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Appearance with connection of request for an advisory opinion concerning whether: 1.) the Board of Commissioners for the Bossier Levee District may receive a donation of the right of way/servitude from Palmetto Farms, L.L.C. (Palmetto Farms) when Mr. Dennis Branton (a member of the Bossier Levee Board) is a part owner of Palmetto Farms; 2.) the Levee District may appropriate a temporary right of way/servitude of passage according to La. R.S. 38:301( C)(1)(e); and/or 3.) the necessary borrow material for the project may be acquired from Palmetto Farms while Mr. Branton serves on the Levee District. |
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The Bossier Levee District is in the process of trying to locate borrow material to raise the Red Chute Bayou Levee located in Bossier Parish. The levee has been overtopped four times in the last twenty years, and therefore the Levee District finds it critical that the levee is raised. The problem the Levee District is having is locating borrow material that is not on lands considered to be wetlands (which would require expensive mitigation costs). Mr. Wallace states in his advisory opinion request that all of the lands in the area of the project are either classified as wetlands or are not for sale. The Levee District has managed to locate a property that is approximately two miles from the levee which preliminary test results indicate would be a suitable soil for the borrow material and is not considered wetland. The issue is getting a right of way to the property. The only access that will accommodate construction vehicles is through property owned by Palmetto Farms, L.L.C.
Palmetto Farms is an L.L.C. involving twelve shares. Mr. Dennis Branton has ownership interest in three of these shares (one in his name and two in an L.L.C.) which gives him an approximate ownership interest between twenty-three and twenty-four percent in Palmetto Farms L.L.C. Mr. Branton is also a member of Bossier Levee Board.
According to a follow-up correspondence with Mr. Wallace there are two possible options for the servitude requested by the Levee District. Neither option, according to Mr. Wallace, would be improvements to the Palmetto Farms property. One option is on the west side of the property owned by Palmetto Farms which preliminary plans suggest would lead to little or no damage to the property, but would require the construction of two low water crossings on property owned by Palmetto Farms in order reach the borrow material on the adjacent property. The estimated cost to construct the low water crossing would be $60,000, and they would be removed upon the completion of the project.
The other is on the east side of the property which would require clearing a path approximately 6800 feet in length and 30 feet wide, which would result in approximately five acres of timber damage, and the construction of a road. The rough estimate for the fair market value of the timber is $9,000. Although an appraisal would be required to know the actual price of the timber, these are essentially the damages the Levee District would be paying to Palmetto Farms, L.L.C., as well as any other damages which might result in construction.
Following Mr. Wallace's initial request, State Representative Jeff Thompson submitted an advisory opinion request regarding the same facts. Representative Thompson's interest in this matter is his ownership interest in one of the twelve shares of Palmetto Farms. Representative Thompson, with Mr. Wallace's approval, amended the original request to seek the Board's advice as to whether the necessary borrow material for the project may be acquired by the Levee District from Palmetto Farms while Mr. Branton is a member of the Levee Board.
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Section 1113B of the Code prohibits an appointed member of a board or commission or a legal entity in which he has a substantial economic interest, from entering into or being in any way interested in a contract, subcontract or any other transaction that is under the supervision or jurisdiction of the board or commission.
Section 1123(30) of the Code creates an exception which permits a public servant to donate services, movable property, or funds to his agency.
R.S. 38:301(C)(1)(e) Notwithstanding any other provision to the contrary, the various levee districts shall also have the authority to appropriate lands and improvements for temporary servitudes for levee construction purposes. As to these temporary servitudes, the "fair market value" shall mean the use value of the lands actually used for the period of time utilized by the appropriating agency.
Section 1112 of the Code prohibits an appointed member of a board or commission from participating in or being in any way interested in any transaction involving his governmental entity in which the public servant or any person in which he has a substantial economic interest has an interest.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
Brent Durham |
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