Case 2:12-cv LMA-MBN Document 761 Filed 11/07/14 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

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1 Case 2:12-cv LMA-MBN Document 761 Filed 11/07/14 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ) LASHAWN JONES, ET AL, ) Plaintiffs; and ) UNITED STATES OF AMERICA, ) Plaintiffs in Intervention ) ) v. ) ) ) MARLIN N. GUSMAN, ET AL, ) Defendants ) Civil Action No. 2:12-cv ) Section I, Division 1 ) Judge Lance M. Africk MARLIN N. GUSMAN, ) Magistrate Judge Sally Shushan Third-Party Plaintiff ) ) v. ) ) THE CITY OF NEW ORLEANS, ) Third-Party Defendant ) ) MOTION TO ORDER CITY OF NEW ORLEANS TO IMMEDIATELY FUND JAIL OPERATIONS THROUGH THE END OF 2014 AND TO ORDER FULL PAYMENT OF FF&E COSTS ASSOCIATED WITH PHASE II FACILITY NOW INTO COURT, through undersigned counsel, comes Sheriff Marlin Gusman, who moves this Honorable Court to issue an Order directing the City of New Orleans to comply with its statutory obligation to fully fund all jail operations through the end of 2014, including $900,000 which is urgently and immediately needed to fund past-due payables at the jail. The Sheriff further moves this Court to Order the City of New Orleans to pay all fixtures, furniture, and equipment (FF&E) costs for items which are currently estimated to be needed to open the new Phase II facility. For the reasons set forth in the accompanying memorandum in support, this motion

2 Case 2:12-cv LMA-MBN Document 761 Filed 11/07/14 Page 2 of 3 should be GRANTED. Respectfully submitted, USRY, WEEKS & MATTHEWS /s/blake J. Arcuri Freeman R. Matthews (9050) Blake J. Arcuri (32322) 1615 Poydras St., Suite 1250 New Orleans, LA (t) ; (f) GAUTHIER, HOUGHTALING & WILLIAMS, L.L.P. James M. Williams (26141) Inemesit U. O Boyle (30007) 3500 N. Hullen Street Metairie, Louisiana Telephone: (504) Facsimile: (504) CERTIFICATE I hereby certify that I have caused a copy of this pleading to be served upon all other parties hereto through the EM/CMF filing system, this the 7th day of November, /s/blake J. Arcuri

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4 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 1 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ) LASHAWN JONES, ET AL, ) Plaintiffs; and ) UNITED STATES OF AMERICA, ) Plaintiffs in Intervention ) ) v. ) ) ) MARLIN N. GUSMAN, ET AL, ) Defendants ) Civil Action No. 2:12-cv ) Section I, Division 1 ) Judge Lance M. Africk MARLIN N. GUSMAN, ) Magistrate Judge Sally Shushan Third-Party Plaintiff ) ) v. ) ) THE CITY OF NEW ORLEANS, ) Third-Party Defendant ) ) MEMORANDUM IN SUPPORT OF MOTION TO ORDER CITY OF NEW ORLEANS TO IMMEDIATELY FUND JAIL OPERATIONS THROUGH THE END OF 2014 AND TO ORDER FULL PAYMENT OF FF&E COSTS ASSOCIATED WITH PHASE II FACILITY MAY IT PLEASE THE COURT: The City of New Orleans is solely responsible for funding detention facilities of the Orleans Parish Sheriff s Office. Despite repeated requests to address critical funding shortfalls, the City continues to defer substantive action, necessitating urgent chains and telephone calls in the hope of obtaining last-minute advances in the hope of paying past-due bills prior to terminations of service. The Orleans Parish Sheriff s Office is, for the third time in as many months, unable to meet its obligations of payroll and payables necessary to operate the jail facilities. To continue

5 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 2 of 9 jail operations for the remainder of 2014, the Sheriff s Office requires an additional $3.7 million, even when taking all Sheriff s Office funds (which is not City money, and is needed for OPSO operations) and devoting 100% of them to jail operations. Additionally, while the City ignored its legal obligation to provide a jail, the jail being constructed by Sheriff Gusman is in need of $2.9 million worth of fixtures, furniture, and equipment (FF&E) prior to operation of that facility. The Sheriff s Office has sought these funds from the City and has received an unacceptable and badfaith response, the Sheriff s Office now asks this Court to provide immediate relief. A. The City was put on notice that the City s 2014 budget allocation was insufficient from the moment the OPSO presented its 2014 budget to the City Council. For fiscal year 2014, the jail was budgeted a total of $24,000,000. That funding is provided to the Sheriff s Office in bi-monthly payments totaling $986,680.75, with the remainder of the money being withheld by the City in order to pay the Sheriff s Office to operate the Electronic Monitoring Program, a program which is supposed to be funded pursuant to its own separate collective endeavor agreement, but which the City has now decided to deduct from the money which is budgeted to operate the jail. As the Sheriff s Office made clear in its budget request to the City, in which the Sheriff s Office requested $44,000,000 for FY 2014, the budgeted amount of $24,000,000 is woefully inadequate to operate the jail facilities of the Orleans Parish Sheriff s Office. This fact has not only been substantiated by the testimony of the Monitor, as well as the filings of the plaintiffs and the United States, but manifests itself in the inability of the Sheriff s Office to even complete payroll of only the staff associated with jail operations based upon the entire budgeted amount. Further, this very issue has been repeatedly arising for months, requiring constant attention and

6 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 3 of 9 urgent requests for supplemental funding to even make payroll. 1 The members of the monitoring team appointed by the Court bring a level of expertise regarding jail operations which would rival that of any group one could fathom. After multiple visits to and inspections of the conditions at the facilities, interviews with staff and inmates, review of Orleans Parish Sheriff s Office financial documents, and meetings with the City officials, Mrs. McCampbell has already testified that the jail cannot be operated in a constitutional manner given the current level of funding. The plaintiffs and the United States have echoed this sentiment throughout, including in pleadings filed before the Court. The Budget Working Group has spent several weeks evaluating the finances of the Sheriff s Office, and while their report has not yet been completed, it is apparent that the City s long-perpetuated myths of hidden money and mismanaged funds have come unraveled. B. The City must be ordered to pay the full costs of operation of the jail through the end of 2014, and must not be allowed to credit Orleans Parish Sheriff s Office funds to defray City obligations to fully fund jail operations While it is anticipated that a partial motion for summary judgment filed by the Sheriff s Office will follow on this very issue, it must be mentioned in the instant motion to preclude the baseless arguments almost certainly to be raised by the City. The City is obligated to fund all jail operations pursuant to various provisions of Louisiana law, including La. R.S. 13:5604 (salaries of the sheriff, and his deputies, assistants and clerks), La. R.S. 15:702 (physical maintenance of all parish jails and prisons), La. R.S. 15:703 (medical care), La R.S. 15:705 and 757 (feeding and clothing of prisoners) and La. R.S. 33:4715 (providing a good and sufficient jail. ) Stated very clearly in the controlling case on this issue, there is no provision in any law 1 See Exhibit A, Correspondence from Blake Arcuri and Sharonda Williams.

7 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 4 of 9 which mandates that any of the duties required to be performed by the Sheriffs are to be at their expense. Amiss v. Dumas, 411 So.2d. 1137, 1141 (La.App. 1 Cir. 1982), writ denied, 415 So.2d 940 (La. 1982). In City of Shreveport v. Caddo Parish, 658 So.2d 786; (La.App. 2 Cir. 1995), writ denied 663 So.2d 729 (La. 1995), the court dismissed any claims that the Sheriff was required to expend his office s funds on the costs of jail operations, noting that, [i]n relevant part, LSA-R.S. 15:304 states: All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison... shall be paid by the respective parishes in which the offense charged may have been committed or by the City of New Orleans, as the case may be. [Emphasis theirs]. The court went on to further reject the City s argument that it was entitled to some credit or reimbursement for its fixed costs of jail operation, including heating and utilities, salaries, and staff, as a result of the Sheriff housing State DOC prisoners. Id. at Nonetheless, the City of New Orleans continues to employ a tactic by which it reviews the revenues of the Orleans Parish Sheriff s Office (which the City does not fund, and which complies with its legal obligations outside of the jail) and credits those revenues to the costs of jail operations, for which the City is legally responsible. The City s argument, that those are taxpayer dollars too, is a logical fallacy which requires one to ignore the fact that taxpayer dollars are constitutionally and statutorily divided by the taxpayers to different sects of government for different purposes, and that state law directs that the taxpayer dollars allocated to the City of New Orleans, not the Orleans Parish Sheriff s Office, be used for all costs of jail operations. The Orleans Parish Sheriff s Office is not a City department or agency, nor is the Orleans Parish Sheriff s Office funded by the City of New Orleans. The City does not fund the Orleans Parish Sheriff s Office in any way, it merely pays the costs of jail operations, which is one portion

8 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 5 of 9 of the Orleans Parish Sheriff s duties. The City s decision to apply its budgetary process to the jail has no relevance to any entity other than the City for purposes of its own internal cost projections. The funding owed by the City to the Sheriff is not subject to the City s budgeting process, nor is it subject to budget cuts, reallocations, nor does the Sheriff s Office have to operate within the amount budgeted by the City; rather, it is a state-law obligation which requires the City to pay all costs associated with operating the jail. While this issue was clearly established at each hearing relative to funding, without a single legal citation in rebuttal, the City continues to credit the Orleans Parish Sheriff s Office revenues as its own, expecting the Sheriff to deplete all revenues from civil commissions and forfeitures in order to pay for City inmates. This clearly established legal issue must be addressed by this Court to avoid the host of issues caused by the City when attempting to continuously confuse the issues of the Orleans Parish Sheriff s Office funds and the funds owed by the City to operate the jail. C. The total funding amount provided by the City to the Sheriff does not even cover the payroll at the jail. The City s payments of $986, are insufficient to even cover payroll costs associated with only OPSO staff involved in jail operations, and do not even begin to address the costs of operating or maintaining any facilities, providing food to inmates, providing medical care to inmates, clothing any inmates, or taking any step to provide a good and sufficient jail, including the need to have additional money to recruit, hire, train and pay desperately needed staff. Further, the City has apparently taken the position that electricity and water are not costs of operating jails, as it has refused to pay utility costs on any jail facility which it does not hold the title to, and now only pays utility bills in the Orleans Parish Prison, ignoring any bills relative to Templeman V, the Temporary Detention Center, Conchetta, the kitchen/warehouse, and the new Phase II

9 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 6 of 9 housing facility, all facilities housing Orleans Parish inmates. The Sheriff s Office has, for months, provided full and complete access to all financial records and provided a completed cash workflow sheet to the City, which has been updated as bills arrive and projections become definite. As of November 6, 2014, the Sheriff s Office projects a $3.7 million shortfall before the end of 2014, and notes that this figure includes taking every cent from the Orleans Parish Sheriff s Office funds (which are not budgeted by the City, and are needed for other Sheriff s Office tasks) to keep the jail in operation, which is not a responsibility of the Sheriff s Office. While Mr. Kopplin has indicated that he would propose an ordinance to the City Council to appropriate $3.7 million to the OPSO, 2 the actual vote is not expected to occur until November 20, In the interim period, the Sheriff s Office has not been able to pay bills for inmate pharmaceutical, inmate food, and IT services for the jail. While the City had already been provided with the cashflow projection, the City was again advised by on Tuesday, November 11, 2014 of the need for an immediate advance or supplement of funds for jail payables. The City Attorney only responded a single time, asking if the Sheriff s Office had paid for the vehicles the Orleans Parish Sheriff s Office purchased with Orleans Parish Sheriff s Office funds, again attempting to credit itself with another agency s tax dollars and ignoring its obligation to pay for all jail costs. 3 The Sheriff s Office asks that the Court order the City to immediately pay $900,000 to the Sheriff s Office to pay for the critical payable services needed to sustain the inmate population, which is a sole obligation of the City of New Orleans. To any extent that the Court is inclined to reserve an order relative to the remainder of the $3.7 million needed to continue operations for the remainder of 2014 on the grounds of the City s pursuit of a budget amendment ordinance, the 2 See Exhibit B, November 5 letter from Mr. Kopplin to Sheriff Gusman. 3 See Exhibit C, correspondence between Blake Arcuri and Sharonda Williams.

10 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 7 of 9 Sheriff s Office reserves its right in this motion to pursue the full amount of funding needed to operate the jail, as the City s statutory funding obligation is neither contingent on any ordinance nor subject to the whims of the City Council. D. The City is required to pay all remaining FF&E costs associated with opening and operating the new Phase II jail facility The City ignored its legal responsibility to provide the Sheriff s Office with a good and sufficient jail, thus the Sheriff s Office undertook the process of constructing the Phase II inmate housing facility. In order to open and operate the Phase II facility, the Sheriff s Office needs fixtures, furniture and equipment which was not funded by FEMA as part of the new jail facility. While the City was advised that there would be a need for funds to complete the FF&E several months ago, the City was provided with the full, itemized list after it was completed in October of 2014, totaling $2,937, The City was informed that due to the delays between ordering items and arrival at the facility, many of the items, including mattresses, must be ordered imminently to have any chance of arrival prior to the January 2, 2015 anticipated transition date. Chief Ursin advised the City that while the OPSO did not have FEMA funds which could be used for these FF&E items, the OPSO would comply with all FEMA purchasing requirements in the event that the City of New Orleans located a means of using its own FEMA funds for these purchases or seeking reimbursement at a later date. On November 6, 2014, the City advised the Sheriff s Office that it had identified OPSO FEMA project worksheets as a funding source for the FF&E, information purportedly obtained from the testimony of the FEMA representative at the June, 2013 hearing in this matter; testimony which the City of New Orleans has previously declared to be inaccurate. The suggestion that the Sheriff 4 See Exhibit D, list of current estimated FF&E needs compiled by Chief Tidwell and the Transition Team.

11 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 8 of 9 has access to substantial FEMA funds to pay for the needed FF&E is completely incorrect, in bad faith, and constitutes yet another attempt of the City of New Orleans to ignore its legal obligations to provide a good and sufficient jail. As such, the City of New Orleans should be ordered to immediately provide the Sheriff s Office with the full amount currently identified as needed for FF&E, which is $2,937, CONCLUSION The Sheriff s Office is in urgent need of $900,000 to meet its payable obligations, which are past due and are direct jail costs. Including those funds, the Sheriff s Office needs a total of $3.7 million to continue jail operations through the end of Further, the Sheriff s Ofice requires $2,937, to purchase what is currently identified as the FF&E needs of the new Phase II housing unit, all items which are jail costs and are the legal responsibility of the City. Respectfully submitted, USRY, WEEKS & MATTHEWS /s/blake J. Arcuri Freeman R. Matthews (9050) Blake J. Arcuri (32322) 1615 Poydras St., Suite 1250 New Orleans, LA (t) ; (f) GAUTHIER, HOUGHTALING & WILLIAMS, L.L.P. James M. Williams (26141) Inemesit U. O Boyle (30007) 3500 N. Hullen Street Metairie, Louisiana Telephone: (504) Facsimile: (504)

12 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 9 of 9 CERTIFICATE I hereby certify that I have caused a copy of this pleading to be served upon all other parties hereto through the EM/CMF filing system, this the 7th day of November, /s/blake J. Arcuri

13 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ) LASHAWN JONES, ET AL, ) Plaintiffs; and ) UNITED STATES OF AMERICA, ) Plaintiffs in Intervention ) ) v. ) ) ) MARLIN N. GUSMAN, ET AL, ) Defendants ) Civil Action No. 2:12-cv ) Section I, Division 1 ) Judge Lance M. Africk MARLIN N. GUSMAN, ) Magistrate Judge Sally Shushan Third-Party Plaintiff ) ) v. ) ) THE CITY OF NEW ORLEANS, ) Third-Party Defendant ) ) NOTICE OF SUBMISSION To: City of New Orleans, through Sharonda Williams, Esq. PLEASE TAKE NOTICE that the attached Motion to Order City of New Orleans to Immediately Fund Jail Operations through the End of 2014 and to Order Full Payment of FF&E Costs Associated with the Phase II Facility will be brought for hearing before the Honorable Lance M. Africk, on the 3rd day of December, 2014, at 9:00 a.m., or such other date and time as the Court may order, in the United States Court House, 500 Poydras Street, New Orleans, Louisiana. You are invited to attend and participate as you deem appropriate.

14 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 2 of 2 Respectfully submitted, USRY, WEEKS & MATTHEWS /s/blake J. Arcuri Freeman R. Matthews (9050) Blake J. Arcuri (32322) 1615 Poydras St., Suite 1250 New Orleans, LA (t) ; (f) GAUTHIER, HOUGHTALING & WILLIAMS, L.L.P. James M. Williams (26141) Inemesit U. O Boyle (30007) 3500 N. Hullen Street Metairie, Louisiana Telephone: (504) Facsimile: (504) CERTIFICATE I hereby certify that I have caused a copy of this pleading to be served upon all other parties hereto through the EM/CMF filing system, this the 7th day of November, /s/blake J. Arcuri

15 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 1 of 12 Exhibit A

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28 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 1 of 5 From: To: Cc: Bcc: Subject: Date: Blake Arcuri shrwilliams@nola.gov Ursin, Jerry (ursinj@opso.us); Boyer, Elizabeth (boyere@opso.us) "mngusman@opso.us" OPSO Funding Tuesday, November 04, :28:00 AM Sharonda: I spoke with the Sheriff and Chief Ursin, and we understand that Andy is going to be introducing an ordinance to modify the OPSO funding for the remainder of the year. However, the OPSO is in a position where it is unable to make payables (food, pharmacy, IT) totaling $900,000. It s my understanding that the payable shortfall has already been discussed in the meetings with Eric. As such, please let me know if there s a way to advance/supplement the OPSO budget in that amount this week so that the office is able to pay for those services. Let me know if you have any questions or need further info. Thanks Blake Blake J. Arcuri USRY, WEEKS & MATTHEWS 1615 Poydras St., Suite 1250 New Orleans, LA Tel ; Fax barcuri@uwmlaw.com Exhibit C

29 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 2 of 5 From: To: Subject: Date: Sharonda R. Williams Blake Arcuri RE: OPSO Funding Wednesday, November 05, :38:33 AM Have you already sent in payment for the $377k worth of vehicles they were planning on purchasing? Sharonda R. Williams City Attorney City of New Orleans Law Department 1300 Perdido Street Suite 5E03 New Orleans, LA Phone: Mobile: Fax: shrwilliams@nola.gov This electronic mail transmission may constitute an attorney-client communication that is privileged at law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by reply , so that our address record can be corrected. In accordance with 31 C.F.R. Section 10.35(b)(4), this message has not been prepared, and may not be relied upon by any person, for protection against any federal tax penalty. From: Blake Arcuri [mailto:barcuri@uwmlaw.com] Sent: Tuesday, November 04, :29 AM To: Sharonda R. Williams Cc: Ursin, Jerry (ursinj@opso.us); Boyer, Elizabeth (boyere@opso.us) Subject: OPSO Funding Sharonda: I spoke with the Sheriff and Chief Ursin, and we understand that Andy is going to be introducing an ordinance to modify the OPSO funding for the remainder of the year. However, the OPSO is in a position where it is unable to make payables (food, pharmacy, IT) totaling $900,000. It s my understanding that the payable shortfall has already been discussed in the meetings with Eric. As such, please let me know if there s a way to advance/supplement the OPSO budget in that amount this week so that the office is able to pay for those services. Let me know if you have any questions or need further info. Thanks Blake Blake J. Arcuri Exhibit C

30 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 3 of 5 USRY, WEEKS & MATTHEWS 1615 Poydras St., Suite 1250 New Orleans, LA Tel ; Fax barcuri@uwmlaw.com Exhibit C

31 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 4 of 5 From: To: Subject: Date: Blake Arcuri Sharonda R. Williams; Jerry Ursin RE: OPSO Funding Wednesday, November 05, :44:30 AM Yes, their vehicles have been purchased. These were the same vehicles I was asking about 18 months ago for help from the City, and the OPSO never got anything other than a statement to use FEMA funds, which the Sheriff doesn't have. Further, while the City has the responsibility of buying the vehicles, since they are all vehicles used as part of jail operations, they should have been paid for by the city, but the Sheriff's Office was again forced to use its own resources to subsidize the City. If this is going to be an issue, let me know and I'll contact the appropriate parties today. Thanks Blake Sent from Nine From: "Sharonda R. Williams" <shrwilliams@nola.gov> Sent: Nov 5, :38 AM To: Blake Arcuri Subject: RE: OPSO Funding Have you already sent in payment for the $377k worth of vehicles they were planning on purchasing? Sharonda R. Williams City Attorney City of New Orleans Law Department 1300 Perdido Street Suite 5E03 New Orleans, LA Phone: Mobile: Fax: shrwilliams@nola.gov This electronic mail transmission may constitute an attorney-client communication that is privileged at law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have Exhibit C

32 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 5 of 5 received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by reply , so that our address record can be corrected. In accordance with 31 C.F.R. Section 10.35(b)(4), this message has not been prepared, and may not be relied upon by any person, for protection against any federal tax penalty. From: Blake Arcuri [mailto:barcuri@uwmlaw.com] Sent: Tuesday, November 04, :29 AM To: Sharonda R. Williams Cc: Ursin, Jerry (ursinj@opso.us); Boyer, Elizabeth (boyere@opso.us) Subject: OPSO Funding Sharonda: I spoke with the Sheriff and Chief Ursin, and we understand that Andy is going to be introducing an ordinance to modify the OPSO funding for the remainder of the year. However, the OPSO is in a position where it is unable to make payables (food, pharmacy, IT) totaling $900,000. It s my understanding that the payable shortfall has already been discussed in the meetings with Eric. As such, please let me know if there s a way to advance/supplement the OPSO budget in that amount this week so that the office is able to pay for those services. Let me know if you have any questions or need further info. Thanks Blake Blake J. Arcuri USRY, WEEKS & MATTHEWS 1615 Poydras St., Suite 1250 New Orleans, LA Tel ; Fax barcuri@uwmlaw.com Exhibit C

33 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 1 of 9 Exhibit D

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41 Case 2:12-cv LMA-MBN Document Filed 11/07/14 Page 9 of 9 Exhibit D