May 5, 2017 01:12 PM

1st Circuit rules contract employees can't collect under state whistleblower law

Dan Collins
Photo by Robin May

(Editor's Note: The story has been updated. Robert Benoit was assistant director of the Atchafalaya Basin Program, not the director.)

A three-judge panel on the First Circuit Court of Appeal has overturned Baton Rouge landman Dan Collins' environmental whistleblower win over the Department of Natural Resources.

In its April 28 decision overturning the verdict of an East Baton Rouge Parish jury rendered in December 2015, the three-judge panel ruled that Collins was not eligible to collect the damages under the state's whistleblower law because he was not classified as a "state employee."

DNR, represented by three Lafayette attorneys from Oats and Marino, appealed the verdict, saying Collins worked for the state under a contract, that he was not a state employee, and therefore not eligible to collect damages or any award under the state's whistleblower statute. The appellate court agreed.

Collins filed suit against then-Atchafalaya Basin Program Assistant Director Robert Benoit and DNR, alleging that he and his firm, Dan S. Collins CPL and Associates, had been shut out of land title work by the department after he reported what he believed to be wrongdoing in connection with the basin program's water quality project on Bayou Postillion. The case bounced around the courts (including the Louisiana Supreme Court) for years based on challenges to Collins' standing to sue until the First Circuit ordered a trial to determine whether Collins was an employee and could, therefore, sue DNR as a whistleblower.

Judge Wilson Fields of the 19th Judicial District Court presided over the jury trial, which lasted for five days. The jury found in Collins' favor and awarded him $250,000 in damages. As a whistleblower, Collins was eligible for triple the amount awarded by the jury.

In their appeal, attorneys for DNR argued that the jury was wrong to find that Collins was an employee. They cited Collins' testimony and documents filed on his behalf in which it was stated that Collins and his firm worked as consultants for DNR.

Read more about Collins' whistleblower suit in this March 2017 story in Baton Rouge's Business Report.

"Thus, plaintiffs have conceded that their claims arise out of a contractual relationship, rather than an employer-employee relationship," Judge J. Michael McDonald wrote for the unanimous panel. "Thus, they cannot pursue an action under La. R.S. 30:2027, as it is a statute that is intended to protect employees from adversary action or other adverse action by employers for reporting environmental violations."

Robert Benoit, who was named individually and in the official capacity as head of the Atchafalaya Basin Program, was pleased with the verdict, which he had predicted in an ABiz interview months ago.

"The First Circuit Court of Appeal got this correct," Benoit exults. "The case is over, and the trial jury obviously got it wrong."

Benoit is now a confidential assistant to Mayor Joel Robideaux.

Collins and some of the people who testified on his behalf say the appellate court ruling applies only to his standing to collect the award, not the facts surrounding the Bayou Postillion project that his case brought to light. As ABiz reported in its March 2016 story, "Atchafalaya antics alive and well," Collins has claimed that over the course of the last decade, DNR spent millions of taxpayer dollars in phony environmental projects that earned a small cabal of lawyers, land owners and oil and gas companies an enormous fortune. In the process, each of them allegedly violated scores of federal and state laws, deceived the public and likely harmed Louisiana’s already-imperiled and fragile marshlands and ecosystem.

“This case involves retaliation for reporting violations of environmental law associated with a publicly funded project in the Atchafalaya River Basin under the pretense of ‘water quality,’” Collins stated in court documents, “when the purpose for dredging the bayou was to access oil and gas exploration for the benefit of private landowners and companies.”

Collins tells ABiz that he has not yet decided whether to pursue an appeal to the Louisiana Supreme Court. "My attorney Christal Bounds is litigating another case right now, and we have not yet had a chance to decide on a course of action," Collins says. "I want to appeal the decision, but I'll wait until I speak with Ms. Bounds before making a decision."

The First Circuit decision also means that DNR is not liable for Collins' court costs. In a separate decision vacating the award of court costs, the court noted that the litigation on the initial case had cost Collins $84,553. That figure does not include the attorney fees Collins incurred in the process of the appeal.

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