| Request for reconsideration of the denial to render an Advisory Opinion regarding potential Code violations if an owner of several nighttime businesses serves as the 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.
Mr. Kaplan has provided the following information:
(1) What are the responsibilities/functions of the Office of Nighttime Economy?
Currently his responsibilities are somewhat varied as the Office of Nighttime Economy continues to take shape. The goal is to be an effective advocate and liaison for the nighttime economy performers and the various agencies and departments within city government. Currently, a significant portion of this interaction has been taking place with the NOPD, Safety and Permits, City Health Department, City Council and their constituents.
(2) Is there a staff? There is currently no staff
(3) What are your duties and responsibilities as the Director?
Duties will include, but are not limited to, addressing issues of public safety, economic development and legislative advocacy on behalf of residents, neighborhood groups, the City of New Orleans, the hospitality industry and the approximately 50,0000 people that work in it. A few examples of the work currently being done.
- Responding to neighbor complaint through a councilmember concerning a venue that was creating a parking issue for residents. Mr. Kaplan spoke with the venue manager, created a solution and has continued follow up to ascertain its effectiveness.
- Put together a coalition of venues that were a part of Southern Decadence festivities in the quarter. Disseminated information to these venues concerning monkeypox testing and vaccination. They also came together to support the NOPD by providing meals for the 100 officers providing protection in the French Quarter. In addition, Mr. Kaplan helped source Narcan from the Louisiana Department of Health for them to deal with potential overdoses.
- Working directly with the NOPD 8th district to understand better how the hospitality industry as a whole can support their efforts. Initial efforts have included collaborations between Safety and Permits, Alcohol Tobacco Control (ATC) and neighborhood organizations to resolve issues in areas where bars and restaurants create a potentially unsafe environment.
- Representing a group of business owners who would be negatively impacted by recent legislation involving Parklets. These outdoor seating areas that were implemented in the middle of the pandemic were key to keeping these spaces operational and providing a safer outdoor environment. These efforts have involved several councilmembers, Safety and Permits and the Office of Economic Development.
- Identifying changes in city code that can assist both the agencies and business owners. One effort involves matching the city Alcohol Beverage Outlet (ABO) and the state ATC permit with an option of a two year license. There are over 1,500 ABO outlets in Orleans Parish. If half of them took this option, the time savings for the issuing agency as well as for the license holder would be significant.
(4)What are the potential transactions/interactions between the Office of Nighttime Economy and Mr. Kaplan's three businesses?
Mr. Kaplan currently owns the music venue, the Howlin' Wolf, manages the Grammy Winning Rebirth Brass Band and has an ownership interest in a bakery called the Bayou Bagel Company. He anticipates the following as it pertains to interaction with this office. Howlin' Wolf - Over the past 22 years he has had limited financial interaction with the city. The most recent was as a provider of meals as a part of FEMA feeding program that involved dozens of local restaurants. He also participated in a program called NOLA x NOLA that the Office of Cultural Economy worked on with New Orleans and Company. Dozens of music venues across the city programmed shows in conjunction with each another and marketed as a group. This is partially funded by the New Orleans Tourism and Culture Fund. The Office of Nighttime Economy will not be involved in any direct enforcement or take over permitting for any of the city agencies currently regulating operation of the venue. In addition, the office does not anticipate requesting any operational funds that could be used at any venue, bar or restaurant. Rebirth Brass Band - In the 17 years , he has managed the band and have had only a handful of paid performances working for the city. This office does not have the authority or funds to hire the band directly. Bayou Bagel Company - It is currently operating as a wholesaler to grocery stores. He is in the process of trying to open a retail location. There is no anticipated contact between this office and the bagel company.
(5) What are the ethics issues that you believe may arise because of your position as Director?
As the office will have no regulatory, enforcement or funding capabilities, Mr. Kaplan doesn't anticipate any ethics issues arising from this position.
(6) How would you anticipate that the proposed transactions that present a conflict would be relinquished to the DCAO or Mr. Montano?
Mr. Kaplan has offered to recuse himself if any situation or opportunity presents itself that may present a potential conflict.
(7) Do you receive an income from the 3 business? A salary? Distribution as owner?
Mr. Kaplan receives a salary from the Howlin' Wolf. As manager of Rebirth, he receives a set percentage of revenue from out of town performances and in town private gigs. He generally does not receive any income from local, public shows. He is primarily an investor/owner of the Bayou Bagel Company. To date there is no income derived from this business as it continues to operate at a loss.
(8) What is a "nighttime economy participant?"
Nighttime economy participants include businesses, such as restaurants, hotels, music venues, bars, art markets and galleries, the people who work there and the customers they serve.
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The Board previously declined to render an Advisory Opinion in this matter since sufficient information was not provided to render an Opinion. Mr. Kaplan has asked for a reconsideration.
Currently, the Office has no other staff members. It
will have a staff in the future. Mr. Kaplan is currently in the process of
hiring its first staff member, a "Community Liaison". He expects
that job ad to be posted by the end of the year.
The office is tentatively budgeted for four staff total
(including Mr. Kaplan). Mr. Kaplan will be responsible for determining the
office's precise needs. Mr. Tom Mulligan, Deputy COA, will review all hiring requests, and whether
they can be fulfilled or not depends, among other things, on budgeting.
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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 at this time. Advise Mr. Kaplan to request an Advisory Opinion from the Board if a specific transaction or other action appears to be in violation of the Code of Governmental Ethics.
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| Assigned Attorney: |
Mallory Guillot |
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