Created By: Tobie Ronkartz on 08/05/1998 at 11:26 AM
| CN 1996-199 Kerry DeCay|
Category: Ethics Rulings
LOUISIANA BOARD OF ETHICS
DATE: July 27, 1998 OPINION NO.: CN 96-199
RE: In the matter of Kerry DeCay
The Louisiana Board of Ethics (the “Board”), pursuant to the provisions of Section 1141 of the Code of Governmental Ethics (the “Code”), conducted an investigation into information received indicating that Mr. Kerry DeCay, Director of Property Management of the City of New Orleans, had committed many alleged violations of the Code. The Board conducted a private investigation of the allegations, almost all of which were not substantiated. However, the Board decided that two allegations warranted exploration at a public hearing and filed the following:
That Kerry DeCay, as Director of the New Orleans Department of Property Management, may have violated Section 1112B(1) of the Louisiana Code of Governmental Ethics (La. R.S. 42:1112B (1)) by participating in the authorization of purchases from Motorola when his brother, Keith DeCay, received a commission on those purchases.
That Kerry DeCay may have violated Section 1112A and/or 1116 of the Louisiana Code of Governmental Ethics (La. R.S. 42:1112A and/or 1116) by instructing or ordering an employee of his department to perform services at his private residence during working hours and utilizing public resources.
Based upon the investigation and with the cooperation of Mr. Kerry DeCay, the Board now makes the following essential:
I. Mr. Kerry DeCay is the Director of the Department of Property Management of the City of New Orleans and has held that office since May 2, 1994.
FINDINGS OF FACT
2. With respect to the first charge, between 1995 and 1996, while serving as the Director of the Department of Property Management of the City of New Orleans, Kerry DeCay submitted for approval two contracts with Motorola, Inc., which represented four leases of Motorola portable radios for $54,772. Kerry DeCay’s brother, Keith DeCay, served as the sales representative for Motorola, Inc. with respect to the contracts to lease the portable radios and received commissions based on such sales.
3. A representative of Motorola has confirmed, and the testimony of City employees would be that Motorola has had an ongoing relationship with the City of New Orleans extending back long before Mr. DeCay became the Director of Property Management of that City and before his brother was employed by Motorola.
4. If called as a witness at a public hearing, Mr. Keith DeCay, Mr. Kerry DeCay’s brother, would testify that, in his opinion, the lease of radios by Motorola to the City of New Orleans that occurred while Kerry DeCay was Director of the Department of Property Management resulted in neither an increase nor decrease of income and earnings, because he would in any case have earned his maximum commissions, bonuses and/or incentives during the pertinent periods on the basis of other business unrelated to the department of Property Management of the City of New Orleans. Mr. Keith DeCay would also testify that he is no longer associated with Motorola and that neither he nor his brother, Kerry DeCay, were aware that their actions or inaction might conflict with the Code: nor did either intend to create a conflict with the Code.
5. There is no evidence that the City’s lease contract with Motorola was not advantageous to the City nor that the City would have contracted with another company if Kerry DeCay had not been director of his department. In fact, the lease contract with Motorola for use of radios caused the City to realize a substantial savings because the radios replaced expensive cellular telephones which were in use at the time. Under applicable City law, contracts like the contract in question must be reviewed and approved as to form and legality by the City Attorney and as to other matters by many other City officials who are in other City agencies and are not under Kerry DeCay’s supervision or control. Testimony from City officials at a hearing would address the contracts of other City agencies and other public agencies in New Orleans such as:
Harbor Police Bridge Police
Port of New Orleans Fire Department
NOPD Public Works Department
Channel 6 Channel 4
These agencies have done and still do business with Motorola before and after Mr. DeCay’s appointment and before and after his brother was employed by Motorola.
6. With respect to the second charge, testimony offered at the public hearing on behalf of the respondent would show that this matter was investigated by the Office of Municipal Investigation (“OMI”) of the City of New Orleans, that OMI had determined and that the Chief Administrative Officer of that City had accepted OMI’s determination that Mr. Larry Allen, an employee of the Department of Property Management, had done some welding work at Mr. DeCay’s home, but that Mr. DeCay believed Mr. Allen was to do the work on “annual leave” or vacation time, that Mr. DeCay was reprimanded by the Chief Administrative Officer, that the reprimand was publicized in the New Orleans news media and that, before any charges were brought against him by the Ethics Board, Mr. DeCay reimbursed the City of New Orleans for the amount which, according to the Chief Administrative Officer of that City, represented the amount the City had paid to Mr. Larry Allen for the time spent working for Mr. DeCay.
7. Mr. Larry Allen, if called to testify, would give testimony elicited by the trial attorney for the Board, which would show that Mr. Allen did not believe that all the work he did for Mr. DeCay was to be done on his own vacation/“annual leave” time, but rather believed Mr. DeCay wanted part of the work to be done on City time. In fact, Mr. Allen would testify that while he was actually performing the work at Mr. DeCay’s private residence, he indicated to Mr. DeCay that he would prefer to perform the services after working hours and Mr. DeCay gestured to Mr. Allen in such a way to indicate that Mr. Allen was to complete the services. Mr. Allen would further testify that he performed the services at Mr. DeCay’s private residence without charging Mr. DeCay because Mr. DeCay was his director and Mr. Allen was following orders.
8. There is no evidence that definitively shows that Kerry DeCay knew his acts or inaction were in conflict with the State Code of Ethics or any other law.
II. LSA-R.S. 42:1112A, 42:1112B(1) and 42:1116 provide as follows:
§1112. Participation in certain transactions involving the governmental entity A. No public servant, except as provided in R.S. 42:1120, 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.
(1) Any member of his immediate family.
B. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:
§1116. Abuse of office.
A. No public servant shall use the authority of his office or position, directly or indirectly, in a manner intended to compel or coerce any person or other public servant to provide himself, any other public servant, or other person with any thing of economic value. This Subsection shall not be construed to limit that authority authorized by law, statute, ordinance, or legislative rule in carrying out official duties.
*** It is the opinion of the Board, based on the facts described above, that Kerry DeCay violated Section 1112B(1) of the Code of Governmental Ethics by participating in the lease of Motorola portable radios by the City of New Orleans Department of Property Management at a time when his brother had a substantial economic interest in such lease transactions.
Further, the Board is of the opinion that Kerry DeCay violated Sections 1112A and 1116 of the Code of Governmental Ethics by engaging a classified employee of his Department, Larry Allen, to do work on his private home. After reviewing the facts and having received an explanation of the provisions of the Code of Governmental Ethics, Mr. Kerry DeCay acknowledges, that the mere hiring of Mr. Allen constituted a violation of the Code of Ethics, despite the fact that Mr. DeCay would testify that he thought Mr. Allen was doing the private work for which he was hired on his own time, which he would charge to “annual leave” or vacation time, and not on the City’s time for which he was paid by the City and for which the City was reimbursed by Mr. DeCay to the City’s own satisfaction.
Mr. DeCay has agreed and represents that he will forebear from and diligently avoid any and all future violation of the Ethics Code. Additionally, Mr. DeCay agrees that he will schedule and arrange, in cooperation with the Ethics Administrator, for the Board of Ethics staff to give educational presentations to him and the executive, administrative and professional staff of his Department on the requirements and prohibitions of the Code of Governmental Ethics.
The Louisiana Board of Ethics is authorized to impose penalties of up to $10,000 for each of the above violations of the Code. However, in this particular situation, given the facts outlined above, along with the fact that Mr. Kerry DeCay fully cooperated with the investigation and that the City of New Orleans has reprimanded Mr. DeCay with respect to hiring City employees to do private projects on City time and the de minimis interest of Keith DeCay in the Motorola transactions, it is the conclusion of the Board that the interest of the public would be served with the imposition of a lower penalty. More specifically, it is the opinion of the Board that, given the actions previously taken by the City of New Orleans, the imposition of a $1500 civil penalty would address all applicable concerns.
IV. IT IS DECREED that Kerry DeCay violated Section 1112B(1) of the Code of Governmental Ethics by participating in the lease of Motorola portable radios by the City of New Orleans Department of Property Management when his brother had a substantial economic interest in such lease transactions.
DECREE AND ORDER
IT IS FURTHER DECREED that Kerry DeCay violated Sections 1112A and 1116 of the Code of Governmental Ethics by hiring an employee of his department to perform services at his private residence when most of said services were provided on City time.
IT IS ORDERED that a civil penalty of $1,500 is hereby imposed upon Kerry DeCay for the foregoing violations.
BY ORDER OF THE BOARD, this 27th day of July , 1998.
s/Robert L. Roland s/Harry Blumenthal
Robert L. Roland, Chairman Harry Blumenthal, Jr., Vice-Chairman
s/Robert P. Bareikis s/Carole Cotton Winn
Dr. Robert P. Bareikis Rev. Carole Cotton Winn
s/E.L. Guidry, Jr. s/Virgil Orr
Judge E.L. Guidry, Jr. Dr. Virgil Orr
Absent and did not participate s/T.O. Perry, Jr.
Justice Revius O. Ortique, Jr. T.O. Perry, Jr.
s/Ronald L. Sawyer Absent and did not participate
Ronald L. Sawyer Nathan J. Thornton, Jr.
s/Edwin O. Ware
Edwin O. Ware
The undersigned (a) stipulates to the facts found by the Board; (b) waives the procedural requirements contained in Section 1141 of the Code; (c) admits that his conduct with respect to the Motorola transactions, as described above, violated Section 1112(B)(1) of the Code; (d) admits that his conduct with respect to the transactions involving an employee of the City of New Orleans Department of Property Management violates Sections 1112A and 1116 of the Code; (e) consents to the publication of this opinion; (f) agrees to comply with the conditions and orders set forth in this opinion; and, (g) agrees not to seek judicial review of the findings and actions taken in this opinion.