So much for the Times-Picayune’s effort to revirginate Jefferson Parish Council President John Young. Good Government’s Margie Seemann took the gloss off the T-P’ attempt to paint the Parish Council out of the picture of corruption framing the River Birch contract with her response to Parish Attorney Peggy Barton’s that-law-is-just-a-suggestion-letter.
After reviewing the provisions of Jefferson Parish Code of Ordinances Section 2-895, the evaluation committee for RFP 176 should have included a representative from the Purchasing Department. However, the fact that there was no such representative on the committee would not in and of itself be grounds to make the subsequent contract, which resulted from the RFP process, illegal or invalid.
I call bullshit. Ms. Seemann, on the other hand, simply called Barton out point-by-point in her September 15th reply to Barton:
In your response to me, you said, “It should be noted that the evaluation committee does not award any contracts; it merely advises the Jefferson Parish Council, which is then free to award as it deems best for Jefferson Parish, regardless of what the committee recommends.”
Since the evaluation committee did not have the members required by the Code of Ordinances, the Jefferson Parish Council did not receive the advice which is legally required in order for them to make a decision on the award of the River Birch landfill contract. The Code of Ordinances specifically requires the following members: representative(s) from the requesting department(s), research and budget, purchasing department and legal. Because the purchasing department was not represented and the director of the requesting department, the Department of Environmental Affairs, was not even a voting member of the committee, all of the required members were not on the committee. The Jefferson Parish Code of Ordinances was therefore violated, and the advice of the evaluation committee was therefore null and void. After all, Sec. 1-10 of the Code states: “It shall be unlawful for any person to violate or fail to comply with any provision of this Code.” We strongly disagree with your contention that the Parish Council is free to award a contract without the legally required advice.
You said, “An advisory committee is just that; it provides advice to another body which is then free to follow or ignore those recommendations.”
However, since the advisory committee did not have the required members, the advice given to the Jefferson Parish Council was inadequate and not valid, and the award of the contract was therefore illegal.
You said, “It should also be noted that, unless there is a specific prohibition, governmental bodies may waive informalities in the process of awarding contracts and it does not render the subsequent contract invalid.”
Are you saying that the illegally-constituted evaluation committee was merely an “informality,” which may be waived in the process of awarding contracts, even though it violates our government’s own laws as specified in the Code of Ordinances? Since when does our government or the Jefferson Parish Council have a right to violate the Code of Ordinances? The citizens of Jefferson are not permitted to violate our laws as specified in our Code of Ordinances and neither is our government.
You said, “Similarly, the Public Bid Law does not apply to the RFP in question…”
We have never contended that the Public Bid Law applied to the River Birch landfill contract. It clearly does not apply. To the contrary, we have contended that Sec. 2-895, Request for Proposal (RFP) Process, applies to RFP 176, and that its provision in paragraph (5) entitled “Evaluation” was violated.
You said, “As can be seen from the attached letter from the RFP evaluation committee, the composition of the committee was disclosed to the Council before they voted on the matter. Any inconsistency in the make up of the committee would have been cured by the Council action both because they are the only authority empowered to act on awarding a contract, and also because the Parish did reserve in the RFP the right to waive informalities.”
Are you saying that the Council has the authority to act on the advice of an illegally-constituted committee and therefore has the authority to condone the unlawful action of our government when they violate the Code of Ordinances? If so, then the Code of Ordinances is a meaningless document which our government can violate at will. We strongly disagree with your contention that the Council can “cure” an illegal action by merely accepting it.
You said, “The Environmental Department was actively involved with the committee, although not in a voting capacity.”
Why was the director of the Environmental Department, Marnie Winter, not a voting member of the evaluation committee? After all, she was required to be a member of this committee by the Code of Ordinances, since she is the director of the requesting department. This purposeful exclusion of her as a voting member of the committee is very troubling and is another important reason to invalidate the advice of the evaluation committee. We believe that the intentional exclusion of Ms. Winter as a voting member of the evaluation committee is a serious offense which demands further investigation.
You said, “Because the same committee composition reviewed both offers, all offerors received the same treatment in this RFP, even though Purchasing was not on the committee, and the Environmental Department did not have a voting capacity. Thus, under the Code provision cited above, the departure from normal practice was permitted.”
Whether or not all offerors received the same treatment in this RFP is irrelevant. The expertise required on this committee by the Code of Ordinances did not exist.
You said, “Additionally, it should be noted that, even assuming that Purchasing and the Environmental Department should have been voting members of the committee, the members who actually scored the proposals did constitute a quorum, and thus the scoring they gave was acceptable. The Code sections establishing the RFP process are silent as to a quorum. However, when there is nothing specific in the rules established for a governmental body, reference is made to Roberts Rules of Order…”
As you point out, there was no reference to a quorum in the RFP process. However, whether or not there would have been a quorum if the required members had been included in the committee is irrelevant, since the required expertise of the missing members did not exist on the committee, and the committee was therefore an illegally-constituted body.
You said, “For the reasons cited above, it is the opinion of this office that, even though the composition of the RFP evaluation committee may have been flawed, that reason standing alone is not sufficient grounds to nullify the subsequently awarded contract.”
The composition of the RFP evaluation committee was not just “flawed,” but it was unlawful, since it violated the Code of Ordinances. Furthermore, according to Sec. 1-10 of the Code of Ordinances, where no specific penalty is provided, as in this case, “the violation of any provision of this Code shall be punished by a fine not exceeding five hundred dollars ($500.00) or imprisonment for a term not exceeding six (6) months or by both such fine and imprisonment, within the discretion of the court.” Hence, violating the Code of Ordinances is NOT a trivial offense which can be “cured” by the Council overlooking the illegal act.
We therefore disagree with your opinion that the River Birch landfill contract is legal. After all, as we have previously stated many times–the composition of the RFP evaluation committee violated the Parish Code of Ordinances. Since this committee was therefore an illegally constituted body, the committee evaluation that favored River Birch is necessarily null and void. We do not believe that the Jefferson Parish Council has the authority to overlook the fact that the committee evaluation was illegal, since they too are required to abide by ALL provisions of the Code of Ordinances, and any violation is punishable by significant penalties. We therefore can come to no other conclusion than the River Birch landfill contract is illegal and should be cancelled.(emphasis added)
In the event that anyone believes that it was merely an oversight or an accidental omission by our Parish government NOT to include the Director of the Environmental Affairs Department and a representative from the Purchasing Department on the Evaluation Committee, as required by the Code of Ordinances, we refer everyone to a recently-obtained copy of a legal document filed by Waste Management, which currently operates our Parish-owned Landfill. This document, “Waste Management’s First Amended and Supplemental Counterclaim” references sworn testimony from Margaret Winter, Director of the Jefferson Parish Environmental Affairs Department, Joseph “Rick” Buller, Jefferson Parish Landfill Engineer, Gwen Bolotte, Director of the Jefferson Parish Finance Department, and Deano Bonano, a former Chief Administrative Assistant and former emergency management director of Jefferson Parish.
We consider the sworn depositions of these individuals to be devastating with respect to ex-Parish President Aaron Broussard, ex-CAO Tim Whitmer, and ex-Parish Attorney Tom Wilkinson, as well as to the validity of the River Birch Landfill contract. Anyone who is interested can read this entire document, which was made available on the Slabbed website at http://www.slabbed.org/wp-content/uploads/2011/01/parish-v-waste-management-doc-104.pdf.
The information provided in Waste Management’s document corrobates our contention that the Director of the Environmental Affairs Department, which prepared the draft Request for Proposal for the disposal of “woody waste,” and a representative of the Purchasing Department were deliberately excluded from the Evaluation Committee. This was among the reasons given by Waste Management in their counterclaim document for “declaring the River Birch contract itself invalid.”
Ignorance of the law is no excuse – not for the Parish Council, including John Young, and definitely not for the Parish Attorney.
Ms. Barton should resign!