The state Attorney General’s Office has been asked to weigh in on the issue of how long some commissioners can serve on the New Orleans-area flood protection authorities, a matter that could determine whether two members of the east bank board are up for reappointment this year.
That decision in turn could affect the balance of power between those members of the board — officially the Southeast Louisiana Flood Protection Authority-East — who support a controversial lawsuit against oil and gas companies and those who oppose the suit.
The seemingly simple matter of when a commissioner’s term ends is complicated by different interpretations of the issue by the nominating committee charged with recommending candidates for the boards on one hand and official documents appointing the two commissioners on the other.
Nominating committee Chairman Jay Lapeyre requested the attorney general’s opinion Friday, seeking to clear up confusion over what happens when someone is appointed to fill an unexpired term on the East Bank authority or its sister authority on the West Bank.
On nearly all state boards, a person appointed to replace a member who resigns, dies or is removed simply finishes the rest of that member’s term. But records from the Governor’s Office and the East Bank Flood Authority indicate both believe the new member’s term should run four years from the date of his appointment, regardless of when the term was originally due to end.
Letters from Gov. Bobby Jindal’s office appointing two members to the board in the middle of existing terms specify that each was appointed for a full four years, rather than just to finish out existing four-year terms that were to end in 2014.
Under the nominating committee’s interpretation, however, both commissioners would be up for reappointment or replacement this year. One, Paul Kemp, who was appointed in 2011, has supported the suit against the oil and gas companies. The other, Jeff Angers, is one of three anti-lawsuit commissioners whom Jindal — whose administration has vehemently opposed the lawsuit — appointed to the authority last year.
The issue isn’t a new one. In 2008, three commissioners resigned from the Southeast Louisiana Flood Protection Authority-West after new rules requiring financial disclosure from members of public boards went into effect. At the time, the nominating committee sought informal guidance from the Attorney General’s Office, which suggested the new commissioners’ terms would end at the same time as those of the members they replaced.
However, an official opinion from the Attorney General’s Office could settle the matter more formally.
There’s little sign the issue is directly related to the battle over the lawsuit or the current 6-3 balance on the authority in favor of continuing the suit. Kemp’s appointment in 2011 came years before the suit was filed. And while the appointment letters come from the Jindal administration, supporters of the lawsuit have also argued that Kemp’s term should end in 2015 — which would pre-empt the opportunity to replace him with an anti-lawsuit commissioner this year.
No other commissioners on the east bank authority have terms that end this year, but even if Kemp and Angers are not up for reappointment or replacement, it is likely there will be a change in 2014.
Jindal has not yet made an appointment for the seat occupied by Authority President Tim Doody, whose term expired last year. Doody has continued to serve on the authority in the interim and was recommended for reappointment, though many believe Jindal will replace him with Tyrone Ben, the other candidate recommended for the seat by Lapeyre’s committee this spring.
If both Doody and Kemp are replaced with anti-lawsuit commissioners, that would create a slim majority on the board in favor of dropping the suit.
Matters are further complicated by the fact that the nominating committee is required to select only one candidate for the seat Kemp now holds, potentially taking the issue of who fills that seat out of the governor’s hands. However, because of the complex way nominations are handled, Kemp could potentially be moved to a different seat that would require the committee to provide Jindal with two options when the committee meets later this year.
The nominating process has traditionally been a routine, noncontroversial event. That changed last year, when the east bank authority sued 97 oil and gas companies because of coastal erosion allegedly caused by their drilling and dredging activities. According to the suit, that erosion has led to more dramatic storm surges in the New Orleans area, requiring larger and more complex protective systems.
The debate over the nominating process comes amid other political battles aimed at sinking the levee authority’s lawsuit.
The state House is expected soon to take up a bill by Sen. Bret Allain, R-Franklin, that would prevent the authority from filing such suits. That bill, which has already been approved by the Senate, would apply retroactively.
Another bill still pending in the Senate would give the governor the ability to remove members from the authority under some circumstances. But that bill, filed by Sen. Robert Adley, R-Benton, has been stalled largely due to opposition from New Orleans-area lawmakers who argue it would undermine the authority’s independence.
Follow Jeff Adelson on Twitter, @jadelson.