Last month, Jay Lapeyre, the leader of the nominating committee for the local flood authority, received a letter from Garret Graves, head of Gov. Bobby Jindal’s coastal office. It said two previous nominees from the committee were ineligible, and it asked that Lapeyre reconvene the panel and send more names up.
One of those rejected is the authority’s president and supporter of its controversial lawsuit against oil and gas companies the governor opposes.
The letter concluded:
“It is important to note that we have no intention of circumventing the nominations committee’s role in this appointment.”
Lapeyre isn’t so sure.
Asked whether the governor is now directing the process, he answered quickly: “Yes, definitely.”
It was never supposed to be this way, say people instrumental in post-Katrina reforms that turned the old Orleans Parish levee board into a component of the multi-parish Southeast Louisiana Flood Protection Authority-East and created a nominating committee meant to insulate the authority from politics. The reforms were led by business and civic leaders intent on redressing factors that led to the collapse of poorly built levees during the storm.
Several studies laid part of the blame for the disaster on the region’s balkanized levee board system, staffed with political appointees rather than engineers. Voters overwhelmingly approved the reforms.
Lapeyre, a New Orleans entrepreneur who helped lead the reforms, said the old levee boards were widely viewed as corrupt. Even honest members appeared distracted from flood prevention by the need to manage assets — a marina and an airport, for example — that had nothing to do with flood control.
“The political influence and money coming through — that was a huge distraction to focus on flood protection,” Lapeyre said. “The idea was to create a process where we selected people with confidence and integrity focused on flood protection.”
The overarching idea, demanded by groups such as Citizens for One Greater New Orleans, was to remove the political appointees by creating regional flood-protection authorities whose boards would oversee the staffs of the parish levee districts. The move required a constitutional amendment that passed with more than 80 percent of the vote statewide.
Just as critical, however, would be the enabling legislation — the set of laws passed by the Legislature to make the system work. The reformers were successful here too, laying out professional qualifications for the flood authority seats. And as a final defense against politicians, applicants for seats on the flood control boards were to be nominated by a committee composed of non-politicians – engineering professionals, academics, and members of government watchdogs groups.
All of these participants are volunteers, serving without pay.
Politicians only become involved in the final stage of the nomination process, and even then they face constraints. The nominating committee is required to send nominees for open seats to the governor, who sends those he accepts to the Senate for final approval.
For seven years the reformed system drew no attention, Lapeyre said. Only one nominee was ever turned down, after it was discovered that his bona fides didn’t match qualifications for the open seat.
“There was certainly never any controversy,” Lapeyre said. “We never expected there would be.”
That all changed in July when the Southeast Louisiana Flood Protection Authority-East made national headlines by voting unanimously to sue arguably the state’s most powerful political players — the oil and gas industry. The suit seeks damages from 97 oil, gas and pipeline companies on grounds that wetlands loss caused by their activities has increased the cost of maintaining storm defenses.
Jindal and Garret Graves, his director of coastal activities, became instant and fierce opponents of the suit, claiming the flood authority had usurped the power of the governor and Legislature and threatened to undermine cooperative agreements with the oil industry to help repair the coast.
The Flood Protection Authority has countered that its constitutionally created status as a politically independent subdivision of state government gives it the authority to pursue lawsuits. Further, it claims the law governing membership on the nominating committee shows that the Legislature’s intent was to keep it free of interference by politicians.
The governor as well as some members of the Legislature involved in passing the laws disagree. And Jindal, the state’s most powerful politician, didn’t wait long to announce he was stepping into the fray.
As the nominating committee prepared in October to consider candidates for four open seats on the nine-member board of the flood protection authority, Graves said his boss would not accept any nominee who supported the lawsuit.
That threat seemed to work. The panel voted not to re-nominate the vocal leader of the lawsuit, John Barry, and said they were doing so specifically because the governor opposed him.
Jindal had soon gained three seats. He accepted two nominees he had pre-screened as opponents of the suit. He then added a third anti-suit member by means of unilateral selection, an option the law allows the governor if the committee fails to make a nomination “in a timely manner” when a term expires. In this case he was filling a seat that had expired more than a year previously.
The governor’s actions and the panel’s acquiescence had plenty of critics. Barry charged the committee had betrayed the public’s trust. Some of its own members were also unhappy with the intrusion of politicians into the process.
Nick Altiero, who represented Tulane University’s School of Science and Engineering on the committee, said, “We’re being put in a position, in my opinion, to send up inferior candidates, and I don’t think I was put on this committee to put up inferior candidates.”
Jindal was not finished, nor was he going to wait until the state’s annual legislative session is gaveled to order in March, where he hopes to use his power to derail the suit.
He had failed to get a fourth seat during the October changes when the committee re-nominated Tim Doody, the authority’s sitting president, and retired judge Richard Gorbaty for the St. Bernard slot. Jindal never acted on either nomination. In that January letter Graves declared both men ineligible and asked Lapeyre to reconvene the committee and “select new nominees.”
Jindal’s office did not respond to a request for comment for this story.
This latest move by Jindal may be the first of several as the administration probes for handholds on the nominating process — including timetables and deadlines for action — that will allow the governor to gain control of the Flood Protection Authority once and for all.
There is little debate that Gorbaty no longer qualifies. The retired judge is now chief administrative officer of St. Bernard Parish, and state law prohibits public employees from serving on the Flood Protection Authority for a year after they leave government work.
But Jindal’s claim that Doody is ineligible because of “a conflict of interest relating to his employer” is dubious.
Doody previously acknowledged that the law firm he works for had asked him to recuse himself from votes involving the lawsuit because the firm might represent some of the plaintiffs in the future.
But the state Board of Ethics already ruled that anti-suit board member Joe Hassinger, also a lawyer, can continue to serve and vote on lawsuit issues — even though his firm represents defendants in other matters.
The call by Jindal for more nominees in place of those he dislikes raises legal questions that were left unanswered by the first-time incursion of a politician into the process, Lapeyre said.
What happens if the governor vetoes a qualified nominee? Is the committee required to find nominees the governor likes?
State law says sitting members continue to serve until they are replaced, which raises the possibility of standoff: Could the board repeatedly send the same rejected nominee to the governor?
Lapeyre said he still isn’t certain what the law allows, or what his committee will decide to do.
“Do we even have an obligation to meet and send up new nominations? I’m not certain if that’s clear in the law,” Lapeyre told The Lens. “Can we just send the same person we think is the most qualified back to the governor even if he rejects them? I don’t know the answer to that, either.”
In fact, Lapeyre isn’t sure his committee would even agree to consider the governor’s request until after it meets, something that won’t happen until Feb. 25 at the earliest.
Yet if the committee decides not to send new nominees to Jindal — even those he has already rejected — the governor might claim the right of another unilateral appointment under the time-limit portion of the law.
Lapeyre said his reading of the law requires sending the governor nominations within 60 days from the date the state publishes a call for applications, which apparently went out Jan. 16, the day Graves sent the letter to Lapeyre.
Seats on the flood authority board expire at the end of June, which would make Aug. 31 the deadline for a fresh round of nominations. But Lapeyre said the committee never honored that deadline in the past because it felt it couldn’t be sure of current law until after the end of the state Legislature’s annual session and the governor’s veto period that follows it. The authority’s first yearly meeting had usually been in mid-September.
“No one has made that an issue until now,” Lapeyre said.
“There are just a lot of issues that have come up as a result (of the lawsuit) that we never had to deal with before.
“We’re in uncharted water now.”
