Hopefully, a bit better legal sense from Louisiana’s judiciary finally will make the right call on a case involving separation of powers and conflict of interest in northwest Louisiana, but that tussle only illustrates a larger problem.
Predictably, the case centers on that bastion of unaccountable government, the Cypress-Black Bayou Recreation and Water Conservation District. It runs – badly, given the near-chronic deficits produced – the recreation area of the same name in Bossier Parish and regulates land use around the bodies of water and the water itself. Girded with a dedicated property tax – and was the only government body in Bossier Parish last year to increase that rate – citizens who hold approval power over that have no direct voice in governing use of that money. The five commissioners receive appointments from various local governments.
One of those commissioners, Robert Berry there by the grace of the Bossier Parish Police Jury until mid-2023, also serves as its executive director and pulls down a six-figure salary as a result, which represented last year almost seven percent of the entire nearly $1.9 million budget. That he has both offices has drawn the scrutiny of Republican Atty. Gen. Jeff Landry.
Landry argues that R.S. 42:64 prohibits this dual officeholding, which the statute’s wording supports. It reads, “no other offices or employments shall be held by the same person in combination if … the incumbent of one of the offices, whether or not in conjunction with fellow officers, or employment has the power to appoint or remove the incumbent of the other” (emphasis mine). Since commissioners appoint and remove the executive director, Berry having both positions obviously violates the law.
Yet two district court judges have ruled otherwise, but it really only was Republican 26th District Judge Charles Jacobs who set the tone. Prompted by complaints from citizens, many whose land use the law subjects to District jurisdiction, Landry said to Berry that he was in violation of the law by continuing to serve in both posts, and followed up with a suit when Berry continued in both. District Attorney Schuyler Marvin already had, sending the case to Jacobs. Landry’s office later intervened at the last minute in that initial suit, as it didn’t think Marvin would present the complete case against Berry.
Perhaps Marvin filed sympathetically for Berry, to try to get a ruling in the latter’s favor, seeing as he kept Landry’s office in the dark about the trial’s date. Regardless of motive, that’s how it worked out, as court minutes indicate Jacobs decided that as Berry didn’t have the sole authority as a board member to remove himself as executive director, the law didn’t apply, despite that the law exactly specified that it did apply. A couple of weeks later, with Landry’s suit Republican Judge Charles Smith essentially ruled the same, agreeing the case didn’t differ from the previous. This sent Landry to the Second Circuit with his case, with his office terming the district rulings as exercises in judicial activism.
Of course, Berry could make his legal problems go away simply by resigning from the board, which he joined prior to it naming his executive director, but that likely wouldn’t siphon the pressure from landowners angry at escalating fees to boost revenues and voters (who turned down a property tax hike for it in 2019) nonplussed at the district’s poor financial conditions. A petition with several hundred signatures went before the Jury late last year asking it to replace him, even though state law makes no explicit mention about removal of a Board member (it does say vacancies can be filled for an “other cause,” but in any event for vacancies the Board, not the Jury, would decide on a replacement).
Perhaps feeling the heat, Berry and the Board recently negotiated a deal for sale of water for hydraulic fracturing purposes – with water use being the major foreseen activity of the district at its formation in 1958. With fracking having gone on in the parish for about 15 years, why water sales didn’t happen previous to publicity about the district’s deteriorated financial position is a good question.
Even if Landry has to get higher courts to order the right thing regarding Berry’s dual officeholding, legislators should make any of several changes to rein in the agency’s lack of accountability. The much larger Sabine River Authority, which also sells water and has recreational facilities, doesn’t even have the power to tax and its members serve at the pleasure of the governor (and its executive director makes about the same base salary as does Berry, even though the SRA’s budget is nine times the District’s). Revising state laws to remove the District’s status as a state budget unit and its taxing authority would sharpen its concentration on water sales and a realistic scale of park operation. Appointing agencies also should acquire the power to replace their designees at will.
However, a complete restructuring provides the best solution. Legislators could dissolve the agency, either letting Bossier Parish or the state pick up park operations (or close it) and putting water sales in with other bodies of water overseen by the Department of Natural Resources. This could reduce or eliminate the regulatory footprint over several hundred properties abutting the shoreline of the district’s present boundaries and relieve taxpayers of a burden offset by only one water sale in over six decades while having to pay to get into a park that few visit which already swallows their tax dollars.
No matter what happens with the court case, scaling back or eliminating the District best serves taxpayer interests.