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Case dismissal clarifying flood board politicization to all

Fool the Baton Rouge Advocate’s editorialists once, shame on you. Fool it twice, shame on them. And maybe that’s enough, as their eyes now seem wide open to understanding the unavoidable political nature of any government agency, no matter how allegedly protected it is and/or should be “independent” of politics – at some cost to the taxpayer.

After the Southeast Louisiana Flood Protection Authority-East sued nearly a hundred petroleum extraction companies or their successors for reputed damage to the Louisiana coastline over decades and the Louisiana Legislature responded by legislating to negate that and Gov. Bobby Jindal began using his gubernatorial powers to pick members to the SLFPA-E opposing the suit, howls came from some about how such tactics produced (in the words of one Advocate opinion writer) a “loss of independence” concerning a board that many wished somehow was above politics. The suit now functions on life support after a federal judge routed it out of court in a way that almost nobody believes it has any of chance of survival on appeal.

Except, of course, for the lawyers who, with renegade former members of the SLFPA-E’s governing board Tim Doody and John Barry, concocted a contract approved by the board that means any attempt for the agency to stop the suit before it is concluded means it owes a huge payday of taxpayer dollars to the Jones Swanson Huddell & Garrison law firm and the discretion to pursue the suit lies totally in the firm’s hands, which the firm has chosen to continue despite the Advocate's pleading to desist. The nature of the contract leads to disputation over the final disposition, but that could be anything from, at worst, losing or withdrawing and the agency (read "taxpayers") owing the firm perhaps into the eight figures of dollars to, at best, doing either and losing nothing monetarily.

The Advocate’s editorialists caught on to that, and now complain that “the agency’s independence is under attack again,” suggesting perhaps they are having second thoughts about that concept of “independence.” As well they should; that they and others ever conceived of the board as something above politics displayed profound ignorance about the nature of government and politics. Quite simply, policy-making is by definition an exercise in politics, for the latter is concerned with the acquisition and deployment of power. Give any agency any power over any area of policy, and it will act politically in that it will favor certain interests at the expense of others.

Not only by definition is use of power political in that choices are made of what to do, when to do it, and how to do it, but also that, as we live in a world of scarce resources where nobody can have everything go his way in terms of policies and their outcomes, winners and losers are created as a result of its use. And to think that ideologies and political agendas do not serve as inputs to the decisions made about what, when, how, and who benefits connotes an astonishing flight from reality. “Independence” from politics as a quality of these organizations is nothing more than fantastical myth.

That was evident from the very start of the suit, as Barry and others admitted it was an exercise to treat oil companies as piñatas to score bucks by which to fund the agency’s grandiose – and politically determined – agenda. For the same mechanisms that attempt to insulate from political pressure also seal off the agency from responsibility and accountability, allowing formation of a rogue mentality to fester that owes fealty only to the political prejudices of whatever majority may control it.

Worse, in the instance of this suit the politics may have gone beyond just the ideological. After his ouster, Barry created an organization called Restore Louisiana Now, dedicated to the suit’s success. But when asked last year at an SLFPA-E board meeting whether the firm had contributed money to the organization, after initially insisting not, Barry amended his remarks to that “he was not certain about that” and that he would neither confirm nor deny receipt of any donations from it, stating that as Internal Revenue Code Section 501(c)(4) organization he (as an officer of it) was not obligated to reveal any information about its donors. This only fueled speculation that some quid pro quo occurred in the selection process for lawsuit representation, as some of the new board members not involved in the process have questioned how it occurred and whether it complied with procedures, where Doody (the former chairman) admitted the process was kept intentionally out of public and during meetings and compared to those in the media made contradictory statements about the process.

Regardless of whatever deals might have been struck (there is no hard evidence, only circumstance, to assert that any were), this is what happens when a runaway board joins forces with a runaway law firm, neither accountable to the public. That it would consent to the “poison pill” arrangement that sought to lock it into a certain agenda, designed specifically to prevent its dismantlement, only magnifies for all to see the inherent politicization infused in it. Even if the likes of the Advocate see now at least two instances of non-independence, that it may continue to be unwilling to admit that politics infested the organization all along and drove the decision to sue on that basis does not negate the fact that politicization in decision-making has infested the agency from the start, and guided this incident from the time a majority entertained the notion to sue on the basis that it did, in order to fulfill an ideological agenda.

That has unfortunate ramifications for the public, even if it all ends with no taxpayer dollars spent directly on the suit. For what of all the time and effort wasted on this Ahabian adventure that could have been allocated towards the more mundane tasks of flood protection? Of that of legislatures and courts needed to check such ambition? Of that of executive attention to change the ideological direction of the board? Surely without this distraction policy-making in this issue area more effectively could have addressed the core mission of the agency.

Properly understood, this whole saga has been about reining in an agency following an agenda against the interests of the people, because ideological conflict cannot be suppressed in this or any other government organ no matter how detached from politics it’s supposed to be. Maybe the Advocate and others only now are figuring this out, but it’s better to be late to the party than not show up at all.

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