It’s fair to say Thursday was an emotional roller coaster for John Barry in his quest to protect the local flood authority’s lawsuit against oil and gas companies for damaging wetlands – a suit he helped engineer.
In the morning, he was given a standing ovation by the audience at a packed Basin St. Station for the information he provided at The Lens’ inaugural Breakfast with the Newsmakers event.
But he spent the afternoon at a long, tense and sometimes heated meeting of the Southeast Louisiana Flood Protection Authority-East in a mostly losing effort to fend off attacks on the suit by Gov. Bobby Jindal’s administration and its new allies on the board.
Barry was on the agenda to supply background on the suit to the three new members placed there by Jindal, seats they secured after pledging opposition to the suit: Joe Hassinger, Jeff Angers and Kelly McHugh.
Almost as soon as Barry was finished, the attacks began. Hassinger wanted to know why Barry had not consulted the Legislature, and why he had not tried to work with the oil industry – mirroring charges made by the administration.
Then Garret Graves, Jindal’s coastal chief as head of the Coastal Protection and Restoration Authority, took the podium. After repeating his contention that the real villain in coastal loss is the U.S. Army Corps of Engineers for building levees on the Mississippi River, Graves went after the board’s contract with outside attorney Gladstone Jones. Graves said the contract the board signed with Jones would leave the board and city hundreds of millions of dollars in the hole – and the coast no better off.
Graves then revealed he had written the state Attorney General asking him to rescind his August approval of the contract.
That contract is a contingency-fee arrangement, with the lawyers making money only if they win. It includes a provision allowing the attorney to recoup expenses if the client decides to back out. It also includes a unique feature allowing Jones to recover expenses if a third party cancels the suit. This was put in, the board has said, to protect Jones should the Legislature find a way to kill the suit.
Hassinger, an attorney, made motions to find out how much the attorney’s bill is to date.
Jones reported expenses so far by the three firms working on the case were $783,000.
That did not include the cost of 8,000 hours spent by the lawyers on the case, he said.
Hassinger wanted to know what the hourly rate was.
Jones surprised the audience and scored no points with the board when he said, “I have no idea. That is something I would have to determine when the case is over.”
Hassinger pushed back: “You mean you can’t give us a ball-park figure?”
Hassinger got a few laughs when he responded, “Please?”
Jones wasn’t laughing as he left the podium.
Graves later used that exchange as more ammunition to attack the contract, the attorney and the suit.
Jones later explained his refusal.
“I have no idea what the hourly rate is because by law that would be set by negotiation with the client or by an arbitrator,” he said. “It’s what is called a blended rate. It takes into consideration what the state is paying contract lawyers, what it pays outside counsel, and what my hourly rates are for cases of this type.
“For example, some contract lawyers for the state are paid $185 per hour. But the firm they hired for the BP case is getting $600. So there is a wide range.
“We sit down and if we can’t reach an agreement we got to arbitrator, and if that doesn’t work, we go to court.”
Jones added, “Right now the board doesn’t owe us anything. And if we go to court and we lose, they still don’t owe us anything.”
The afternoon didn’t get any better for the pro-suit forces.
Hassinger pushed through a motion asking the Legislative Auditor to review the contract even after Barry pleaded with them not to. Hassinger wants that office to review the contract to make sure it is legal, but also to see if its payment provisions would not hinder the board from doing its job maintaining the flood protection system.
Barry urged the board to reject the idea. Going to an official who works for the lawmakers would aid politicians eager to kill the suit, he argued. Further, he said, the contract had already been reviewed and approved by the board’s attorney and the attorney general.
But by a 5-4 vote the board rejected a motion to table, and then voted to send the contract to the auditor.
The last blow to suit supporters came when the board took up a motion by Steven Estopinal to reaffirm its support for the suit. Clearly disgusted by all the attacks, Estopinal said, “Let’s just show we’re supporting this, or end it now and have them (Jones) send us a bill.”
But new member McHugh offered a motion to table the issue until after the auditor’s report.
That motion passed, taking supporters off guard.
Even with six members still serving from the nine-member board that voted unanimously to file the suit, there were not enough votes to reaffirm that support.
Barry said he wasn’t surprised by some of the early votes, which he took as a move by some senior board members to show support for the newcomers.
But the last vote clearly hurt.
“I was surprised by that,” he said. “I would have liked to have seen that vote of support.”
Correction: This story originally misspelled Joe Hassinger’s name. (Nov. 21, 2013)