Parish faces lawsuit seeking $52 million
Livingston Parish received a potentially devastating blow to its finances Monday when a three-judge panel denied the parish’s $59 million in claims against the Federal Emergency Management Agency for Hurricane Gustav cleanup costs.
Parish President Layton Ricks said he was shocked to learn the panel awarded the parish nothing.
“We have done everything I know to do, and everything possible, to try to get some satisfaction from the federal government, from this panel of judges, in order that we might get our citizens paid,” Ricks said. “And I’m just very, very disappointed where we stand right now because, right now, it was zero across the board.”
The parish’s legal team is exploring its options after the U.S. Civilian Board of Contract Appeals, in Washington, D.C., ruled that the parish already received more money from FEMA than could be justified by the parish’s documentation of the work.
The ruling, which followed a five-day hearing held in late May, is the final stop in the parish’s five-year quest to reverse the course of former Parish President Mike Grimmer’s decision in May 2009 to halt the cleanup and request an audit of the work.
By law, the panel’s decision is binding and cannot be appealed.
Ricks said he is disappointed in the outcome but is pleased the judges did not specifically find the parish’s contractors committed any fraud, waste or abuse of resources, as Grimmer and FEMA had alleged.
But the panel’s silence on the issue could work against the parish if it must move forward in defending itself against a lawsuit for $52 million — more than seven times the size of the parish’s general fund — that the debris removal contractor, International Equipment Distributors, filed against the parish in 2011 for unpaid work.
The contractor’s lawsuit has been on hold while the parish appealed, and then sought arbitration over, FEMA’s funding denials. Ricks said Monday he was unsure whether the lawsuit will regain momentum now that the panel has ruled.
It is also uncertain whether the parish will be forced to sue the monitoring firms — including Ricks’ former employer, Alvin Fairburn & Associates — that oversaw the cleanup work and were supposed to ensure only eligible work was performed.
The storm and its aftermath have pervaded parish politics, costing Grimmer and others their political careers, provoking lawsuits between contractors and against the parish and even leading, in part, to state criminal charges against one contractor who became a FEMA consultant.
While Ricks repeatedly has said he did not want the FEMA case to become a rematch of the contentious 2011 parish president’s race in which he ousted Grimmer, the current parish president made clear on Monday that the parish would not be in this predicament had it not been for Grimmer’s decision to halt the work.
During a late-afternoon news conference, Ricks said he is convinced there was confusion as to who, if anyone, was in charge in Livingston Parish when Gustav hit on Sept. 1, 2008, and during the cleanup afterward.
Characterizing the situation as chaotic and “a hodgepodge of decision-making,” Ricks said, “The buck always stops with the man at the top,” and during the storm and its immediate aftermath, that man was Grimmer.
The panel declined to engage in any such finger-pointing but noted there was “considerable controversy in Livingston Parish as to who is responsible for various matters — the parish government (and if so, the president, council or emergency preparedness director), any of the three Gravity Drainage Districts, the school district, the park district, the parish’s contractor, the parish’s monitor of the contractor’s operations and/or private land owners.”
The judges instead limited their opinion solely to whether FEMA owed the parish any additional funding.
In ruling against the parish, the panel said it was particularly persuaded by the testimony of arborist Scott Courtright, who examined a sample of the parish’s work removing hazardous leaning trees and hanging limbs and found only 5 percent met FEMA’s guidelines for reimbursement.
The parish had sought $14.1 million in additional funding for that work on the grounds that its primary monitoring firm, Professional Engineering Consultants, sampled the work and found 89 percent met agency guidelines. FEMA’s policy is to pay 100 percent of the costs if at least 80 percent of the work is found to be eligible, the parish argued.
LSU professor Richard Keim, a forest hydrologist, also helped sway the judges to FEMA’s side, the panel said.
Keim testified that, while Gustav increased the amount of debris in the parish’s waterways, the flooding effect of that debris was minimal.
The panel also found that the parish cleared nearly every waterway from bank to bank, rather than taking only the storm-generated debris as FEMA required.
The panel noted that only two other parishes in the state sought reimbursement for waterway debris removal following the 2008 storm. Those two parishes, which the judges did not name, claimed only $300,000 and $5 million in waterway work, compared to Livingston’s claim of $44 million.
The judges said that while they did not find FEMA’s Tiger Team surveys credible, the parish’s “utter failure” to properly document its claims left the panel no choice but to deny all funding.
“To the extent that the parish might be due some grant money for removing hurricane-generated debris from waterways, we believe that the sum has already been amply covered by FEMA’s overpayment for removal of leaner and hanger debris,” the panel stated in its ruling.
Ricks said the parish’s legal team at Baker Hostetler in Washington, D.C., is continuing to explore any possible avenues of recourse. He declined to go into details, except to say he has reached out to the parish’s congressional delegation.
“We’re not closing the book yet until the final bell rings, and in my opinion and in my mind, it has not rung yet,” Ricks said.
The Parish Council will hold an executive session on the matter at its next regularly scheduled meeting, July 10.
Follow Heidi R. Kinchen on Twitter @HeidiRKinchen.