LUS Fiber has recently been accused of receiving millions in illegal subsidies from LUS. This is a complex issue with a lot at stake. An explainer is in order.
The gist: Last week, the mayor-president alleged that LUS Fiber charged LUS millions in fraudulent payments for a power outage monitoring system that wasn’t useful. He asked for the Public Service Commission to investigate, swirling controversy around Fiber and its former director. Regardless of the episode’s outcome, it’s clear Fiber faces significant financial risk moving forward.
The gist: The Daily Advertiser broke a story late Monday that Lafayette Mayor-President Joel Robideaux has self-reported a second potential violation of state law regulating LUS Fiber. In his Monday letter to the Louisiana Public Service Commission, Robideaux claims LUS may have made illegal payments totaling $8 million to LUS Fiber over an eight-year period. If the PSC agrees, this could create a significant financial burden for LUS Fiber’s operations moving forward.
The gist: For the past year or so, LCG has honed policy for the dawn of 5G networks. Tired of waiting, Councilman Kenneth Boudreaux short-circuited the deliberation, introducing his own policy ahead of the administration’s schedule.
Stop. What’s 5G? A quick oversimplification: 5G is the next (fifth) generation of cellular networks projected to supplant 4G and LTE service in the coming years. 5G networks use dense clusters of small wireless transmitter boxes, attached to existing utility poles or mounted on short towers, to broadcast connections comparable to fiber speeds and reliability. Phones have not yet been developed to use 5G — AT&T’s 5G E is not 5G; it’s LTE plus marketing — but the event horizon is only a couple of years away. Cities are now grappling with policies to deal with fleets of transmitter boxes — i.e. “small wireless facilities” — in public rights of way. It’s progress, but also a nuisance.
Boudreaux compiled a policy to regulate deployment of 5G transmitters in the city and unincorporated areas of the parish. He introduced it as an ordinance, which governs “small wireless facilities,” at Tuesday’s City-Parish Council meeting. It defines things like fees and permitting and defines aesthetic restrictions. Over the past year or so, Boudreaux tells me, he talked with some of the major telecoms developing the technology — like Cox, Verizon and AT&T — but pulled from policies adopted in other Louisiana cities to craft his ordinance. His draft resembles one passed in Baton Rouge in 2017 and shares some of the same exact language. He says the administration should have acted a while ago.
He forced the administration to move. Boudreaux allowed LCG’s legal team to sub in its own draft ordinance as an amendment to his. The legal department and administration worked for the last year or so on the policy with a D.C. law firm specializing in communications. The administration’s draft policy is more detailed and applies stricter guidelines for how the boxes look and where they can be placed. Fees are different too: Boudreaux’s ordinance charges $270 annually per device to add them to city-owned utility poles; while the administration’s policy bills $220. You can view Boudreaux’s original ordinance here. And the administration’s ordinance here.
“My God, Crowley has adopted theirs already,” Boudreaux tells me. His decision to put forth an ordinance ahead of legal was spurred by watching small communities like Carencro adopt policies while Lafayette had yet to do so. (My family is from Crowley, for the record.) In pushing an ordinance, one he admits was not quite ready for prime time, Boudreaux intended to force a public conversation and position himself to lead it. “I gotta govern in a way other people don’t have to,” he explains. One primary concern, he expressed Tuesday night, is that poles could clutter the neighborhoods in his district. He showed the council a picture of a squat, unsightly tower pimpled with grey boxes in McComb-Veazey. It’s not clear where the tower came from. (Maybe it’s a ghost tower.)
Rapidly adopted policies have caused problems in other markets. Baton Rouge rushed an industry-friendly ordinance in July 2017 only to circle back to close loopholes later that year. Still, downtowners there fussed when AT&T began planting 80 5G towers, sometimes in the middle of sidewalks.
5G could pressure LUS Fiber. Some observers say the technology could one day challenge fiber-to-the-home internet service. 5G networks are cheaper to build in neighborhoods that don’t currently have fiber-to-the-home in place (like many of the areas Boudreaux represents) and can be used to add fixed internet service wirelessly. Others say it’s not likely to supplant fiber service altogether, but it could muscle fiber-based internet providers around in the market.
What to watch for: How the council approaches the policy discussion going forward. Boudreaux’s move appears to have pushed the administration into the conversation ahead of schedule, and the draft ordinance swapped in is now subject to council debate at final adoption in a couple of weeks. Other communities have haggled over how much to charge telecoms for the use of public space. Baton Rouge charges $250 per device. Other cities charge thousands. Money will play a big factor in the discussion here.
The gist: Lafayette’s future utilities director could make $250,000, close to the salary retired LUS Director Terry Huval earned to run both LUS and LUS Fiber. The council introduced a measure to bump the budgeted salary to that figure for the newly independent position.
It was originally budgeted at $150,000 when Robideaux moved to split LUS and LUS Fiber into separate departments during last fall’s budget process. He pegged the Fiber director’s salary then at $115,000. Huval was far and away the highest paid public employee in Lafayette Consolidated Government, a distinction that drew some criticism from budget hawks like Robideaux. (Robideaux, according to some, once bragged that no one in his administration would make $250,000.) Some council members pushed back on Robideaux’s original budget, saying good talent couldn’t be had at those prices.
“If we know these numbers are too low, what are we doing?” Kenneth Boudreaux pressed Robideaux at the time.
“I don’t think it’s enough if that’s what you’re asking me,” Robideaux replied.
So why $250,000 and why now? By law, Robideaux must get approval from a contract engineer to fill the position. That consultant, NewGen Strategies & Solutions (no affiliation with NextGEN Utility Systems, the failed LUS suitor), advised the administration that a new director for a utility the size of LUS (a $300 million enterprise) should cost around $250,000.
We still don’t know how much a Fiber director will cost. That’s a separate issue, not managed by NewGen. Boudreaux, who clamored Tuesday night about the new salary, produced an estimate from 2013 that a Fiber director should cost $200,000. If that figure is close to right, new directors of LUS and LUS Fiber combined would cost $450,000.
“That’s $450,000 without even blinking,” Boudreaux told me ahead of the meeting, frustrated with the hurdles jumped to raise LCG employee salaries 2 percent last year, including an override of Robideaux’s veto.
What to watch for: How quickly a new director is recruited and installed. Current interim Director Jeff Stewart, a Huval lieutenant, says he’s interested in the gig. Stewart is already spearheading a public process for the electric system’s integrated resource plan — essentially a long-term planning process that determines how much power is needed and where it will come from — a first for LUS. Stewart tells me that process should be underway in June and could take a year or more. That means the new director could come on board in the middle of a transformative time.
The gist: Fiber and LUS have been formally split since the budget was adopted last year, but the search for new directors to run the now independent agencies was punted until the NextGEN affair was resolved.
Mayor-President Joel Robideaux intends to fill four vacant director positions this year. Fiber and LUS directorships have been vacant since the fall, when the council approved reorganizing Fiber into its own department. It’s an election year, which could complicate the job search, and Robideaux has been slow to fill other director level positions. LCG also currently has interim directors running the IT and planning departments. LCG Communications Director Cydra Wingerter says the search for an new IT director is starting this week.
Some background: LUS Fiber was created as a division of LUS, not a separate department of LCG. The two shared a director — until mid-last year, longtime LUS Director Terry Huval, one of Fiber’s founders — and shared some administrative staff. As Fiber’s operations have gotten off the ground, it’s built out its own support team. After the split, Fiber became its own department, not unlike public works or planning, and is separate from LUS. Since Huval retired last year, it’s been overseen by Interim Fiber Director Teles Fremin. Jeff Stewart serves as interim utilities director.
OK, so what difference does that make? Many have argued that Fiber has long needed its own dedicated director. The thinking is, it’s a $40 million a year operation that needs full-time attention to grow. That was Robideaux’s rationale when he proposed the split last year, and the council has come on board.
Fiber and LUS are financially intertwined, but the split shouldn’t change that. Fiber owes LUS $28 million for loans fronted by LUS in the system’s early days. Fiber has paid virtually only interest on that debt, but is scheduled to make big payments in the next few years, starting with a $1.5 million payment in 2019. Also, Fiber owes $110 million on bonds that are backstopped by LUS. In other words, if Fiber defaults on its bonds, LUS would be on the hook. Robideaux assured the council that LCG is ultimately responsible for Fiber’s debts, and nothing about the split changes the obligations.
Speaking of the council, the new city council will oversee Fiber once the charter amendments take effect in 2020. There was some question at Tuesday’s council meeting whether the split would swap out regulators. LUS is regulated by the Lafayette Public Utilities Authority, a council subset made up of the five city-majority council members. Establishing a city council negates the need for an extra body. Insofar as the LPUA governed LUS, Fiber was under its purview. But, by state law, Fiber is audited by the state’s Public Service Commission. The PSC, for instance, is reviewing the $1.8 million Fiber billed LUS for service to sewer lift stations that were hooked up but never turned on.
What to watch for: Salaries for the new fiber and utilities directors. Last year, council members Bruce Conque, now LPUA chair, and Kenneth Boudreaux argued Robideaux set the salaries too low: $150,000 for the utilities director and $115,000 for the Fiber director. Qualifications and salary for the utilities director will be set in consultation with LUS’s consultant of record, NewGen Strategies and Solutions (no relationship to NextGEN). But the Fiber director’s salary is up to the administration, subject to approval of the city-parish council this year and the city council in the future. Wingerter tells me the $100,000 salary is not set in stone and could rise depending on candidate interest.
Challengers are already mulling 2019. LUS could be the platform they need.
On Monday, NextGen withdrew their offer to manage LUS hours before the Council voted against considering any deal like it. So now what?
If the public doesn’t have all the facts, it’s in part because he’s not providing them. The bottom line is Robideaux’s account raises some red flags. Here are a few of the big ones.
Chief among them: Can we get out of it?
Bernhard Capital Partners appears ready to make its pitch to the Lafayette Public Utilities Authority on Oct. 9.
▸ The gist: Emails exchanged between LCG officials and representatives of Bernhard Capital Partners, the private equity firm pursuing management of LUS, show regular sharing of information between the camps beginning in 2017 or earlier, and at one time included an interest in purchasing both the electric division and Fiber. Fiber is not on the table in current discussions; at some point talks turned from a sale to a management agreement.
▸ Robideaux signed a non-disclosure agreement with Bernhard on April 10, 2017, according to Jeff Jenkins, a Bernhard principal. Bernhard and the administration exchanged revisions of the NDA in late January 2017.
▸ Bernhard received a slew of LUS documents throughout 2017 and 2018. Over the summer of 2017, the emails show that now-retired LUS Director Terry Huval sent Bernhard reps copies of Fiber’s depreciation schedules and several months worth of financial statements for LUS. Correspondence shared among Huval, Robideaux and Bernhard reps show a primary interest in the electric system. “From what I recall, the mayor quickly took Fiber off the table, and that was fine with us,” Jenkins said in an interview Wednesday.
Robideaux has described vaguely the genesis of his discussions with Bernhard about LUS, noting in a memo emailed to council members on the LPUA that, after some initial meetings, Robideaux kept Bernhard’s suggestion of a management agreement in his back pocket until March 2018. He also said that LUS “has never been for sale.”
That month LUS Fiber was found to have billed LUS $1.7 million for telecom services that were never used over several years. The discovery triggered an audit by the Public Service Commission, which regulates Fiber.
“With an impending PSC audit, Terry’s planned retirement, and unfunded generation needs, I reopened conversations with Bernhard on a non-binding agreement,” Robideaux says in his memo. However, email records, obtained by The Current via public records request, indicate the conversation was never closed.
In February 2018, for example, Robideaux received a legal opinion from Bernhard that a management agreement would not require a public vote, the emails show.
▸ A value study of LUS matches Bernhard’s interest in both Fiber and the electric division. Robideaux says he commissioned LUS’s engineer of record, NewGen Strategies and Solutions, to do a value assessment of LUS in the spring of 2017, spurred by general interest in the idea of sale he heard while running for office. The resulting study, delivered to LCG in July 2017 and later shared with Bernhard, contemplates a franchise agreement for both the electric division and LUS Fiber — creating the appearance that the assessment was done specifically for Bernhard. Robideaux has not responded to a request for comment.
▸ Bernhard is expected to produce an offer in the next two weeks. Jeff Jenkins, a Bernhard point man in the play for LUS, says the group will turn over an analysis of LUS in the next two weeks and will likely include its offer. The firm has completed is 90-day due diligence study of LUS, which began after Robideaux signed a non-binding letter of intent in April of this year. The firm is considering private management of all three LUS utility systems — electric, water and wastewater.