After months of debating whether to sue its monitoring firms, Livingston Parish now has no choice but to square off in court against the firm that oversaw a portion of the $59 million in Hurricane Gustav debris removal that FEMA has refused to reimburse.
Alvin Fairburn & Associates, which oversaw debris removal in the parish’s canals and drainage ditches, will be allowed to pursue a claim against the parish for $5 million in unpaid monitoring work, a federal judge decided Wednesday.
The ruling marks the first time the parish and one of its contractors have locked horns in court since a federal arbitration panel ruled in June that the Federal Emergency Management Agency does not have to pay any of the $59 million, including $44 million in canal work, that Livingston claims it is still owed for debris removal following the 2008 storm.
Parish legal adviser Christopher Moody, who in September had urged the Parish Council not to sue the monitoring firms, for both legal and practical reasons, said Wednesday’s ruling will require the parish to rethink its legal strategy.
“Obviously we can’t allow them to come after us without turning around and pursuing our claims against them,” Moody said.
Parish President Layton Ricks, who worked for Fairburn during the Gustav cleanup, declined to comment on the ruling Wednesday, saying his legal team had advised him against it.
Fairburn lodged its $5 million claim against the parish nearly two years ago in response to a federal whistle-blower lawsuit that former contractor Corey Delahoussaye filed against the parish, Fairburn and others in 2012.
Delahoussaye, whom the parish hired in 2009 to help resolve wetlands permit issues stemming from the cleanup, claims the parish and its debris contractors conspired to terminate his contract because he exposed allegedly illegal cleanup work.
U.S. District Judge Shelly Dick, in Baton Rouge, dismissed Fairburn and the other firms from the case last year, saying Delahoussaye failed to prove they were part of any conspiracy.
Fairburn’s claim against the parish was never dismissed, however, and the firm revived it in late October, after the Parish Council reopened discussions of suing the monitoring firms and negotiations for settling other legal disputes with Fairburn fell apart.
Attorneys for the parish asked the court to throw out Fairburn’s claim, arguing it had nothing to do with the whistle-blower lawsuit.
But Dick ruled Wednesday that Fairburn’s performance under its monitoring contract with the parish — and whether the firm had done anything illegal or improper to warrant withholding payment — was part of Delahoussaye’s underlying claim about why his firm was fired.
Parish officials have said they fired Delahoussaye because his firm’s $2 million in invoices were based on falsified time sheets. He faces 81 counts of fraud and theft in state court related to those claims.
The parish’s primary debris removal contractor, International Equipment Distributors, also filed a $52 million claim against the parish in state court in 2011 for unpaid cleanup work. The financially strapped company has not pushed forward with its case, after the U.S. Civilian Board of Contract Appeals denied the parish’s last-ditch effort at securing FEMA funding for the work.
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