Two former members of a New Orleans-area levee board who strongly backed a controversial lawsuit against scores of oil and gas companies will not be returning to their old positions anytime soon after a nominating committee passed over them Wednesday.
John Barry and Tim Doody, both of whom were replaced on the Southeast Louisiana Flood Protection Authority-East by Gov. Bobby Jindal after the board filed suit against nearly 100 energy companies in 2013, had each sought reappointment now that the state has a new governor.
But concerns about their eligibility and a push by nominating committee Chairman Jay Lapeyre, who had supported moves to remove Barry and Doody three years ago, apparently killed their potential appointments.
Lapeyre also pushed successfully to keep current Flood Protection Authority President Joe Hassinger, who was appointed by Jindal to replace Barry, on the board.
The committee voted Wednesday to nominate a slate of candidates, including Hassinger, for five positions on the board from a list of nearly 20 applicants. But of all those positions, Barry's application proved to be the most controversial.
The latest debate over nominations to the Flood Protection Authority — which oversees the levees, floodwalls and other structures that offer protection from storm surges to the east bank of Orleans, Jefferson, St. Bernard and other parishes — comes nearly three years after the board became the center of a political firestorm by suing oil and gas companies for damage it said they had caused to coastal wetlands over nearly a century.
That suit was dismissed by a federal district judge and is now on life support as it awaits a ruling from the 5th U.S. Circuit Court of Appeals.
Wednesday's discussion also revived arguments over whether filing of the suit or the Jindal administration's response to it amounted to the politicization of a board that was set up to avoid politics and focus on flood protection.
Lapeyre said he had assurances from Hassinger, who was originally appointed to replace Barry and sought to end the suit, that the board would allow the matter to play out in the courts.
Barry also told the nominating committee that the matter is now one for the judges and not the board itself, adding that it would not have become a political issue had Jindal not made it one.
"There was no reason for the lawsuit to be an issue or a distraction for the levee board had it been left to the lawyers, as it should have been," Barry said.
Lapeyre cited an attorney general's opinion that Barry and Doody were not eligible to be appointed now because they had served as commissioners for more than six years each. Term limits imposed on the board, and adjusted in a bill by state Rep. Walt Leger that was passed this year, prohibit board members in that position from serving another term unless four years have elapsed since their terms ended. That would be in mid-to-late 2017 for Barry and Doody.
Lapeyre also said Barry could be seen as having a conflict of interest because after his ouster from the board he set up a nonprofit to lobby to try to prevent the Legislature from passing bills to kill the lawsuit; the group also was to support the lawyers representing the Flood Protection Authority in the case. One of those bills eventually passed, but it has had little or no effect on the case.
Barry said his work with that group, Restore Louisiana Now, did not pose a conflict of interest because he had done it on a volunteer basis.
"I've never been paid by it, nor will I be paid by the attorneys. I worked 13 months pro bono," Barry said. "I got zero salary from Restore Louisiana Now. We did pay for pollsters and stuff like that and mailers and printing."
The nominating process for the Flood Protection Authority is a complex one. Nine commissioners sit on the board, and they must include a specific mix of residents of various geographic areas and people with certain technical expertise and professional qualifications.
For the technical and professional seats, the nominating committee essentially picks the single candidate it thinks is best for the job. For other positions, the committee is required to send up two names and allow the governor to choose between them.
In the end, the committee nominated Hassinger, a lawyer, and Ed McGinnis, a project manager for Monsanto, to the seat representing Orleans Parish.
Hassinger originally fell one vote short of the majority needed to be nominated Wednesday, but he eventually got nearly unanimous approval after Lapeyre made a plea that other members support him because of the work he has done over the past several years. He also argued that turning down Hassinger's reappointment would amount to removing the board's chairman solely because of the politics of his original appointment.
"I'm stunned. I really don't know what to say," Lapeyre said. "This is a world that we are now moving into that I think is a no man's land of politics that I don't understand."
Janet Howard, former head of the Bureau of Governmental Research, voted against Hassinger both times.
For the St. Bernard Parish seat, the board nominated current Commissioner Clay Cosse, the parish's former director of housing and redevelopment, and Elizabeth Williams, president of the National Food and Beverage Foundation.
The terms for that seat and Hassinger's seat start in 2017.
Quentin Dastugue, chief executive officer of Property One, and John Nyman, a professor at LSU's School of Renewable Natural Resources, were nominated to a spot for a commissioner from outside the district. That seat is now empty; whichever nominee is selected by the governor will fill out the last year of the term.
Herbert Miller, an engineer from Jefferson Parish, and Andrew Englande Jr., a retired Tulane University professor of global environmental health sciences, were picked for technical spots. Those terms start as soon as the nominees are appointed by the governor.
Editor's note: This story was altered on Sept. 8, 2016 to correct the vote on Joe Hassinger's nomination. Janet Howard, the former head of the Bureau of Governmental Research, voted against Hassinger both times.