prohibits a public servant from receiving anything of economic
value for any service which: 1. Is substantially related to the duties and
responsibilities, programs, or operations of the agency of the public servant
AND in which the public servant participated; OR 2. Substantially draws upon
official data or ideas of the agency which have not been made a part of public
information.
La. R.S.
42:1111(C)(2)(d) provides that a public servant and a legal entity in which the
public servant exercises control or owns in excess of 25%, are prohibited from
receiving anything of economic value for services rendered or to be rendered to
or for the following persons:
1. Any person who has or is seeking to obtain
a contractual, business or financial relationship with the public servant's
agency; OR
2. Any person who
conducts operations or activities which are regulated by the public employee's
agency;
OR 3. Any person who has
a substantial economic interest which may be substantially affected by the
performance or nonperformance of the public employee's official job duties.
La. R.S.
42:1112(A) states that no public servant shall participate in a transaction in
which he has a personal substantial economic interest of which he may be
reasonably expected to know involving the governmental entity.
La. R.S. 42:1112(B)(2) prohibits a public servant from
participating in a transaction involving the governmental entity in which the
following person has a substantial economic interest: any person in which he
has a substantial economic interest of which he may reasonably be expected to
know.
La. R.S. 42:1112(B)(3) prohibits a public servant from participating in a
transaction involving the governmental entity in which the following person has
a substantial economic interest: any person of which is an officer, trustee,
partner, or employee.
La. R.S. 42:1112(B)(5) prohibits
a public servant from participating in a transaction involving the governmental entity in which the following person
has a substantial economic interest: 1) any person who is a party to an existing contract with either 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 2) who owes anything
of economic value either 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. 42:1112(C) allows
a disqualification plan to be developed in accordance with rules adopted by the
Board to remove a public servant from participating in transactions that would
otherwise present violations of Section 1112 of the Code.
La. R.S. 42:1113(A)(1)(a)
states that no public servant, or member of such a public servant's immediate
family, or legal entity in which he has a controlling interest shall bid on or
enter into any contract, subcontract, or other transaction that is under the
supervision or jurisdiction of the agency of such public servant.
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Decline to render an advisory opinion.
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| Assigned Attorney: |
Mallory Guillot |
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