Suit against BC Council may set off hidden bomb

With lawsuits and petitions flying around, it’s not a great time to be one of the Bossier City Council graybeards or their puppy dog – and sitting on potentially a huge bomb waiting to explode over an incident where graybeards’ actions cost the city tens of millions of dollars.

For months, the Council majority bloc of graybeards Republicans David Montgomery and Jeff Free, Democrat Bubba Williams, and no party Jeff Darby, plus their newcomer lapdog Republican Vince Maggio, have fought tooth and nail to prevent having to follow the city charter and schedule a referendum on a three-term lifetime and retroactive limit to elected officials (all but Maggio couldn’t run for reelection if the referendum succeeded). They even directed City Attorney Charles Jacobs to file with the judiciary a plea for the courts to invalidate the duly certified petition of registered voters triggering the Council to call an election on the matter. On multiple occasions all five of them violated the charter by voting against resolutions to do that.

The rearguard action to date only has caused them more trouble. In trying to cut off the head of the term limits movement, spearheaded by an informal group called the Bossier Term Limits Coalition that the city sued (apparently against the wishes of GOP Mayor Tommy Chandler and Republican Councilors Chris Smith and Brian Hammons), the bloc instead saw more heads of it mushroom into existence. The original petition just had a handful of individuals involved, yet now the Coalition reports several times that number active seeking signatures approving of the same language and maintains at least two locations gathering signatures. It’s possible that the group will gather an amount of signatures surpassing the charter-mandated one-third of the number of votes in the previous mayoral election before the court even rules on the validity of the existing petition challenged on the basis of technicalities, where the new petition avoids those ambiguities.

Worse for the bloc and its city allies within the Bossier political establishment, if you’re going to go out and gather signatures for one item, you might as well tack some more items onto the effort. Besides a rerun of term limits, organizers also are having registered voters sign a request to drop the one-third signature requirement to one-fifth, and then another that requires Council meeting to start no earlier than 5 PM and to require public comment allowing for as many as four speakers for and four against prior to each agenda item’s consideration, for up to three minutes each.

The public comment amendment came directly from efforts by the majority bloc that met in private after the Sep. 5 meeting to change existing regulations in that area. Caught on recorded audio, that caused Republican Atty. Gen. Jeff Landry’s office to open an investigation into whether an illegal meeting took place. On it, the voices of Montgomery and Darby detail the content of the proposed resolution and how to put it forth for approval, while Montgomery asserted that it would pass 4-2 as Free planned to miss (and did) the scheduled Sep. 19 meeting.

Forced to respond, Jacobs attempted to avoid further Department of Justice action by providing information and defenses about various allegations, but had to admit that the meeting did take place in Clerk Phyllis McGraw’s office (who egged them on to make the change) with Montgomery, Darby, Maggio, and Williams in attendance. He alleged it was an “impromptu and unplanned” gathering and claimed Montgomery “never formally ‘polled’” on the matter. These assertions he then used to buttress a declaration that the meeting was not illegal under state law, as that exempts “chance meetings or social gatherings.”

Common sense and a prior attorney general’s opinion say otherwise. It was by “chance” the exact four members who indicated they would attend the Sep. 19 meeting that Montgomery indicated were the four votes needed to make the change all ambled over to and just happened to end up at the same time in the clerk’s office right after the meeting? And that they just happened to take up discussion of the change at that time, only minutes after a contentious exchange between principally Free and Montgomery with citizen commenter Wes Merriott, where Free verbally abused Merriott and Montgomery became so incensed that he asked city marshals to remove Merriott?

Balderdash, and AG Op. 14-0065 makes Jacobs’ assertions look even less convincing. It states that for illegal polling to occur it needn’t happen in a formal or informal sense, but rather can occur merely as a conclusion that a vote would go a certain way. When Montgomery stated the vote would be 4-2 without Free present and the other three present didn’t contest that, it served as a vote count that the opinion states is something “not appropriate for members of a public body to engage in … which permits a public body to know how a majority of the public body would vote on an issue” without public participation – especially as four members present constituted a quorum.

And it appears the legal system will have a chance to review the merit of Jacobs’ claims. Because Merriott subsequently sued in federal court over this and other matters involving public commentary at Council meetings. In it, Merriott alleged the existing public comment policy is overbroad to the point it squelches free expression, is vague, induces unconstitutional content-based restrictions, its restrictions are applied in a biased and therefore unconstitutional manner, is retaliatory, violates both Louisiana law and its Constitution, and that additional Jacobs moves to prevent councilors and city employees generally from speaking about the recording was unconstitutional.

Much of this will be an uphill battle. As experts in First Amendment jurisprudence have noted, a policy like Bossier City’s – the wordings behind it and procedures attached to it being not uncommon in Louisiana (Shreveport’s is quite similar, if not more restrictive) – in theory strikes a balance between the public’s right to know and to express itself and in ensuring the public’s business is attended to without undue interference, but is one where elected officials easily can cross the line into unconstitutionality in its application.

So, Merriott – who wisely chose a federal venue whose judges aren’t elected and are isolated from the existing power structure of which Jacobs is a part in the state’s 26^th Judicial District, where he once was an elected judge – will have a hard time getting a court to declare on face that the existing policy is unconstitutional. And on the basis of conduct as well since regarding the Sep. 5 incident despite Free’s verbal abuse Merriott was able to complete his comments unedited and that Montgomery’s demand to shut up Merriott went unheeded, which indicates this particular application didn’t veer into unconstitutional behavior.

But he does have one claim in this regard that might win: a vague and uneven application that can have the effect of viewpoint discrimination. Merriott’s legal team, if they review the three years’ worth of video recordings since the policy went into place will find multiple instances of the rules being significantly fudged, and may find correlation between the issue preference being expressed and how strictly to which the rules are adhered.

Especially worth noting is the basis by which Montgomery blew a gasket: supposed “slander” by Merriott about the role of an outside attorney named Katie Bell in a case where the city was sued successfully by developer Linc Coleman who claimed breach of contract, in large part caused by decisions made by the graybeards, that cost the city at least $35 million. When the majority bloc began its efforts to invalidate the petition, it enlisted Jacobs to call upon Bell to render an opinion about the petition, about whom Jacobs in public said had no connection to the city.

In fact, and as Jacobs eventually contradicted himself and admitted, Bell had worked for city interests in connection with the Coleman case, the final settlement of which never has become public amid claims of judicial secrecy. And the transcripts about the Coleman case that are publicly available suggest that Bell in some capacity, whether he was considered a private individual or public official, represented the interests of Montgomery in that case.

Merriott insinuated that relationship on Sep. 5, which set off Montgomery who wanted to silence Merriott on the basis of his remarks violating the regulation against “slanderous” statements and which led Jacobs later to repeat the assertion that she had no connection with Montgomery. Yet given that Jacobs has turned out to be unmasked publicly as a liar about Bell’s past role at least once in his position and given the transcript text, it was not unreasonable for Merriott to make that statement without some degree of confidence that it was true. And legally for slander to take place against a public figure, it has to occur with malicious and reckless disregard for the truth.

So, even as Merriott eventually faced no restrictions on his speech, in his suit he can have a chance to prove he faced unconstitutional behavior because, under the regulations, he could have been punished for slander when it wasn’t, which can prove uneven application. And how does he prove he didn’t commit slander? By using discovery to reveal through documents heretofore unreleased about the Coleman case what exactly was Bell’s role in that.

This means the Merriott suit could open up a whole new can of worms that the graybeards would rather not have made public. Add to that the court gets a chance to vet the circumstances behind the apparently illegal private meeting (discovery capturing electronic messaging, for example, might also prove fruitful), which is the strongest part of the suit, letting it bat away Jacobs’ ludicrous assertions of fact and law and declare a violation of Louisiana state law – even if it won’t go so far as to find that or anything else a constitutional violation, either federal or state.

None of this does the individual reputations of the members of the majority bloc any good, which imperils their chances for reelection. If it comes to that, for if the original petition doesn’t survive to disqualify them, bloc members’ antics revealed in open court only enrage the citizenry more and makes registered voters ever more amenable to signing petitions, one of which will accomplish that.