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Ballay v. Cormier

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

CHARLES J. BALLAY, ET AL
v.
AMOS J. CORMIER, III, ET AL CHARLES J. BALLAY IN HIS OFFICIAL CAPACITY AS THE DISTRICT ATTORNEY OF THE TWENTY-FIFTH JUDICAL DISTRICT
v.
AMOS J. CORMIER, III AND THE PLAQUEMINES PARISH GOVERNMENT CDW SERVICES, LLC
v.
THE PLAQUEMINES PARISH GOVERNMENT AND MR. AMOS J. CORMIER, III IN HIS OFFICIAL CAPACITY AS PARISH PRESIDENT OF PLAQUEMINES PARISH

         APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 63-488 C\W 63-489, 63-493, DIVISION "A" HONORABLE JEROME BARBERA, JUDGE, AD HOC

          Dane S. Ciolino DANE S. CIOLINO, L.L.C. David C. Jarrell Charles J. Ballay, District Attorney OFFICE OF THE DISTRICT ATTORNEY FOR THE PARISH OF PLAQUEMINES Frank A. Milanese FRANK A. MILANESE, PLC COUNSEL FOR PLAINTIFF/APPELLEES

          Peter Barbee William S. Culver, Jr. ATTORNEY AT LAW AND Robert A. Barnett COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore, Judge Tiffany G. Chase

          Judge Marion F. Edwards, Pro Tempore.

         The three consolidated cases in this appeal involve a dispute between Charles J. Ballay, the District Attorney of the Twenty-Fifth Judicial District, and Amos J. Cormier, III, the Parish President of Plaquemines Parish[1], regarding a contract with CDW Services, LLC to renovate a building intended for the future use of the District Attorney's Office. The construction project was needed because the Plaquemines Parish Courthouse in Point a la Hache, which housed the District Attorney's Office, was damaged beyond repair in a fire caused by an arsonist on January 12, 2002.

         Through land acquisitions, block grants and local and federal funding during the administrations of former Plaquemines Parish Presidents Billy Nungesser, Amos J. Cormier, Jr., and interim president, Ed Theriot, the Parish acquired and began developing several acres of land and buildings formerly owned by the State of Louisiana for the purpose of establishing a parish government complex. One of these buildings, Building 201, was designated for use as the District Attorney's Office.

         In the fall of 2016, the Parish advertised to receive bids on the renovation of Building 201 in accordance with the process set forth in the Louisiana Public Bid Law embodied in La. R.S. 38 § 2212, et seq. In December of 2016, Interim Parish President Ed Theriot, accepted a bid from CDW Services, LLC (CDW) as the lowest bid, and awarded the contract to CDW. CDW responded timely and completed the necessary paperwork for confection of the contract. However, between the time the project was let out for bids, and the completion of the required documentation process, Amos J. Cormier, III was sworn in as Parish President. On January 30, 2017, Mr. Cormier rejected all bids on the project and refused to certify the availability of funds for the project.

         When Mr. Cormier refused to execute the contract with CDW, Mr. Ballay filed a Petition for a Writ of Mandamus seeking to compel the Parish to execute the contract with CDW, and a Petition for a Temporary Restraining Order seeking to prohibit the Parish from alienating or encumbering the funds previously appropriated for the renovations of Building 201.[2] Additionally, CDW filed a Petition for a Writ of Mandamus to compel the Parish to execute the contract for the renovations. Mr. Cormier filed several exceptions to the mandamus petitions, including no cause of action, in which he asserted that the actions taken were discretionary, precluding the issuance of a writ of mandamus. In his answer, Mr. Cormier also asserted several affirmative defenses. All three actions were consolidated in the trial court for consideration.

         The trial court considered and denied the exceptions, and ultimately rendered an opinion in which it granted the mandamus and denied the preliminary injunction. All parties have appealed.

         FACTS

         The pertinent facts are undisputed. A call for bids on the project to renovate Building 201 was properly advertised pursuant to the Public Bid Law during the Theriot administration, and CDW submitted the lowest responsive bid. Parish officials made certain CDW had a valid contractor's license and had no issues that would invalidate the bid. Consequently, CDW's bid was accepted by the Parish, and CDW was awarded the contract. CDW completed the necessary paperwork and secured the required insurance and performance bonds. Parish officials reviewed all documents submitted by CDW, and certified the bid as complete. The final contract was submitted to Mr. Cormier, the newly sworn in Parish President, for signature.

         Funding for the project came from three sources. $274, 000 came from the District Attorney's office, $1.6 million came from a Community Development Block Grant (CDBG), and $616, 000 was provided by the Hazard Mitigation Grant Program (HMGP). Additionally, the parish allocated $60, 000 to re-design portions of the building. However, those funds were for design only, not construction.

         At the time the bids came in, the Parish was still $712, 000 short of the necessary funds. Pursuant to the Public Bid Law, the Parish is required to award the contract to the lowest bidder within 45 days or get an agreement from the contractor to extend their bid prices past that day.[3] An extension was obtained, and the Parish was able to secure an additional $800, 000 from Sandy Recovery, Federal Emergency Management Agency (FEMA) money set for use on Building 203, which was under construction. That freed up CDBG money to be moved to the Building 201 project. The CDBG grant was for both buildings, so the funds could be moved back and forth without council approval. Mr. Theriot verbally agreed to the transfer of funds at the council meeting.

         Amos J. Cormier III, the current president of Plaquemines Parish, took office in January of 2017. He reviewed the parish finances and the contract with CDW and decided not to sign the CDW contract. Notification of that decision was sent by email to all concerned parties.

         Mr. Cormier cited the timing of the contract, which occurred nine days after he was elected president, parish finances, availability of funding for the project, and his determination that the grant funds would be put to better use on other projects in the Parish such as a library for Port Sulphur, as reasons for his decision not to execute the contract. Mr. Cormier also expressed concerns over the legality of the donation by the District Attorney's Office toward the funding for the project, and the lack of an ordinance relating to the project which would authorize the obligation.

         Mr. Cormier acknowledged that federal grant money was identified in the bid documents for funding of the project, but stated that the Parish had not yet received the funds and he did not know whether the funds were actually available. He admitted that his conversations with FEMA were general and he did nothing specific to determine whether the funds were available for the renovation of Building 201. Mr. Cormier also stated that he believed the District Attorney is required by law to be located in the parish seat, although he could not cite the legal support for that belief.

         William Poche is a project manager for Hunt, Guillot & Associates (HGA). He testified that HGA has a contract with Plaquemines Parish to manage grants. He explained that after Hurricane Katrina, Congress approved certain funds. Part of those funds included $616, 000 which was allocated to Building 201 to retrofit, or hurricane-proof the structure, and that money is still available. The overall grant is for $8 million and works by reimbursement. When the project goes into construction, the grant managers review the invoices for eligibility then pass them on for approval to the State, and eventually on to FEMA.

         Mr. Poche stated that the Parish does not pay the invoice before it is submitted to the State and Federal Homeland Security Departments. Rather, the invoices are sent to state and federal agencies and, when approved, the funds are sent to the Parish for payment of the invoices. Mr. Poche testified that it usually takes about 30 to 45 days before the process is completed and the checks are received by the Parish. He stated that he has been doing this job since 2012 and has never seen a problem with payment.

         There was similar expert testimony to show that funding from CDBG is managed in a similar fashion. Specifically, there is $4 million in CDBG funds allocated for the Consolidated Government Complex in which Building 201 is located. About $1.6 million of that total was allocated to Building 201. When construction begins and an invoice ...


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