OpenCDA

September 5, 2012

Malconduct?

Filed under: Probable Cause — Tags: , , — Bill @ 6:39 am

When the Idaho Supreme Court convenes in Coeur d’Alene (City) on September 19 to hear the oral arguments in the 2009 election contest lawsuit Brannon v. City of Coeur d’Alene et al , one of the issues on appeal is whether Senior Judge Charles Hosack “erred in dismissing the [Brannon] claim of malconduct,  refusing to permit the complaint to be subsequently amended to assert a claim of malconduct, and  holding that there was insufficient evidence in the record to find malconduct.”

I believe Judge Hosack ruled incorrectly and that there was sufficient evidence already in the record to have proven malconduct committed by the City and Kootenai County (County) if the Court had allowed the complaint to be amended.

Malconduct” and the information supporting my opinion that it took the form of frauds against voters and candidates in the 2009 City election are explained in detail in my paper titled Malconduct in the 2009 Coeur d’Alene City Election

In my opinion, their malconduct most likely took the form of constructive fraud committed by the City against its taxpayers, its voters, and the candidates.  The malconduct also most likely took the form of constructive fraud committed against the City and the City’s taxpayers, voters, and candidates by Kootenai County, specifically the Kootenai County Clerk’s Office when acting as the “independent contractor” for the City.  Collectively, the aggregate malconduct  committed by the City and County damaged all those who paid for, were candidates in, and lawfully voted in the 2009 City election.

The victims of the malconduct, specifically the lawful voters and candidates in that election,  were assured that the City and its “independent contractor” Kootenai County would follow Idaho’s elections laws, and the victims relied on that assurance.  They  were damaged when the City and County failed to fulfill their contractual assurances to follow the law in performing their duties as public officials and as the 2009 election Agreement required.  As a result of those failures, illegal votes were cast and counted in sufficient number to change the outcome of at least one council seat election and to cast serious doubt on the integrity of the entire election.

I believe the City and County knew fairly quickly just how badly the 2009 City election had been mishandled by the City and its “independent contractor,” the County.  Moreover, I believe they knew the evidence of malconduct would be persuasive, so they determined the best course of action was to discourage Brannon from pursuing the election contest lawsuit.  Rather than doing the right thing and simply demanding that the County pay for a new election that complied with the laws as their Agreement provided (Agreement, page 3, item 6), I believe the City and County instead decided to protract the lawsuit and impede Brannon’s access to the evidence proving malconduct.   After all, the City and County could spend the public’s money to try to cover up the malconduct that had tainted the 2009 City election.  I believe they hoped that financial attrition would force Brannon to abandon the election contest lawsuit long before the malconduct could be revealed to the City’s taxpayers, voters, and candidates.

Although all public officials owe a duty of honest services to the general public, I believe that there was a special relationship created between officials who administer elections and the voters and candidates (or issue sponsors) in a particular election.  Those who administer elections have a special duty of impartiality and neutrality, because there must exist  an essential  and special trust between election administrators and those who participate in elections.  Unlike other areas of government where openness and general public scrutiny of every step of the process is essential to build trust, in election administration there is one critical area where secrecy is essential:   the secrecy of how a particular  individual voter has voted.   That must be preserved to build trust in the election process.  When election administrators take unlawful actions or fail to take required lawful actions with the result that the election is contested as prescribed by law and a court is then required by law to determine how a particular voter voted, the special relationship that can exist only between the election administrators and the voter has been violated by the failure of duty of the administrators.

Ironically, it would have probably been much less expensive for the City and County if the City had simply demanded that the County re-do the election at the County’s expense as their Agreement (Agreement, page 3, item 6) provided.  I believe a do-over is exactly what would have happened if the five-vote margin had favored Brannon rather than Kennedy immediately after the 2009 City election.   I believe the City government desperately wanted to retain the incumbents and was willing to spend almost any amount of the public’s money to ensure that Jim Brannon, Dan Gookin, and Steve Adams were not seated on the Coeur d’Alene City Council.  Rather than wanting critical thinkers in 2009 with the skills to scrutinize and analyze the City’s finances, the City government wanted headnodders who would compliantly and unquestioningly vote for its multimillion dollar patronage projects from 2010 through 2013.  And the City government certainly didn’t want three new council members who would timely reveal the City’s dealings to the public.

I’ve supported my opinions in a paper titled Malconduct in the 2009 Coeur d’Alene City Election.  Here are links to some of the material cited in that paper.

2009 City-County Election Agreement

2009 Election Manual for City Clerks

The Coeur d’Alene, Idaho, Election Contest Lawsuit — 2009-2011

 

 

8 Comments

  1. I looked at the ‘Election Agreement’ that you attached. It states at page 3, paragraph 6, that the county is required to keep an insurance policy for $500,000 to protect the city “from and against any and all claims, losses, actions…” Reportedly the city paid roughly $30,000 to its attorney to defend the election contest. Kennedy apparently filed a Tort Claim against the city for his personal attorney fees in the election contest, and the city reportedly paid him roughly $70,000 to settle his claim. Aren’t these “claims”? Aren’t these payments “losses” to the city? Wasn’t the election contest an “action”? I think most city taxpayers would not think this was ‘pocket change’ and did not need to be reimbursed. As a business owner, if I had such a contract I would certainly demand that I be reimbursed. I think, if I had such a contract and paid this money out of my business, that there are plenty of lawyers out there that would gladly pursue recovery of the money for me on a contingency fee that would not cost me a penny.

    I have not read here, or anywhere, that the city was reimbursed for the money it paid out. Thus, my question is–Did the city, on behalf of its taxpayers, demand this money from the county. If it did demand the money, did the county reimburse the city? If it did not demand the money, why not?

    If nobody knows the answers to these questions, I would think that city taxpayers, and perhaps councilmen Gookin and Adams, should demand answers.

    Comment by up river — September 5, 2012 @ 9:05 am

  2. Ha, I guess I should have checked the Press web page first. I see where the city budgeted $65,000 for a public relations person. If the city got the $100,000 back from the county it could pay for this new position.

    Comment by up river — September 5, 2012 @ 9:18 am

  3. up river,

    RE your Comment #1: At the August 18, 2009, Coeur d’Alene City Council meeting, the City Clerk asked the Council to approve the Agreement. Here is the Staff Report she submitted at that meeting to support the agreement. Note that she estimates the cost to the City for the County to administer the 2009 City election was $17,000.

    If your figures are even close to correct in your comment, it cost the City a great deal more to fight the election contest lawsuit than it would have cost for the City to do the right thing and demand the County do it over at County expense, and this time, follow the law!

    Comment by Bill — September 5, 2012 @ 9:37 am

  4. Here’s something you’ll likely never see in Idaho: Feds arrest a state representative for election fraud. I guess the voters in Arkansas would like to have honest officials elected in honest elections.

    [Eastern District Assistant] U.S. Attorney Jane Duke said … “In a nation in which every person’s vote matters, protecting the integrity of the electoral process from those who seek to win office by cheating the system is critical. Vote fraud schemes such as that carried out in the 2011 District 54 race have the devastating effect of eroding public confidence in elected officials and disenfranchising voters.”

    The article mentions prosecution under the Travel Act. That is more correctly cited as 18 USC § 1952 – Interstate and foreign travel or transportation in aid of racketeering enterprises. It often involves use of the internet or other interstate telecommunications to facilitate the racketeering.

    AUSA Duke has it right. It appears she and the US Attorney for the Eastern District of Arkansas place a higher priority on election integrity that our US Attorney for the District of Idaho and the AUSAs in northern Idaho.

    Comment by Bill — September 5, 2012 @ 6:54 pm

  5. I guess that would explain the “FULL SPEED AHEAD” on McEuen before this comes to a head. Sickening!

    Comment by concerned citizen — September 5, 2012 @ 8:07 pm

  6. concerned citizen,

    Well, McEuen was “full speed ahead” long ago, at least according to the City. In 2009 I believe the Mayor, Kennedy, and their cronies were concerned that Edinger might finally wake up and smell the coffee and oppose the McEuen project. They would also have realized that Brannon, Gookin, and Adams might have opposed the project based on purely fiscal reasons in 2010 if they had been elected. Absent the required headnodders on the Council as a result of a different 2009 outcome, the McEuen project might never have been the abuse of public money it has and will become.

    Comment by Bill — September 6, 2012 @ 7:19 am

  7. I have been away from the area for quite some time, I can’t believe this is still going on. I thought this had to be settled within 30 days. With a case as important as this, why all of the delays? Couldn’t an expedited trial have been granted?

    Comment by doubleseetripleeye — September 6, 2012 @ 2:26 pm

  8. 2C3I,

    Idaho’s very outdated election laws required that the election contest lawsuit trial was supposed to have been heard in the district court within 30 days of the complaint being filed! We can only hope that this election contest lawsuit lights a fire under Idaho’s lethargic Secretary of State and the Legislature to revamp all of Idaho’s laws relating to elections.

    Comment by Bill — September 6, 2012 @ 2:56 pm

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