The political independence of the Southeast Louisiana Flood Protection Authority – East — under fire from politicians for its lawsuit against oil and gas companies — could come to an abrupt end next Tuesday.

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John Barry

That’s when the state’s highest ranking politician and most outspoken critic of the lawsuit, Gov. Bobby Jindal, may be able to supplant a citizen nominating committee and make his own selections to fill three open seats on the levee board.

“The only part of the entire process which is truly nonpolitical is the nominating committee. If they fail to act, it’s like putting your head on a chopping block. You know the governor is holding an axe, and he’s sharpening it.” — John Barry

State law says the governor must select flood protection authority members from nominees forwarded by the committee. But that requirement comes with a proviso: If the committee doesn’t reach a decision within 90 days of a vacancy, the governor can make his own selection.

The 90-day deadline is Monday. Two weeks ago the committee said it did not have enough qualified applicants to make nominations for all open seats, though that problem appears to have eased.

While committee members have said they are not asking applicants their position on the lawsuit, the Jindal administration certainly will. Garret Graves, head the state Coastal Protection and Restoration Authority, has said nominees who support the lawsuit would be unacceptable.

The nominating committee is scheduled to meet Monday, its last chance to prevent Jindal from pre-empting its role. While Graves in an email exchange with The Lens Monday said the governor intended to “respect” the nominating process, he would not say Jindal would definitely appoint the committee’s choices — even if the nominations were received before the deadline.

In fact, the governor still has not approved the reappointment of board member Ricardo Pineda forwarded to him by the committee more than a year ago because the Senate, which must approve the appointments, signaled it would not do so, said Robert Scott, a committee member. The law says members can continue to serve after their terms expire until a new member is approved, however, and Pineda has remained an active member.

Jindal’s handling of the Pineda re-nomination suggests he believes the law does not require him to act on the committee’s recommendations. And he may be right, says David Marcello, executive director of The Public Law Center at Tulane University Law School.

“The law says ‘shall’ choose from nominees sent by the committee, but this is one of those cases where the use of the word is permissive,” said Marcello. “It says ‘shall’ but it means ‘may’ – he may choose to select one of the nominees, or he could choose to do nothing.”

Uncertainty about exactly what the law requires has prompted Scott, who is president of the Public Affairs Research Council, to ask the state Attorney General for guidance.

“The Attorney General has already told us the deadline is Sept. 30, clearing up some confusion about that – so we’re glad we still have a window to act,” Scott said. “But we need a better understanding of what happens if we submit two names and the governor rejects them. Then what happens?

“Would it be whoever is in that seat continues to serve — or would it be the committee goes back and submits more names?  And what about the deadlines then?”

John Barry, vice president of the Flood Protection Authority and a leader of the lawsuit, said allowing the deadline to pass and the governor to make his picks would be a betrayal of the reform movement that aimed to remove politics from the levee board system.

“The only part of the entire process which is truly nonpolitical is the nominating committee,” he said. “They have a meeting on Sept. 30. If they fail to act, it’s like putting your head on a chopping block. You know the governor is holding an axe, and he’s sharpening it.”

The creation of a regional Flood Protection Authority staffed by professionals who serve without pay and are isolated from control by politicians was the result of a grassroots movement in the wake of deadly levee and floodwall failures during Hurricane Katrina.

A state constitutional amendment allowing creation of a regional authority passed with 81 percent of the vote. The Legislature then passed a law setting out requirements for board members and the nominating committee that were seen as carefully constructed to block interference by elected officials.

The law requires the nominating committee to consist of members from specific professional, academic and government watchdog groups.

The criteria for membership to the nine-seat Southeast Louisiana Flood Protection Authority-East was carefully defined by lawmakers:

That system operated smoothly and below the political radar until August, when the Flood Protection Authority board voted unanimously to file suit against 97 oil, gas and pipeline companies for their role in destroying coastal wetlands, claiming that loss has greatly increased the cost of protection from storm surge within its jurisdiction.

Fears the administration will attempt to stack the board with members opposed to suing the oil and gas industry are not misplaced. Graves told The Advocate recently that opposition to the suit would be a “litmus test.” However, any member Jindal may appoint without the committee would still have to meet the criteria and fit into the matrix spelled out in the law..

Jindal and Graves have been aggressive opponents of the suit, claiming the flood protection authority overstepped its powers and that the suit could disrupt current and future cooperation from oil companies they consider critical to the state’s coastal restoration projects. Both have vowed to kill the suit and reconstitute the board.

The opportunity to do just that was available immediately because the terms of three board members expired on July 1:

Barry and Doody, members since the board’s inception, have applied for renomination, but both clearly would fail Jindal’s litmus test.

Jay Lapeyre, chairman of the nominating committee, said concerns voiced at its Sept. 16 meeting about having too few applicants have eased.

“You always want a deeper pool of qualified candidates because you can come up with the best nominees, but we were particularly short in St. Bernard and St. Tammany – where we had none at one time,” he said. “Now we have one from St. Tammany with another in the works, I’m told.”

Lapeyre admitted the deadline was an issue, but said the members were concerned about their duty to send qualified applicants, not just names.

This story was originally published by The Lens, an independent, nonprofit newsroom serving New Orleans.

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