Discussions of the legal and technical aspects of the flooding of Jefferson Parish following Hurricane Katrina are best left to legal scholars and expert engineers. I am neither and a post on those aspects is a subject for another day. For lack of a better word, I’m a behaviorist – and it is from that perspective this post examines the event and those that followed.
Among the most basic of human needs are a sense of belonging and acceptance. If and how those needs are met is determined in large part by our environment; and, in some fashion, we’ve all learned that we will be more readily accepted if “when in Rome” we “do as the Romans do”.
Although half-a-world away, shortly after Hurricane Katrina, London’s Telegraph described the “Rome” that is home to Jefferson Parish:
Congressman Billy Tauzin once said of his state: “One half of Louisiana is under water and the other half is under indictment.” Last week, four fifths of New Orleans was under water and the other four fifths should be under indictment – which is the kind of arithmetic the state’s deeply entrenched kleptocrat political culture will have no trouble making add up.
It was in the context of this “kleptocratic” environment that some did their arithmetic before the storm; figured the flooding of Jefferson Parish would result in a massive money-making opportunity; and decided too much was at stake to rely on nature alone.
One early estimate of loss from the resulting flooding of the Parish was $3-5 billion. However, we’re only beginning to understand how much money there was to be made; but, more importantly, we’re also beginning to understand how.
Attached to the roots of the “deeply entrenched kleptocrat political culture” is the rather charming custom of lagniappe. In its bastardized form “give me something for lagniappe” becomes a kickback to the “in crowd”.
In the “kleptocratic political culture” surrounding Jefferson Parish government, getting “in” is likely much easier than getting “out” – unless you were among those Jefferson Parish President Aaron Broussard literally helped out before Hurricane Katrina:
Parish officials have said that 200 pump operators were evacuated to Washington Parish on August 28th, the day before the storm, and returned the following day at 7 p-m. Broussard has said that leaving the operators at their stations during a Category Four or Five hurricane amounts to a “death sentence”.
Unlike the Parish with its pumps off, Broussard’s self-reported “humanitarian gesture” [sic] didn’t hold water:
Under emergency powers granted to the Parish President, Broussard appropriated the Meadowcrest hospital to use as a hotel for parish employees.
While not the “safe house” federal regulations required, housing the pump operators in the hotel was certainly a better option than losing billions to property damage from the flooding of Jefferson Parish with the pumps off.
Hell was waiting in the high water.
The deeper the water and the longer it stood, the greater the damage.
Aaron Broussard was a kleptocratic “rainmaker“.
Money rained on contractors who gutted the flooded property and those who hauled and dumped the trash. Money rained on those contracted to repair and rebuild – and when property owners could afford neither option, money rained on those who bought property at bargain-basement prices and resold at a profit.
Lagniappe came in every color of the rainbow. The devil came in the details.
SLABBED looked at some of those details in CLUE – the River Birch version and now follows the devil in an examination of of the lawsuit known as Maurice Dela Houssaye v Jefferson Parish, Aaron Broussard and American Alternative Insurance Corporation consolidated with Gayle T. Bennett, et al. vs. Board of Commissioners for the East Jefferson Levee District, AKA “the pump flood case”. (Docket here h/t “anon” SLABBED reader)
The suit was filed in October 2005 and in 2006, after all 16 judges in the 24th District recused themselves, the Louisiana State Supreme Court appointed Judge John Peytavin, a retired judge from Lutcher to handle the case. Although the name Peytavin was in the details of Jefferson Parish’s “contract” [sic] with River Birch, save a brief comment last September, there was no suggestion of controversy over the Judge’s appointment until January 14, 2011 – the date the Parish Council passed a Resolution awarding a contract to the Judge’s son:
The Parish Attorney is hereby authorized to negotiate a contract with Michael D. Peytavin, and the law firm of Gaudry, Ranson, Higgins & Gremillion, L.L.C., for the purpose of assisting the Parish Attorney in negotiating a contract with River Birch, Inc., for operation of a landfill.
Some claim the contract is creates a conflict of interest and gives cause for the Judge to recuse. However, after researching the matter, I’m not certain the “cause” is there.
Search “Michael Peytavin” and you find a history of his representation of clients filing suit against (not for) Jefferson Parish. The earliest case I found was dated 1998. The most recent, and by far the most interesting, Willow, Incorporated v The Jefferson Parish Council and the Parish of Jefferson (LA 5th Circuit Court of Appeals, April 25, 2006), involved a land-use decision of the Parish Council, indicating some measure of merit to the claim stated in the January Resolution:
Michael D. Peytavin, and the law firm of Gaudry, Ranson, Higgins & Gremillion, L.L.C., have such expertise in the legal issues presented in this matter
Search the “pump flood” case against Broussard and you find article after article reporting Judge Peytavin has ruled against Broussard and/or the Parish. Rulings favor flood suit plaintiffs (March 6, 2008) is one example:
Jefferson Parish President Aaron Broussard’s statements under oath that he took no part in the decision to evacuate parish drainage workers before Hurricane Katrina are not enough evidence to free him from a lawsuit filed by residents blaming him for flood damage, a state judge ruled Wednesday.
Ad hoc Judge John Peytavin delivered that and two other preliminary victories to plaintiffs seeking class action status in the hurricane litigation. He ruled that one insurer, meanwhile, successfully argued that its policy did not cover the damages alleged in the suit…
Peytavin issued a separate judgment denying a defense request to dismiss the parish and its consolidated drainage district from liability because state law gives political subdivisions immunity from damage resulting from their actions to prepare for or respond to disasters. The judge gave weight to the plaintiffs’ argument that parish attorneys failed to prove that all issues of fact were uncontested….
A day later (March 7, 2008) La. Judge Won’t Remove Broussard, Jeff Parish from Flood Lawsuit appeared in the Insurance Journal:
A state judge in Louisiana has refused to remove Jefferson Parish and its president from a lawsuit filed by parish residents over flooding that followed Hurricane Katrina.
At issue in the lawsuit is the decision to evacuate pump station operators before the storm hit in August 2005.
In January, defense attorneys argued that Parish President Aaron Broussard, the parish and its drainage districts should be removed from the suit. They offered a two-page affidavit from Broussard in which he said he had no knowledge of or responsibility for evacuating pump station operators just before the storm hit.
“The parish’s former emergency director, Walter Maestri” refuted Broussard’s claim in La. parish president still facing lawsuits over Katrina (April 2008):
Walter Maestri, who retired about a year after Katrina, told victims’ lawyers this month that he hadn’t discussed evacuation of pump operators with Broussard on Aug. 28, 2005, the eve of the storm. But he contradicted Broussard’s claim of ignorance of the doomsday plan.
Maestri, who drafted the original plan in 1998, revised the document in 2005 to identify a new hurricane shelter for parish employees. Maestri said Broussard sought the change through a deputy, who quoted the parish president as saying he “wanted no one to die on his watch.”
Plaintiffs win a round in suits against Jefferson Parish over Katrina flooding (May 26, 2009) reports the Louisiana State Supreme Court decision on the appeal of Judge Peytavin’s March 2008 decision “denying a defense request to dismiss the parish and its consolidated drainage district from liability”:
The lawsuits against Jefferson Parish over widespread flooding after Hurricane Katrina are inching forward again now that the Louisiana Supreme Court has decided the government may be held responsible for its storm planning…The Supreme Court upheld the March decision of a state appeals court that had dubbed the government immune from liability for any decisions made at the height of the Katrina emergency. But a faulty “doomsday policy,” even if drafted under a former administration, was another matter, both courts seemed to say.
The case now returns to 24th Judicial District Court in Gretna and substitute Judge John Peytavin’s courtroom. Encouraged by the Supreme Court’s ruling, plaintiffs’ attorney Carroll Rogers said Tuesday she will apply for a class-action status to band numerous property owners together in a unified suit against the government.
Consistent with the outcome of the appeal, with the case back in his court, Peytavin “later ruled that Broussard couldn’t be sued for negligence, but left open the possibility that he could be found liable if plaintiffs can show he acted with “willful misconduct” during the emergency. In March 2009, a state appeals court ruled that Jefferson Parish and its drainage district could not be held responsible for decisions made as danger loomed. However that same ruling also found that the government could be liable for any mistakes written into the disaster policy that the administration followed.”
Judge Peytavin made “Hot News” (September 22, 2010) when he granted the lawsuit class action status:
Following the plaintiff attorneys’ suggestion, Peytavin divided the thousands of potential plaintiffs into two subcategories: one for properties in the parish on each side of the Mississippi River. The exceptions are properties in Old Jefferson and Old Metairie that languished in water let loose by a breach in the 17th Street Canal. The lawsuits blame the flood damage on a decision within Broussard’s administration to evacuate 220 pump operators to Washington Parish as the major storm approached the Gulf Coast.
Peytavin ruled Wednesday that enough property owners had claimed damage to make it impractical to try them individually. He also ruled that the claims were similar enough that a few could represent the rest in court as typical examples. However, he chose to exclude communities around Hoey’s Basin because that flooding did not necessarily come from the evacuation of pump operators.
Despite the evidence – his son’s history of filing suit against the Parish, including the relevant Willow case, and the Judge’s pro-plaintiffs decisions – the value I place on reader comment is such that I researched Louisiana law on recusal and found no cause for either the mandatory or voluntary recusal of Judge Peytavin.
What I did find of interest came via email from a reader – the Expert Report of Paul D. Kuhlmeier, Ph.D., P.E., PG, BS (BS added after reading the report) dated October 29, 2010, over a month after Judge Peytavin’s decision making the case a class action. The report was prepared “on behalf of the State of Louisiana, Jefferson Parish, and Aaron Broussard”.
The devil is in the details of the hell that was waiting for high water – and five plus years after Hurricane Katrina is too late for the guilty to start bailing out of anything other than jail.