An interesting civil trial is transpiring at the 19th Judicial District Court. Though estimates vary, if the plaintiffs prevail, about one taxpayer in five in the Greater Baton Rouge area may eventually wind up with a surprise check in the mail.
The trial involves a group of taxpayers, now represented as a class, who have sued the Amite River Basin Commission (ARBC) over what they claim are vastly overpaid property taxes covering construction of the Comite River Diversion Canal. The project was originally envisioned after the massive 1983 flood which resulted in significant backwater flooding long after rains had stopped. The concept behind the project involves providing a sort of relief valve (the Canal) to divert water from the Comite River into the Mississippi River. By lowering the water level of the Comite River, water levels would also be lowered in the Amite River basin in flood-prone areas such as Port Vincent and French Settlement.
What is in dispute is the amount of funding for which the ARBC (through local property owners) is responsible. The original estimate of the project’s construction costs was approximately $120 million (the current estimate is $199 million). Of that $120 million, the Army Corps of Engineers (through the Federal government) was to be responsible for 70% of the construction costs, or $84 million. The remaining $36 million cost was originally designated to be $30 million to the State of Louisiana, and $6 million to the ARBC.
A sidebar to the whole affair is how a Baton Rouge lawyer is legally or ethically able to represent ARBC when he also served as the plaintiff attorney in litigation against the state that could ultimately cost the state from $60 million to $70 million.
Plaintiffs’ attorneys have indicated that $6 million was the full extent of the construction costs for which the ARBC was responsible. To date, by way of a 3-mill property tax approved by voters in the District in 2000, combined with a renewal (at 2.65 mills) of that tax in 2010, plaintiff attorneys say about $24.5 million has been collected to date. The suit seeks a refund of the alleged $18.5 million overpayment.
At various stages in the trial, plaintiff attorneys have accused ARBC Executive Director Deitmar Rietschier of financial mismanagement and voter deception in order to “keep a project alive that is on life support.”
The attorneys have argued that Rietschier has an ulterior motive for over-collecting on the tax in order to fund his own $93,000+ annual salary along with his executive secretary’s $38,000 salary. The board’s executive secretary, Toni Guitrau, also happens to be the Mayor of the Livingston Parish Village of French Settlement.
So, basically, the trial boils down to the claim that taxpayers of the district have been tricked into paying around $1.1 million in salaries for Rietschier and Guitrau during a period for which no funding has been appropriated for the project’s continued construction.
Plaintiff attorney Steve Irving argued that it is virtually impossible to accurately estimate the final cost of the project or if, it may even be completed.
Defense attorney Larry Bankston says there never was any intent to cap the ARBC’s contribution to construction costs at $6 million. He argues that the Canal project remains viable and is fully ongoing. He indicated that he has eight more witnesses to call.
Bankston’s roles as both plaintiff and defense attorney in cases involving the state would appear to pose a conflict of interests. Currently, he is:
- Legal counsel to the State Auctioneer Licensing Board under a $25,000 contract;
- Defense attorney for ARBC in its ongoing litigation over the overpayment of taxes to that board;
- Plaintiff attorney in ongoing litigation against the Louisiana Department of Agriculture, and the state’s Rice Promotion Board and Rice Research Board over claims of excessive assessments against the state’s rice farmers.
Employing the doctrine that “the state is the state is the state,” it would appear that Bankston may have a conflict of interests under the code of ethics which governs attorney representation.
But as we discovered years ago, nothing is ever cut and dried in the legal world. And it’s obvious those in charge of attorney ethics or either ignorant of the subject or protective of their peers—or both.
And so it is with this question. We contacted a number of organizations, including the Attorney Disciplinary Board, the Louisiana Civil Justice Center, and the State Bar Ethics Council and each one punted. Eric K. Barefield of the State Bar Association’s Ethics Council did finally respond to our email question about the propriety of working both sides of Litigation Street but his answer did little to shed light on the issue:
“Thank you for your inquiry. The Louisiana State Bar Association’s Ethics Advisory Service is designed to provide eligible Louisiana-licensed lawyers with informal, non-binding advice regarding their own prospective conduct and/or ethical dilemmas under the Louisiana Rules of Professional Conduct (the “LRPC”). According to limitations set by the Supreme Court of Louisiana, we are not permitted to evaluate contemplated disciplinary complaints, to serve as the catalyst for potential complaints or even to comment on the conduct of lawyers other than that of the requesting lawyer.
“As such, regrettably, we are not permitted to help you evaluate whether the lawyer in your scenario has or may be violating the LRPC nor are we permitted to give you legal advice on matters such as those contained in your e-mail.
“In addition to the foregoing, if you are concerned about protecting and/or asserting your rights and interests in this matter, perhaps you should strongly consider consulting another lawyer as soon as possible with regard to getting an evaluation of your facts and a legal opinion about your rights, interests and options. Regrettably, no one on the staff at the LSBA is permitted to offer legal assistance and/or legal advice.”
That rendition of the Bureaucratic Shuffle would easily get a “10” rating on Dancing with the Stars.
Bankston, you may remember, is a former staff attorney for the Louisiana Attorney General’s office, was assistant parish attorney for East Baton Rouge Parish and a member of the Baton Rouge City-Parish Commission before his 1987 election to the Louisiana State Senate.
In 1994, while serving as chairman of the Senate Judiciary Committee, Bankston met in his law office with Fred Goodson, owner of a Slidell video poker truck stop. The FBI later said Bankston and Goodson discussed a plan to manipulate the legislative process in order to protect the interests of video poker companies in exchange for providing key legislators secret financial interests in video poker truck stops.
Bankston was subsequently indicted and convicted on two racketeering counts, one of which was a scheme whereby Goodson would pay Bankston “rent” of $1,555 per month for “non-use” of Bankston’s beachfront condo in Gulf Shores, Alabama—a bribe, according to prosecutors.
Bankston was sentenced to 41 months in prison in 1997 and ordered to pay a $20,000 fine.
Released on Nov. 6, 2000, Bankston was subsequently disbarred by the Louisiana Supreme Court on Mar. 9, 2002, retroactive to Nov. 19, 1997, but was re-admitted to practice law on Feb. 5, 2004.
So, now he represents two state boards and is suing two others and a state agency.
And there apparently is no one who can—or will—call a foul in this game.