Lawsuit alleges Port of South Louisiana violated state sunshine law
6th February 2023 · 0 Comments
By Joshua Rosenberg
The Lens
The Port of South Louisiana ran afoul of the state’s open meetings law last year by conducting public business relating to a proposed grain elevator project in St. John the Baptist Parish without the public’s awareness or opportunity for input, according to a lawsuit filed by a local nonprofit.
The port’s executive director and commissioners convened in secret, by email, ahead of a public meeting in which the port would go on to approve a cooperative endeavor agreement (CEA) with the grain elevator company, Greenfield Louisiana LLC, according to the suit, which was the last week in January.
Attorneys for the Descendants Project argue that when the port’s commissioners voted to approve the CEA at their public meeting in April, it was “merely a pro forma reenactment of the decision” that had already been made via email.
The CEA would save Greenfield more than $200 million in ad valorem taxes, or property taxes, over its 30-year lifespan, according to an analysis conducted by the group Together Louisiana — during which time the port would collect nearly $7 million in administrative fees.
“The Port of South Louisiana is a powerful entity that has gone unchecked for too long,” Joy Banner, co-founder of the Descendants Project, said in a press statement released by the law firm Most & Associates, which is representing the group.
“Decisions about our lives, our homes, and our communities are being made for us and about us, so why shouldn’t those decisions include us?” she said in the statement. “The lengths that the Port will go through to keep their operations off the record and away from public scrutiny is unconstitutional and a threat to public safety.”
Greenfield bought the tract of land at issue for $40 million in 2021. The company plans to build a large grain elevator on the property, worth more than $400 million, that would include more than 50 grain silos, a conveyor belt, railroad infrastructure and a dock. A study produced by the economic development agency Greater New Orleans, Inc., found that the grain elevator project would produce, among other things, 100 direct jobs.
The Descendants Project, and the Banner sisters, are engaged in litigation opposing the grain elevator’s construction.
Greenfield declined to comment for this story, with a media representative saying they would defer to the port. Micah Cormier, communications director for the port, provided the following statement to The Lens.
“The Port of South Louisiana Board of Commissioners has always strictly adhered to the Open Meetings Law. At its April, 2022 Commission meeting, the Board of Commissioners complied with the Open Meetings Law,” Cormier wrote.
“Frankly, the Petition is ludicrous, has no basis in law or fact, and reeks of rank supposition, if not fantasy,” Comirer wrote. “This obviously is another attempt to baselessly impugn the Greenfield Grain Elevator project, even though that project, if implemented, would provide hundreds of the best-paying, safe jobs in St. John Parish, and improve its community and schools, especially on the underdeveloped west bank of the river.”
But for his part, Steven Procopio, president of the Public Affairs Research Council of Louisiana — a private, nonprofit research organization — was not nearly as dismissive of the petition.
“Regardless of the case’s outcome, it is clear that the port should have been more forthright with the public and other stakeholders to comply with the spirit and intent of Louisiana’s open meetings law,” Procopio wrote in a statement provided to The Lens. “Transparency isn’t just a legal requirement; it is vital to building trust.”
PILOTs and property taxes
The St. John Parish Sheriff’s Office, which acts as the parish’s tax collector, also signed the CEA. Under the agreement — known as a payment in lieu of taxes (PILOT) deal — Greenfield agreed to transfer the land where it intends to build the grain elevator to the port, which is a public agency not subject to property taxes.
Instead of paying taxes based on the property’s assessment, Greenfield agreed to furnish a $4 million one-time payment by the end of 2022, followed by $2 million annual payments beginning in 2025 or when the grain elevator goes into operation, whichever comes first.
William Most, of Most & Associates, previously sent a letter to Lucien Gauff, the St. John Parish assessor, arguing that the CEA is essentially a “simulation,” and does not constitute a bona fide transfer of property. Most asked Gauff to reconsider the legality of the framework with his legal advisors, and whether, as the parish’s assessor, he would accept the property’s status as non-taxable.
Gauff previously told The Lens that he believed the CEA could have secured more money for the parish’s taxing bodies — to the tune of an extra $1 million per year. Still, he said, the deal’s overall impact would be a net positive for the community.
In an email sent to Most in December, on which The Lens was carbon copied, Brian Eddington, attorney at the Louisiana Assessors’ Association, who’s representing Gauff, said that, in light of the binding precedent set in the case Pine Prairie Energy Center, LLC v Soileau, “Gauff will have no legal basis to treat the Greenfield property as taxable upon its transfer to the port authority absent contrary guidance from a court.”
Emails detail pre-meeting conversations
In an email on March 17, Paul Matthews, the port’s Chief Executive Officer, recommended to D. Paul Robichaux, Vice President of the Board of Commissioners, that the port approve the deal with Greenfield.
On March 21, Port Commis-sioner Joey Murray, sent an email in which Robichaux’ personal email address and Matthews’ port email address were carbon copied, to ask why an excel spreadsheet would “compare ad valorem taxes with and without” the Industrial Ad Valorem Tax Exemption Program (ITEP). Grain elevators wouldn’t ordinarily qualify for ITEP, he wrote.
“That makes a big difference in comparisons that the commission would need to see to make an informed decision,” Murray wrote. Murray was the only commissioner to vote against the CEA at the April 6 meeting.
Louisiana offers a number of incentives to attract businesses to operate in the state, including ITEP — which is, by far, the state’s largest tax abatement program.
On March 22, Matthews sent an email to all of the board’s commissioners explaining why he included ITEP-related data in the document. Robichaux, later on March 22, responded to the same email chain to say, addressing Matthews, “I trust you have all matters in order and in place to proceed with successful passage of this [PILOT] at our April 6 meeting.”
Louisiana’s open meetings law is enshrined in the state’s code under Title 42 of its revised statutes.
Section 12 states that “It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of this Chapter shall be construed liberally.”
In this case, the public was shut out from the port’s private discussions regarding the proposed agreement — and was, instead, left with a predetermined consensus masquerading as a public deliberation at the public meeting in April, the nonprofit alleges.
“Here, each member of the Board convened via e-mail to exchange information about the Agreement, discuss the substance of the Agreement, and determine how to vote at the April meeting,” the petition states. In short, “the Board circumvented the intent of open meetings law by meeting via e-mail, which had the practical effect of predetermining the result of the vote.”
Editorial note: David Lanser, an attorney at Most & Associates, is the partner of Marta Jewson, The Lens’ interim editor.
This article originally published in the February 6, 2023 print edition of The Louisiana Weekly newspaper.
