LA Attorney General Stops $50,000 Commission Cleanup

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by John Settle
Shreveport Attorney John Settle
John Settle

In what can only be described as great news is a recent opinion of the Louisiana Attorney General that precludes the expenditure of $50,000 by the Caddo Commission to clean up a marshy area behind a number of homes in the Cherokee Park Subdivision. The May expropriation by the Commission was conditioned upon approval by the Louisiana Attorney General Buddy Caldwell. The clearly worded, definitive opinion(12-0114) has not only saved the Commission from litigation challenging this expenditure, but also possible malfeasance. Oxbow at Cherokee PArk

The property in question is an old oxbow of the Red River; according to Parish Attorney Charles Grubb the old river bed is now owned by the private property owners. The City of Shreveport had, on at least one occasion, cleaned this area of undergrowth and trees. A recent request from the Cherokee Park homeowners was declined by the City and the homeowners sought assistance from the Commission.

In an effort to justify this public project on private property, the Commission strained to find a “public purpose” i.e. that the condition represented a health hazard to the entire neighborhood. The Commission evidently believed that the snakes and “other varmints” who may breed in this wet area are highly mobile, and as such, would seek higher ground by the traveling over the lots, cross subdivision streets and establish habitats throughout the neighborhood.

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The fact that the property is in the city limits seemingly was not a problem for the Commission or the fact that neither the City nor the Levy Board officials were not interested in assisting the residents. The fact that most of these residents do not pay parish taxes because of the $75,000 homestead was also not a factor to the Commission, –nor any concerns of setting a bad precedent for requests from other homeowners’ associations.

The legal issue for the Attorney General to decide was whether the Parish could legally expend public funds to clean up private property that may pose health and safety risks to the general public.

Can we get away with it?

The opinion listed three (3) requirements to satisfy the general prohibitions of the Louisiana Constitution against public entities spending public funds on private property: (1) a public purpose for the expenditure; (2) the expenditure, as a whole, not to be gratuitous; and (3) a demonstrable, objective, and reasonable expectation of receiving equivalent value is for the expenditure.

The A.G. sided with the Commission on the public purpose of the proposed cleanup, –cleaning private property “to remove health and safety issues to the general public.” In deciding the gratuitous transfer issue, the opinion concluded that clearing an overgrown area was the same as repairing a private road. Although it would be an indirect benefit to the general public, such an expenditure would be a “gift” to the private property owners.

Gift or tactic for reelection?

After reviewing the direct benefit of the proposed cleanup to the private landowners versus the indirect benefit to the general public, the opinion concluded that the Parish did not have a demonstrative, objective and reasonable expectation of receiving equivalent value for the expenditure of public funds. Thus, the cleanup project failed two of the three tests required to be valid.

Hopefully each of the 12 Caddo Commissioners have not only read the A.G. Opinion, but also taken the time to comprehend just how far out of bounds the proposed expenditure would have been. Trying to be all things to all people (and especially those in one’s district) may be a good tactic for re-election, but it is also a great way to shirk the responsibility of elected officials to exercise sound fiscal judgment that comports with Louisiana law. The last thing Caddo Parish citizens need are Commissioners who start to act as if they are operating in the free state of Bossier.

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