Two past presidents of the nonprofit board that controls the New Orleans Jazz & Heritage Festival testified in court Wednesday that they would suffer “irreparable harm” if forced to attend the 2022 festival without the extensive privileges and perks they enjoyed for years.
Judge Nicole Sheppard of Orleans Parish Civil District Court agreed. She granted the preliminary injunction that Michael Bagneris and Demetric Mercadel sought against the New Orleans Jazz & Heritage Festival and Foundation Inc. Sheppard ordered the foundation to restore to Mercadel and Bagneris the thousands of dollars’ worth of benefits that it eliminated after the 2019 Jazz Fest.
That bounty testimony, showed, includes:
- 70 free Jazz Fest tickets, plus the option to buy 100 more at half price
- The option to buy multiple Jazz Fest posters at a discount
- Four laminate badges to access reserved viewing areas on the festival’s three main stages
- Six stick-on passes, or “silkies,” for access to guest areas near the main stages
- A free parking space
- Four wristbands to access a private lounge area.
The real issue, Bagneris and Mercadel argued, was the foundation not honoring an “implied contract” to provide a lifetime of benefits for their volunteer work, and not properly acknowledging the scope of that work.
“For me, it was not simply a question of breach of contract,” Bagneris testified. “It was also a matter of disrespect. We felt disrespected.”
The perks, and the status of those perks afforded – such as watching performances from onstage – are nice, too, he said: “You can’t put a price tag on those kinds of magic moments. That’s the irreparable harm.”
The court hearing was the first public airing of a legal fight that began last month.
Mercadel initially requested that her suit be allowed to proceed in private, in order to comply with what she said was a non-disclosure agreement the Jazz & Heritage Foundation asked her to sign in April 2021. that I wanted tickets,” she said. “I was trying to respectfully do what [the foundation] said.”
Attorneys for both sides agreed to waive confidentiality for Wednesday’s hearingand to allow a reporter to witness it.
The foundation’s legal team, led by Ben Chapman, called no witnesses. But the nonprofit intends to appeal Sheppard’s ruling, which applies only to the 2022 Jazz Fest, to Louisiana’s 4th Circuit Court of Appeals. A full trial to settle the issue could be scheduled this fall.
“We are confused and dismayed by the preliminary ruling today, and while we understand that it is only a first step in a much longer process, we have a fiduciary responsibility to protect our integrity as an independent non-profit body,” David Francis, the foundation’s current president, said Wednesday night. “To mandate that a nonprofit provide excessive benefits to former members is troublesome and contrary to the spirit of our core mission and the dedication of our many wonderful volunteers.”
‘Best room on the festival grounds’
Mercadel and Bagneris each testified for about an hour Wednesday, focusing on what they said the foundation owes them, and why. Their testimony also disclosed details about the inner workings of the festival and the nonprofit board that oversees it.
After the 2019 Jazz Fest, the foundation board amended its bylaws to eliminate perks for past presidents. The foundation also reduced the benefits that current board members receive, amid concerns about tax issues and the foundation’s status as a 501(c)(3) nonprofit.
Both Bagneris and Mercadel spoke of their love for the festival and the foundation, which uses its profits to fund an array of cultural and educational initiatives and grant programs.
“It’s a no-brainer, if you’re blessed enough, to become a member of the foundation,” Bagneris said. He served on the board from 1982 until 2002, when he completed two years as its president.
“I was always told if you’re fortunate enough to become president, then there were lifetime benefits that you would receive, perks that you would receive,” he said. Based on a conversation with an executive director of the foundation decades ago, Bagneris expected those benefits “until death or resignation.”
He said he used his free tickets “to make sure individuals not able to afford the festival had access to the festival.” His daughter, a Tulane University professor, gave some to students. Bagneris, who ran unsuccessfully for mayor in 2017 after serving for 20 years as a Civil District Court judge, said he also gave tickets to “unemployed individuals” who worked on his political campaigns.
He enjoyed board members’ private lounge at the festival. “That’s the best room on the festival grounds, because you don’t have to wait in long lines to get in the restroom,” he testified.
Bagneris recalled meeting the nephew of Supreme Court Justice Thurgood Marshall in that lounge. “You don’t get that on the grounds,” he said.
He recalled escorting contemporary R&B singer Eric Benet around the Fair Grounds, site of the festival. At the time, Benet was married to actress Halle Berry, “so I really enjoyed that,” Bagneris said.
Bagneris gushed about watching, from the board’s reserved viewing area, jazz saxophonist Pharoah Sanders jam with guitarist Carlos Santana.
“To get onstage with the performers, [that] cannot be described,” Bagneris said. “That’s the kind of magic moments that you’re able to capture as a past president.”
Would cash compensation make up for the loss of those privileges, asked Rick Stanley, Mercadel’s attorney?
“Absolutely not,” Bagneris said.
While he could buy a ticket to the festival like anyone else, that’s different than “enjoying the festival as we did as past presidents. Being onstage, being up front – that embellished the admissions. It’s not the admission itself; it’s how we’re able to enjoy that admission.”
Board presidents did “unquestionably more work, and different kinds of work, from board of director members,” Bagneris testified. “I would say incalculable.”
His proudest accomplishments as president were helping improve the festival’s handicap access and recommending that the festival’s producers buy rain insurance.
Bagneris argued that the foundation’s past practices and conduct, and witnesses to them, amounted to an “implied contract” to provide benefits to past presidents.
Chapman said the “total consideration” for current board members is now capped at $9,000 of value. But Bagneris said, “What they do from this point forward does not impact what the agreement was prior.”
Sheppard essentially agreed. She ordered the foundation to provide Bagneris and Mercadel with the full benefits they received in 2019, not the reduced benefit package current board members receive.
‘I didn’t have a personal life’
Mercadel testedified that she started receiving the free benefits in 1999, when she joined the advisory council.
Her accomplishments included raising money for the foundation by selling tables to its fundraising gala. Foundation members historically attended the gala for free, but she instituted a policy where they had to pay half price for tickets.
She has continued to help with the gala, she said, even though she’s no longer a voting board member. “It has made lots of money for that foundation,” she said.
Mercadel was working as a public affairs executive at Entergy when the festival courted Entergy as a sponsor. She gave some of her passes to fellow Entergy execs, she said.
She also cited her negotiations with a group of early Jazz Fest vendors who wanted to sue the festival. She took time off from her job at Entergy to conduct those negotiations.
“I didn’t have a personal life, and it was OK,” she testified. “I loved the foundation.”
She gave away many of her free tickets to “elderly and handicapped” individuals, as well as to several church groups and nonprofits.
“It breaks my heart….There’s no way I can put up that kind of money to accommodate all these people” now.
One year she bought 13 signed Jazz Fest posters, nine unsigned posters and several of the premium c-mark and remark posters, at the discounted price. She testified she gave away some as Christmas gifts and bought others for a co-worker who used them as wedding gifts.
“Was the compensation package you received based on the work and service you provided?” Sheppard asked.
Mercadel answered, “Yes.”
The judge then asked how long she thought she would receive those benefits. “Until I die,” Mercadel replied.
Planning to dance at Jazz Fest
Her lawsuit wasn’t necessarily about free or discounted tickets, Mercadel said. In fact, she bought 135 Jazz Fest tickets for the full advance price of $80 on March 24: “I don’t need tickets. I just bought them.”
Mercadel said she offered last week to make a deal with the foundation: She’d drop the demand for tickets if the foundation restored other benefits and “put the past presidents back in the bylaws where we belong.
“If you want to take the tickets off, fine,” she said. “But respect the role we played and what we did, the hours I put in.”
After a brief deliberation, the judge ruled for Mercadel and Bagneris.
“Obviously the judge understood,” Bagneris said afterward. “There’s an experience when you go to the Jazz Fest as a past president that cannot be quantified. I’m glad that she was able to appreciate that.”
Will it be uncomfortable for them to sit in the board’s reserved viewing area during the upcoming Jazz Fest?
“Hell, no,” Mercadel said. “Guess what? I’ll smile at all of them like they’re my best friends. I don’t have a problem with it. I’ll be dancing to good music.
“One thing about the foundation and membership and the past presidents: We treat every member as if they’re our family. We love them that way.”