As Atty. Gen. Buddy Caldwell’s cachet with conservatives erodes as a result of his hands-off approach to dealing with a questionable lawsuit, recent statements made by Louisiana’s Legislative Auditor now increase his political vulnerability further.
Earlier this year, the South Louisiana Flood Protection Authority – East filed suit against 97 companies claiming their actions had violated the law in their oil exploration and extraction activities, claiming damages. From the start, the politicized jackpot justice tactic behind it seemed obvious, but it also appeared dubious on legal grounds, as it seemed to have skipped certain steps to give it the authority to take both this action and the manner in which it pursued this.
Many of these uncertainties tied into a contingency contract negotiated with a private law firm that also provided payment if the SLFPA-E voluntarily dropped the suit. Caldwell’s office gave it assent as mandated in law, but is not counsel, and also needed and not given was approval from the governor’s office. Further, the law appears to dictate that the AG must be counsel and any other counsel must be authorized by an explicit set of justification, which do not seem to appear in the resolution to hire the firm. Finally, a past court interpretation of the law states that only legislative approval would allow for a contingency contract, which was never given (and legislators hinted when they convene next year that they will do the opposite to invalidate the entire effort.)
The panel laid the questions at the feet of the auditor, who provided this interpretation but without legal force and recommended the board seek a declaratory judgment from the judiciary. This can be sought by anyone, but the Authority this week will debate whether to do it themselves.
Chances are that it will not, because even though membership expirations allowed Gov. Bobby Jindal recently to appoint new members that have shown opposition to the entire suit, a majority still present on the board appears to favor it. Indications from Auditor Daryl Pupera’s opinion are that it rests on legally shaky ground, and a court judgment is likely to knock the props out from supporting it.
Which if the group fails to ask then could throw the ball into Caldwell’s court and make him very politically uncomfortable. In the past he has shown sympathy to much greater freedom in the state using contingency contracts and continues to claim everything regarding the legality of the suit is going swimmingly. If the SLPFA-E defers, if Caldwell does not take up the suggested action it will seem more likely he is putting a political agenda ahead of doing his job.
Because undoubtedly somebody will ask for this, and if as seems likely the courts rule parts of the contract and/or the attempt itself invalid, then Caldwell would look not only political in motivation but less than competent in doing his job. It’s bad enough for him that Caldwell, who switched from Democrat to Republican prior to his reelection in 2011, never has seemed trustworthy to conservatives, but also there are a lot of lawyers regardless of political affiliation getting term-limited out of office in 2015 who would like nothing better to do than continue their political careers as a statewide elected official. By deliberately putting himself in a position to look bad, Caldwell almost begs putative opponents to run against him partially on the basis of poor performance in office.
Not only would it adhere better to existing jurisprudence for Caldwell to seek this determination and withdraw any permission for it to proceed should a court decide anything is amiss with aspects of the suit, it’s also politically prudent for him to discourage challengers. Or, he can continue to fall on his sword repeatedly to show fealty to the idea of state use of contingency contracting and on behalf of a rogue agency the action of which, either by judicial ruling or legislative action, will fail. Unless he feels absolutely wedded to this agenda, the latter course doesn’t seem to bring much payoff.