LETTER: Caldwell Responds to “Cover-Up” Allegation

The following letter was provided to LaPolitics.com Monday afternoon. The original document can be viewed here.

It all started with a Nov. 5 guest column Attorney General Buddy Caldwell wrote exclusively for LaPolitics.com at our request.

State Sen. Robert Adley, R-Benton, then proffered his own reply Nov. 19 in the form of another op-ed, accusing Caldwell of a "cover-up," and asked that it be published on LaPolitics.com.

Below you will find Caldwell's response to Adley's column.

November 25, 2013

Dear Senator Adley:

We have discussed this issue in the past and I regret that you have turned it into a public discussion. But, by bringing this into the media via your November 19, 2013 LaPolitics OpEd, I am compelled to respond publicly as well.

You voted with the majority of the Legislature in the 2006 Extraordinary Session to change the Louisiana constitution to establish regional flood protection authorities; to amend the existing law [RS 38:330] to create the Southeast Louisiana Flood Protection Authorities (SLFPA) East and West; and to empower their governing boards with the authority to have general counsel (salaried attorneys, district attorneys and the attorney general), as well as special legal counsel (outside, private law firms). You voted yes and we expect that you, as a lawmaker, understand the laws that you enact.

However, in your November 19th OpEd, you made several mistakes.

First, you cited only a partial section of the law to support your assertion that there is some kind of cover up going on and that SLFPA is only allowed representation by the attorney general. Specifically, you wrote:

This law provides in part: “The state attorney general and his assistants shall be and are hereby designated as counsel . . .”

However, the words you replaced with an ellipsis are, “when called upon to do so.” Perhaps your misunderstanding of the law will be cleared up by reading it without omitting those words, which are essential for comprehension:

“The state attorney general and his assistants shall be and are hereby designated as counsel for each flood protection authority in the execution of the purposes of this Chapter and are hereby charged with the responsibility of representing each authority in any and all matters when called upon to do so.”

SLFPA and its levee districts often exercise the constitutional and legal rights the Legislature gave them to hire special counsel and, at any given time, may have scores of lawyers working on a variety of issues including complex real estate litigation, labor law, mineral law and more. [See attached list of special counsel that recently have or are currently are working for the SLFPA.]

You also attempted to differentiate between the “authority” and the “board” by asserting that the “authority” can’t hire special counsel. Louisiana law RS 38:330.10 makes it very clear that when referring to the “levee board,” “board of levee commissioners” or “board of commissioners” that it is the same as referring specifically to the governing body of the political subdivision SLFPA (the authority).

When SLFPA decided to sue 97 separate oil and gas companies, they abided by the law. The governing body passed a resolution and submitted it to my office to review. As required by law, we reviewed the resolution to ensure that:

— The resolution explains a real necessity.

— The fee is reasonable under the circumstances.

— The resolution is in compliance with Louisiana law.

— The attorney or law firm is in good standing with the Louisiana State Bar.

As I told you when we spoke in person about this, my office approved SLFPA’s resolution because a real necessity was described; the contingency fee range of 22.5% – 32.5% is within the legally acceptable range; the law firm they selected is in good standing with the Louisiana State Bar; and the resolution is in compliance with Louisiana law. Due to the law you helped enact, this is as far as we can legally go. It does not allow my office to disapprove a resolution if I happen to disagree with any of its premises.

Louisiana is an oil and gas state. My support of and good relationship with many business and thought leaders in that industry is not something that can influence me or my team’s fulfillment of our legal duties under the laws that you and other legislators enacted. As long as the board has acted legally, there is nothing else that I or my staff can lawfully do at this point, whether I agree or disagree personally or professionally with SLFPA’s decision to sue these companies or do so via a contingency fee contract.

I suggest that if you don’t like the way this law is being used, especially in the oil and gas industry in which you work and make your living, you — as a lawmaker — take action to change it. I — as Louisiana’s chief legal officer — cannot.

I welcome you to come by or call my office at any time in the future to discuss the fine points of this or any law about which you have concerns. I much prefer it to airing legal misunderstandings or giving legal counsel to our clients, via the media.

Regards,

James D. “Buddy” Caldwell

Attorney General

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