SADOW: Levee Boards Need The Changes The Leges Propose

That the opposition to flood protection authority reform now hasfocused on legislation not even started in the process of becoming lawshows its fear that what has looked like a political defeat will intensify into a rout, but quite a necessary one.

Spurred by a politicized decision by one of the two regional authorities to pursue (if somewhat hypocriticallyjackpot justice against alleged oil company practices that at best rests on dubious claims, a number of bills were filed in the session of the Louisiana Legislature to bring more accountability to entities that otherwise have few constraints to act politically rather than in the best interests of the people. What particularly galled those against these suits was contingency fees that appear to have been negotiated against state law that could reward trial lawyers with fees in the billions of dollars.

Most of these filed by state Sen. Robert Adley, who until his retirement in 2012 ran a gas management company, they represent various and disparate approaches to injecting accountability into these boards, some focusing on appointments to them, removals from them, powers exercisable, and organizational questions. Other bills would negate in essence the questionable suit or would force it to be more specific and redirect any proceeds.

With those bills addressing the ability to sue with contingency contracts and the suit moving and seemingly headed to passage into law, and suit supporters coming to terms with this, bills dealing with membership and organization wait in the background. In part, this is because there is some overlapping to them. For example, Adley’s moving SB 547 would make far more exacting the ability of any local government to file a contingency-based suit above $50,000, and his progressing SB 553 would add authorities to other entities that have layers of state review over hiring lawyers and contracting legally and add legislative clearance to contingency contracts, while his heretofore unconsidered SB 629 would fold regional flood protection authorities into the executive branch’s Coastal Protection and Restoration Authority, headed by a board of whom a majority of members are gubernatorial appointees or traditional allies.

The overlap comes in as, if all make it into law, that concerning SB 629 this means that any contingency contract attempted by an authority would need clearance at the state level. This came in response to the questionable reaction that Atty. Gen. Buddy Caldwell had in evaluating whether the suit met legal requirements for its filing that mandate state review. Likely because he is an ally of trial lawyers, Caldwell punted on the matter. But in putting the two existing authorities under the CPRA that would resolve the questions of ambiguity that gave Caldwell wiggle room to argue he could not impede the suit.

Increasingly fighting a rearguard action, opponents have come up with arguments against it that border on desperation. A claim of unconstitutionality, because the bill’s movement of authorities under the CPRA is said to transfer them from local government entities to the executive branch, is meritless: the bill simply removes Art. VI Sec. 38authorization from establishing authorities (that making them simultaneously levee boards and regional authorities) and leaves only authorization under Art. VI Sec. 38.1 while placing it under CPRA organizationally. Its governance structure remains the same as does its powers (as the latter section specifically grants the same under Sections 40 and 41). This also moots the specious argument about control of funding – it clearly continues to rest with the authorities.

And SB 629 by itself does not affect the membership of the governing boards, contrary to the worries expressed by some that their decision-making might become less locally-oriented and impair them from acting swiftly in the case of emergencies. Again, the only change from the current structure and powers of these agencies by the bill would give essentially the state an unambiguous ability to veto legal contractual decisions.

However, SB 79, also yet to have a committee hearing, would affect memberships, and on the appointment side in a positive fashion as itbalances well the need for putting expertise on a board and making it accountable. But according to an attorney with one of the authorities, the bill will be amended (its current posture does not indicate this) to expand upon R.S. 38:330.1 provisions that allow for the governor to remove members upon the recommendation of the board that have neglected duties or who have missed three successive regular meetings, to make the governor unilaterally able to remove such members for these reasons and for “violating a state law or violating public policy.”

Certainly the violation of a state law, upon conviction in court, should be enough justification to allow the governor latitude on this matter. Still, the matter of “public policy” goes too far, especially if contracting ability gets reined in, given the vagueness of what that could be. Any of the three contracting bills would be a sufficient check on authority abuses and have the salutary effect of cancelling unwise actions, as opposed to a kind of undefined prior restraint that would exist with the implicit threat of firing by an outside force over policy disagreements.

Yet most interesting in considering these four bills, where SB 547 would be the only one to abrogate the existing suit and apply the strict measures to all local governments, SB 553 would check future authority suits, so would SB 629 but more comprehensively and more under executive authority, and SB 79 would control them through decisions on membership, it’s the last two that those not involved with the suit fear the most. (And also there lies waiting Adley’s SB 469, which would address the current suit and future ones by forcing them to be more specific and that would have money won by them put into a state fund for coastal restoration.) Just as the underwhelming performance of the education establishment in East Baton Rouge Parish and its political allies in opposing reform opened a Pandora’s box that launched an effort to incorporate a new municipality in the parish, so has the lawsuit brought scrutiny to the regional authorities that invites corrective actions beyond just clamping down on nuisance suits.

And that’s probably a good thing. The manifest irresponsibility of politicians regarding past flood control efforts so recognized by the public and policy-makers after the 2005 hurricane disasters likely created too much enthusiasm to insulate flood protection bodies and overcompensated without sufficient regard for unintended consequences of facilitating agencies in going rogue against the public interest. As a desirable and needed corrective, all of these measures, minus the ability to can regional authority members for policy disagreements with the governor, deserve passage into law.

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