Image by Tumisu from Pixabay

Ethics. A tough word for some people and states. Many will say this state is ethically challenged but maybe change is coming. This fits in well with the ethics suggestions we made to the City Council.

The state Board of Ethics says the commission that regulates Baton Rouge’s drinking water supply can’t have watchdogs who are fed by those they’re supposed to be watching, violating conflict of interest laws. The board says current, paid employees of companies like Baton Rouge Water Co., ExxonMobil, Georgia Pacific and Entergy, which are major groundwater users, cannot ethically serve on the Capital Area Groundwater Commission — but commissioners have been doing that for decades, despite a past warning.  In 2020, five members of the groundwater commission who were employed by those companies were charged with conflict-of-interest violations, and they asked the ethics board for a ruling on the issue. The ethics board hasn’t questioned any specific decisions the commissioners made. But the board said the fact that commissioners held seats while also working for groundwater users created the appearance of a conflict. “A conflict of interest is a situation which would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing,” ethics board attorney David Bordelon wrote in twin advisory opinions in early February. “The wrongdoing does not have to occur in order for a prohibited conflict to exist.” He was quoting a 2006 appellate ruling over the state ethics code.

Appearance of wrong is all that is needed. That seems an easy way to look at it but the lure of money often makes that harder to see.

Bordelon wrote that no commission member can be paid by a company they oversee, because those companies have economic interests that “can be substantially affected by the performance” of a commissioner’s official duties. For example, the companies pay fees set by the commission for their groundwater pumping; they have to get the commission’s blessing to drill new water wells; and they are subject to any regulations that limit or control groundwater use.  All the commissioners who violated the rule had already either resigned from their spots or had their terms expire. They have since been replaced with new appointees who don’t currently work for regulated users. The ethics board dropped the charges against the five former commissioners — Dennis McGehee and Ryan Scardina of Baton Rouge Water, Nelson Morvant of Entergy, Todd Talbot of ExxonMobil and Ronnie Albritton of Georgia Pacific — without penalizing them. Bordelon, the ethics lawyer, noted they were no longer on the commission and said the ethics opinions would be made public should the companies consider nominating an employee in the future. A state administrative law judge adopted the dismissals Feb. 10.

Which means they did the same thing that has happened before – a slap on the wrist. That does not deter the action.

Baton Rouge Water is the largest single user of the Southern Hills aquifer, which provides drinking water to hundreds of thousands of people. The company operates 65 wells inside the parts of the groundwater source regulated by the commission. The private, for-profit utility and its affiliates in the Baton Rouge area have, according to newly updated numbers, 187,000 residential and commercial water customers. ExxonMobil, Entergy and Georgia Pacific have been among the largest users of the aquifer after Baton Rouge Water. The advisory opinions come months after the state Legislature passed a law to retroactively clear all five men of the ethics violations and create an exemption for future commissioners. Gov. John Bel Edwards vetoed the law in July, and the Legislature failed to override him.  The commission has come under fire from environmental groups, state auditors and the state Office of Conservation in recent years. Those critics say the commission has failed to take aggressive action to monitor big users, plan for long-term use and halt the creep of salt water in the high quality water source, which is hastened by water use.

So the legislature is also ethically challenged. Give them exemptions after we clear them. Good work!

In the commission’s more recent history, it has built on its past work to start new long-term modeling and planning efforts with the Water Institute, the U.S. Geological Survey and LSU but not without lots of internal wrangling over paying for that work and doing the deeper monitoring of groundwater pumping necessary for the effort. The Louisiana Environmental Action Network, a group that has advocated for the elimination of industrial groundwater pumping, had previously filed a complaint about the employees’ service on the panel. It’s not clear what triggered the ethics charges, however. Brett Furr, an attorney for Baton Rouge Water, said the dismissal of the charges was a recognition of the fact that his clients had no intention of doing anything improper but were filling a role Baton Rouge Water employees had had on the panel since the commission’s inception. “Every governor since 1974 has appointed people to the groundwater commission from the Baton Rouge Water Works Co. and the industrial users. John Bel Edwards appointed these people to the groundwater commission. It’s just the way it’s always been,” Furr said. He pointed out that Leo Bankston, the founding chairman of the commission and a person who spearheaded its creation, was a Baton Rouge Water production executive. The commission gives awards in honor of the deceased official.

So we have systemic ethical lapses and we build them into our normal operations?

Furr said the violation was a technical one, and said the groundwater panel was created before the conflict-of-interest provisions took effect. He pointed out that some other state boards have carveouts to avoid similar ethics conflicts. Stephanie Cargile, a spokeswoman for ExxonMobil, raised similar points about the commission’s history, and added it is the company’s view that the commission’s enabling legislation does allow employees to serve on it. “For decades, employees of industrial users have served as commissioners following appointment by the Governor and Senate confirmation. These employees are often engineers with technical knowledge and expertise in water management” that benefits the commission, she said.

This is the same as congressmen who resign to go work for companies that send them in to lobby congressmen. The good old boy network.

But critics of the commission say it’s exactly that cozy relationship has led to years of subpar oversight and a failure to halt the continued salt water intrusion into the aquifer. Under the law, the 18-member groundwater commission does have seats set aside for a variety of users and governments with political, regulatory or economic interests in the aquifer, including for industrial users and public and private municipal water providers. But the new ethics opinion says that, even though the companies can nominate commissioners, those nominees don’t have to be current employees.

They had been warned. But that did not stop them.

The commissioners had been previously been warned by their own attorney in 2015 about just that potential conflict, but some of the commissioners who later ran afoul of the Ethics Board were reappointed to new terms anyway. Baton Rouge Water and ExxonMobil officials said they remain committed to ensuring the long-term sustainability of the aquifer with fact-based scientific data evaluation. Furr added, though, that Baton Rouge Water will seek legislative support to create an ethics carveout in the future. “We firmly believe that the groundwater commission is worse off by not having our guys on there because our guys actually understand the production of groundwater and actually can offer some benefit to the groundwater commission,” he said. William Daniel, chairman of the commission, said he disagrees with the ethics ruling and said the loss of some of those commissioners did take away technical know-how, including Baton Rouge Water’s employees. “But I also think — what’s it worth fighting about? There’s plenty of other people that they can nominate that have the technical expertise to represent their interest on the commission,” Daniel said.

Yes there are others, but do I know them and can I control them? Maybe the Ethics Board is ethically challenged!

Ethics in Louisiana
Tagged on: