It looks as if it will have taken three years to get the Cypress Black Bayou Recreation and Water Conservation District to follow the law. In a similar situation, it will take at least over twice that time to get the Bossier Parish Police Jury to do the same.
This week, the Louisiana Supreme Court added another, and likely penultimate stop, to the saga involving CBB Executive Director Robert Berry, who problematically also serves as one of the five commissioners with power over the executive director. He was appointed by the Bossier Parish Police Jury with his five-year term expiring at the end of June.
It’s a long and convoluted story, but basically in 2020 Republican Atty. Gen. Jeff Landry’s office got wind of Berry’s dual service and notified CBB that needed to change for it to stay legally compliant. That didn’t happen, but GOP 26th District Atty. Schuyler Marvin did bring a suit to remove Berry. However, some suspicions arose that Marvin, as part of the Benton courthouse gang wanting to protect one of their own, did so in order to draw a ruling to absolve Berry, so Landry’s office intervened and filed a parallel motion.
If that had been Marvin’s intent, it paid off when Republican District Judge Charles Jacobs – who resigned several months later to become Bossier City Attorney – ruled that because Berry recused himself on commission votes, this negated the issue. That essentially forced GOP District Judge Charles Smith to rule the same on Landry’s motion not long after.
This seemed incompatible with the words and intent of the statute, and fortunately Landry, unlike Marvin, didn’t give up. After the Supreme Court ruled the matter had to head to an appellate court first, the Second Circuit Court of Appeals drew the same conclusion as did the trial courts. So, Landry then took the case back to the Supreme Court.
Which then excoriated the lower courts for their misreading of what seems to be open-and-shut. The majority concluded that the basis behind the prohibition on dual officeholding, public trust, is impaired when more than one office with a power relationship of one over the other is held simultaneously by someone. Voluntarily abstaining from decisions in the exercise of the one over the other doesn’t eliminate the public trust problem which is inherent to the arrangement and not defined solely by use or nonuse of power. (Two dissenters wanted the case to be heard by the Court directly.)
As a result, the Court ordered the case back down the line for reconsideration. In other words, it told the lower court to decide on the basis it outlined. As Landry’s office already has filed for the declaratory judgment against Berry, by statute that forthcoming decision will remove Berry from the executive directorship, since his commission appointment is to a fixed term. However, Berry can avoid this by resigning that appointment prior to the court’s decision, which also allows him not to have to pay back his director’s salary and other benefits since around the beginning of 2020 – six months prior to the filing of the summary process petition – that would total nearly a half-million dollars (he had been refusing the commissioner stipend, so by resigning that post he doesn’t have to pay back anything from that).
Should events unfold this way, the Jury would have to appoint someone to fill the remainder of his term and then also for the next term, unless the eventual timeline compresses the two to dispense with the interim appointment. Regardless, the Jury itself soon may face its own dual officeholding legal crisis.
That’s because, since 2016, the Jury has had at least two of its members serve on the parish’s Library Board of Control; in fact, all five current members are jurors (only one may serve ex-oficio as the jury president’s representative). Landry’s office earlier this year issued a document that reiterated this violated the dual officeholding statute, which seems crystal clear on this matter as the Board is not a creation of the Jury.
Election year politics may impact whether Landry’s office or Marvin challenges the Jury on this. Landry’s juggling his run for governor plus his other duties, which recently have addressed larger matters, may preclude him from another sortie against this Bossier tendency. His solicitor general and ally, Republican Liz Murrill, is running to replace him where the same dynamics apply. And don’t look for Marvin to make a serious effort at this: no friend of Landry’s, his campaign account already has funneled thousands of dollars to Murrill’s no party opponent Third District Atty. John Belton (Berry also has contributed to Belton).
Fortunately, statute also permits any Louisiana citizen to file the summary process petition in the 26th District. Perhaps a plucky person won’t wait for election year politicking to end and make this appropriate challenge sooner rather than later.
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