The spring heat grew stagnant and oppressive in the windowless, sixth-floor Washington, D.C., courtroom with only intermittently working air-conditioning, but Mike Grimmer didn’t dare remove his coat.
Sitting right by the judges, Grimmer angled his chair slightly away from the opposing attorneys, whose table was only a few steps in front of him in the cramped hearing room.
Grimmer had waited through four days of testimony from contractors, arborists, hydrologists and engineers to answer the one question he believed the three-judge panel most wanted to ask.
Why, as the Livingston Parish president dealing with a massive storm cleanup, had he stopped the parish’s Hurricane Gustav debris removal program and requested an audit of the work?
It was that May 2009 call that years later brought Grimmer and a handful of other parish officials, past and present, to the five-day arbitration hearing last month to discuss more than $59 million in cleanup costs the Federal Emergency Management Agency repeatedly has refused to pay.
The outcome of the dispute threatens to cripple the parish financially, but the former parish president said in an interview last week that no one should be surprised or angry that he testified for FEMA, when it’s the same story he has been telling for five years.
Grimmer’s decisions from that time period continue to pervade the parish’s politics. They cost him his political career, provoked lawsuits between contractors and against the parish and even led, in part, to state criminal charges against one contractor who became a FEMA consultant.
Current Parish President Layton Ricks, who defeated Grimmer in a contentious November 2011 election battle centered on the debris issue and had worked for a monitoring firm that oversaw the cleanup, was also at the hearing. He said he never would have imagined a former parish political leader testifying against his hometown government.
“And to add insult to injury, he was paid for it,” Ricks said.
FEMA paid Grimmer $100 per hour for his testimony.
“Livingston Parish is being held to a higher standard that no one else has been held to, and the burden of proof has been so great,” Ricks said. “I don’t think that would be the case had he not stopped the work.”
In May 2009, nine months after the storm downed trees and power lines, clogging canals across the parish with foliage and other debris, Grimmer first laid eyes on a FEMA project worksheet for $42 million worth of debris removal work that already had been performed.
That figure was alarming, Grimmer said.
Initial estimates for the parish’s debris cleanup hovered around $10 million, and 44 pay requests then-Office of Emergency Preparedness Director Brian Fairburn had signed by May 2009 totaled only $3.5 million, Grimmer said.
Grimmer said he had no idea how the parish’s costs had leapt from $3.5 million to $42 million, with crews still working to clear the parish’s waterways.
Critics contend he was absent from the job following the storm, spending time at his Grand Isle camp while Fairburn steered the cleanup effort.
“There was discussion of I wasn’t there, I was at Grand Isle, but that’s all a ploy,” Grimmer said. “The parish president can’t be everywhere at one time, so you delegate authority.”
On the stand for more than two hours, Grimmer walked the judges through the cleanup contracts, the division of work, the problems he began to see with permitting, private property damage and ineligible work, and the steps he took to shut it all down.
The questioning was intense, reflecting the high stakes on both sides. Throughout the hearing, the judges frequently admonished the attorneys, and at times an occasional witness, to tone down their aggressive postures.
Ricks said he thought both sides “had their moments” during the hearing, and “Mike was one of them, certainly.”
“He presented his side of the story as to the reasons why he stopped it,” he said. “I disagree with that, but he was in the chair at the time and stopping it for reasons he thought he should stop it.”
Grimmer’s recollection of the timing of the cost estimates coming in doesn’t jibe with the paperwork from the period. Four months after Gustav hit on Sept. 1, 2008, the cleanup costs already had climbed past initial estimates. In January 2009, Grimmer signed a $16.6 million request for reimbursement from the Governor’s Office of Homeland Security and Emergency Preparedness for cutting and removal of hazardous leaning trees and hanging limbs.
However, that figure did not include any of the debris removal from 425 miles of parish waterways — cleanup that continued through the spring and accounted for the bulk of contractors’ costs.
The waterway work accounted for roughly $32 million of the eventual $42 million project worksheet, known as PW 54, that grabbed Grimmer’s attention in May 2009.
Grimmer then made three decisions that would change the direction of the parish’s debris removal program — and of his political career.
He refused to sign the PWs. He halted the debris program. He asked the Louisiana legislative auditor to review the work performed.
Grimmer contends his decisions had little if any effect on FEMA’s funding of the work, saying, “Even if I had would’ve signed the PW, they would’ve reviewed it, asked for documentation and it all would’ve bogged down anyway.”
But Ricks, who worked for engineering firm Alvin Fairburn & Associates — which monitored debris removal for the parish — before his election as parish president, said Grimmer’s about-face flipped the burden of proof on its head.
FEMA regulations call for giving the applicant parish the benefit of the doubt in eligibility determinations, Ricks said.
As the result of Grimmer’s decisions, Ricks said, FEMA instead required more documentation from the parish than necessary under the agency’s regulations — and more than required of any other parish.
“Everybody had to scramble to figure out what they needed to do to meet the new standards, and we spent bunches of money for people to go back and double- and triple-track work that had already been done,” Ricks said.
Grimmer said he could not sign the PW because of concerns that the contractors had failed to secure wetlands permits and entered private property and cut down trees without permission.
Grimmer’s worst fear, he said he told the judges, was that he would certify the work and then, when the project closeout came, be the only one left sitting at the table to hear the federal government’s news: “You owe us back $30 million, $15 million, whatever it is. And then the public would blame me, just like they did when I stopped it.”
When Grimmer halted the work, he asked for an estimate of the costs incurred to-date as well as a projected total to finish the job.
The answer was worse than he thought: $65 million in completed work, $92 million projected total, according to a June 9, 2009, letter from Professional Engineering Consultants, the parish’s main monitoring firm on the project.
“Forty-two (million dollars) blew me out of the chair. There’s no doubt about that. But when you’re looking at 92 (million dollars), you ask yourself, this can’t be for real,” Grimmer said.
Three separate analyses of the parish’s leaners and hangers work by FEMA and the Louisiana legislative auditor indicated little of the work was eligible — ranging from 34 percent to 7 percent.
In its analysis, FEMA cited numerous problems, including the removal of limbs and trees that did not imperil rights-of-way or public safety, had rotted before the storm or did not meet cut-size requirements.
FEMA later alleged the monitors were inexperienced, poorly trained and specifically advised to document ineligible work and submit fraudulent claims. The agency threatened to seek an investigation with the Office of Inspector General.
Representatives of debris contractor International Equipment Distributors, the two monitoring firms and the parish’s legal team have denied FEMA’s allegations, calling the agency’s analysis “highly flawed and incorrect” and its threat of investigation “gratuitous” and “improper.”
PEC’s own analysis of the work concluded 89 percent was eligible for reimbursement.
While the FEMA audits were highly critical, the parish’s legal team asserts that FEMA sent decidedly mixed signals. For example, the agency’s personnel on the ground during the cleanup praised the contractors’ work, they said.
Having exhausted its appeals with FEMA, Livingston Parish entered binding arbitration before the U.S. Civilian Board of Contract Appeals. The financial ramifications are real, with a $52 million lawsuit filed in state court against the parish by International Equipment, the debris contractor, in 2011.
The contractor’s suit is on hold pending the outcome of the arbitration. The panel could take 60 days to rule.
Given FEMA’s posture with the parish, Ricks said reaching a settlement with the agency is unlikely.
Even if the parish wins at the arbitration hearing, it will still have to find the funds for the 5 to 10 percent match, Ricks said.
“It’s no secret the parish doesn’t have those kinds of dollars,” Ricks said.
Options include long-term borrowing or, possibly, a forgiveness of the debt, he said.
Although the decision could be less favorable, Ricks holds out hope that the financial impact won’t be devastating. If the judges award the parish only part of its $59 million claim, it’s possible the award would be enough to satisfy each of the stakeholders, he said.
That hope may all but vanish if the judges side with FEMA and award the parish nothing. What happens at that point is not clear but potentially devastating for a parish with an annual general fund of only about $8 million.
Grimmer said his testimony wasn’t about fighting the parish but about doing what he thought was right. But his stance already has cost him with his former friends and neighbors back home.
“I’ve had people that I have literally raised, that I kept a paycheck for every week and kept them on the payroll, that I raised their kids, that walked away from me,” he said. “It hurts, but you can’t take it personal.”
Given the chance to do it over again, Grimmer said he would do nothing differently.
“But do I think it’s over just because I testified? No. For me and my family, it’s not over,” he said. “It’s one of those little marks in history that, you know, (I’m) just going to have to live with.”