No boundaries: LCG may have violated charter in spoil banks land purchase

City Council members Pat Lewis, left, and Andy Naquin and Nanette Cook, seated, with Mayor-President Josh Guillory and City-Parish Attorney Greg Logan (right) at a June 2021 meeting.
City Council members Pat Lewis, left, and Andy Naquin and Nanette Cook, seated, with Mayor-President Josh Guillory and City-Parish Attorney Greg Logan (right) at a June 2021 meeting. The City Council plans to develop a fee schedule for public records. Photo by Travis Gauthier

Mayor-President Josh Guillory texted an attaboy to Public Works Director Chad Nepveaux in the early morning hours of Feb. 22. “Nice job!!”

“Dirt is gone. Removing trees,” Nepveaux had texted his boss just a few minutes earlier, at 7:16 a.m., updating him on removing spoil bank levees on the St. Martin Parish side of the Vermilion River. “Dismantling one barge at this time,” came just before 9 a.m. “Pulling out barges,” an hour later.

“You, my awesome teammate, helped a lot of people over the last 24 hours. Thousands of people will sleep well tonight and not even know the greatness that you delivered on their behalf and to their direct protection and benefit. Cool shit,” Guillory wrote at 10:23 p.m. “Easy win,” Nepveaux responded.

Records obtained by Straight News Online show that Guillory also exchanged congratulatory texts with Rigid Constructors CEO Cody Fortier, whose firm had pulled the project off overnight as part of a no-bid contract. “All dirt and trees across on Chappuis [property],” Fortier wrote at 7:29 p.m. “Barges removed, river open.”

The celebration may have been premature.

As of this week, St. Martin Parish is seeking restoration of the levee LCG removed in what it alleges was a “furtive” and unlawful project. The U.S. Army Corps of Engineers, which has jurisdiction on the Vermilion River, has halted further action while an investigation is ongoing. The U.S. Environmental Protection Agency is in the loop.

M-P Guillory and his Public Works director patted themselves on the back Feb. 22 as the secretive spoil banks project wrapped up. View the full exchange here.

A success in LCG’s eyes, the overnight operation may have violated state law, federal law, a St. Martin Parish ordinance and, it now seems, Lafayette’s Home Rule Charter.

LCG’s purchase of St. Martin Parish land to execute the spoil banks project appears to have lacked council authorization as required by charter. That could arm St. Martin’s suit, filed last week, and provide cause of action for one of the property’s landowners to nullify the land sale.

Lafayette Consolidated Government’s charter is clear: One of the actions requiring an ordinance is the acquisition of “real property.” On Feb. 21, just hours before Rigid loaded barges into the Vermilion River, the city of Lafayette bought a two-thirds interest in property along Cypress Island Swamp.

But the Guillory administration signed the purchase agreement citing an ordinance that did not explicitly authorize the transaction — despite City-Parish Attorney Greg Logan’s arguments to the contrary.

This apparent charter violation joins a long list of problems associated with what could amount to a costly legal boondoggle in that neighboring parish.

The failure to involve the councils fits a pattern the administration followed throughout this project: LCG hid its motives from St. Martin Parish, withdrew an application for a federal permit, avoided a public bid process in awarding the contract, conducted the work under the cover of darkness and held back on filing the land sale in the St. Martin Parish Courthouse for an unusually lengthy 16 days — two weeks after the dirt was gone.

The secretive scheme to remove old spoil levees from the St. Martin Parish side of the Vermilion River and transport the dirt across the bayou to the Lafayette side has been marred by several missteps. To boot, independent analyses of the land’s appraisal documents reveal that LCG may have illegally overpaid for the property.

In late February, Rigid Constructors loaded barges into the Vermilion River, blocking navigation, to remove spoil bank levees on land LCG partially purchased in St. Martin Parish. The dirt was then transferred to the Lafayette side of the river to create a new levee. Image provided by LCG

And this project is only one of dozens in Guillory’s $110 million initiative to address the parish’s pressing flooding problems. Outside of the spoil banks controversy, LCG has also lost two major court cases over its seizure of private property for detention ponds.

LCG had already left itself vulnerable to litigation on the spoil banks project by excluding one of the landowners, homebuilder Ed Francez, from the property deal.

Francez, who owns a third of the land and was not notified of the transaction, says asking a court to nullify the sale is one option he’s considering. “I don’t like being stolen from,” Francez says. “I don’t care who does it. There’s a lot of reasons to nullify it, and I just need one of them.”

What is LCG’s position?

LCG representatives claim two ordinances authorized the acquisition: a 2021 budget amendment appropriating city dollars for the project (the only ordinance listed in the sales documents) and a 2020 joint ordinance granting the mayor-president broad authority to sign agreements on drainage projects throughout Lafayette Parish. Greg Logan, LCG’s chief legal officer, further claimed the mayor-president was acting within authority provided to him by the charter.

Neither ordinance, however, explicitly mentions purchasing of property in St. Martin Parish. Nor does the charter grant the mayor-president that authority — without legislative consent.

Logan offered this explanation by text after his citation of those two ordinances was challenged by this reporter:

At the risk of being misquoted or quoted out-of-context by a blogger:

Home Rule Charter Section 3-09 (A)(5), the land was specifically identified in the budget amendment.

Furthermore, there is no limitation of purchasing or expropriating property within the geographical limits of the political subdivision, if said property purchase is for the benefit of that political subdivision. [A]uthority in the law.

Now, I will “sign off” and block your number as I have more important things to tend to and I would like to leave my office at some decent time tonight.

The city ordinance Logan references, CO-062-2021, is included in sales documents filed after the levee was removed; and the city of Lafayette is the actual buyer. Specifically, the instrument is a budget amendment appropriating funding to the spoil banks project. However, it does not authorize the acquisition of any property. Nor is the land “specifically identified” in the ordinance, as Logan claims. The ordinance increases the use of fund balances in two funds by $5.85 million, $3.85 million of which is for the project “Bayou Vermilion Spoil Bank Removal.”

Both acquisitions, from two of the three landowners, were signed by Mayor-President Guillory.

City Council Chairwoman Nanette Cook, who voted to approve the city ordinance, which passed unanimously, says she did not think it had anything to do with buying property in St. Martin Parish.

“He didn’t put [the property purchase] in the ordinance,” she says. “What we thought we were doing was putting money in for the spoil banks project, period. We had no details of purchase of any properties in St. Martin Parish. We assumed we were on the same page [with St. Martin Parish.]”

City Councilman Andy Naquin declined to comment, citing pending litigation. Council members Liz Hebert, Glenn Lazard and Pat Lewis could not be reached for comment.

“All that city ordinance does, in my reading, is fund the project,” a retired LCG official tells Straight News Online. “Authorizing the funding of a project is different from authorizing the acquisition of real property, which must be done by the council [or councils] by ordinance.”

LCG’s purchases and seizure of other properties for drainage projects during the Guillory administration corroborate that view.

Straight News Online reviewed seven property acquisitions for the Coulee Ile des Cannes detention ponds, part of LCG’s overarching Bayou Vermilion Flood Control Project, and found that LCG properly included the relevant public necessity ordinance specifically authorizing those purchases, PO-035-2021, (though on at least two occasions listed the wrong digits in the ordinance number). Similarly specific instruments were used for the Homewood detention ponds, also part of Bayou Vermilion Flood Control, and the Lake Farm Road pond. Both of those expropriations were ruled unlawful in state court.

Along those lines, the separate joint ordinance Logan cites, JO-080-2020, does authorize the mayor-president to sign agreements and buy land. The scope is broad, creating a single project — the “Stormwater Management Project” — that spans every major drainage channel criss-crossing Lafayette.

Crucially, however, the geographic limit of the project is specific. To set the project’s boundaries, the ordinance references the official drainage map of Lafayette Parish.

“The proposed project limits are shown on the attached exhibit,” the ordinance reads.

Those limits are reinforced in messaging delivered by the administration to the council. In his accompanying memo summarizing the joint ordinance, Public Works Director Nepveaux defines the project “along certain channels within the City of Lafayette and the unincorporated areas of Lafayette Parish.” The letter isn’t part of the ordinance, but it clearly guides the councils’ understanding of the legislation.

Finally, Logan cites the mayor-president’s powers outlined in Lafayette’s Home Rule Charter, implying that his authority to execute certain agreements extends to buying property. But that section does not empower the mayor-president to buy land on LCG’s behalf. That power is left to the councils.

It’s clear the administration intended for the joint ordinance to give it broad power to initiate drainage projects. And it’s consistent with the Guillory administration’s mandate to cut red tape and move quickly. But its scope fails to reach across the banks of the Vermilion River.

In fact, the two councils amended the Stormwater Management Project ordinance in September 2021 to specifically authorize acquisition of right of way on the Lafayette side of the river, on land related to the spoil banks project. Again, the amended joint ordinance reiterates that the scope of the project is confined to Lafayette Parish.

“You have some cleverly worded stuff [in the joint 2020 ordinance] where Josh can go and acquire whatever property he needs based on good engineering standards, but even the Public Works’ director’s disclosure says it is limited to projects in the city of Lafayette or the unincorporated areas of the parish,” the retired LCG official says.

“I think it’s a smoking gun, because when you read it all together, you’re still missing the ordinance that says you can go buy this property in St. Martin Parish.”

Lacking authority further endangers LCG’s case in pending litigation. St. Martin Parish’s suit rests in large part on making the case that LCG flouted the law. And without legal authorization, landowner Francez could seek to nullify the transaction in court. (It’s unclear whether other private citizens would have standing.)

“St. Martin Parish has always contended LCG did not follow applicable law, including not obtaining the proper permits, and it looks like now not complying with its own charter,” says Alexandria-based attorney Steven Oxenhandler, who represents St. Martin Parish in the ongoing civil litigation, a portion of which remains in federal court.

Oxenhandler agrees this latest potential fumble might be grounds for nullifying the sale.

Concerned that LCG’s actions could adversely affect residents of Cypress Island, last week St. Martin Parish sued LCG, asking a judge in its own jurisdiction to force Lafayette to rebuild the spoil banks. LCG has maintained that the project won’t harm St. Martin Parish residents, claiming the resistance is political in nature.

At one time, the two governments were in conversation on the project. That cooperation dissolved and turned to mistrust when Guillory pursued the project on his own.

City Council members are concerned about mounting legal exposure. On June 7, Cook put forth more than two dozen questions about drainage projects, a number of which are directly related to the levee work, and asked for responses within two weeks.

Guillory instead punted on the questions in a June 24 letter, claiming LCG’s staff was too busy to address them; he suggested both councils instead hire their existing auditor. Last week, after Guillory accused council members of playing politics, the City Council rebuffed the offer to bring the Parish Council into the inquiry. It plans to hire a different firm to conduct an audit of the projects, sources close to City Council members tell Straight News Online.

Guillory has tried to dismiss concerns about the mounting litigation, but LCG’s legal status got even more precarious this week. In a federal court filing Wednesday, the Corps lambasted LCG’s legal strategy and aspects of the project while asserting its jurisdiction over the project, saying in a footnote that it has also called in the EPA to investigate “flagrant, willfull violations.” Put together, the suits could amount to tens of millions in dollars, including federal coronavirus relief, spent on projects left incomplete or totally undone. St. Martin Parish’s suit wants LCG “to restore, replace and reconstruct” the spoil levees at LCG’s expense.

“It’s further evidence of complete disregard for the law,” Oxenhandler says of the apparent lack of council authorization. “We will flesh all this out during the full litigation, including depositions and production of documents. It needs to be tried.”