OpenCDA

November 11, 2014

Free Advice

Filed under: Probable Cause — Tags: — Bill @ 12:13 pm

Tondee copyHere’s some free advice for Kootenai County Commissioners-elect Marc Eberlein and David Stewart:  Wait until after you have been sworn in to become further involved in the mess that Commissioner Green, outgoing Commissioner Tondee, and Airport Director (or not…) Greg Delavan have created.

This morning’s skewspaper (the Coeur d’Alene Press) article headlined Commissioners discuss airport hiring process includes this line:  “Nelson said the commissioners heard from the two newly elected county commissioners last week, who informed them that – barring any glaring misdeeds in his personnel file – they plan to reinstate former airport manager Greg Delavan in January once they take office.”

If the horse named “Glaring Misdeeds” ever existed, it has already died at the hands of Commissioners Green and Tondee.  If Green and Tondee and Nelson had evidence of “glaring misdeeds” sufficient to justify or even just strongly support Delavan’s termination, we’re reasonably sure the County’s Human Resources Department and the Commissioners’ legal adviser would have helped them through the proper process to achieve a lawful remedy.   Of course, that assumes the Commissioners sought help.  Instead, it appears that they decided to shortcut the process and knowingly violate the Idaho Open Meeting Law to achieve their desired result.

More free advice to the Commissioners-elect.  If you’re even considering signing the confidentiality agreement that Tondee reportedly is having “legal” create, please have it reviewed first by your own private legal counsel.   Tondee’s “legal” advisor is a Kootenai County deputy prosecuting attorney.  That attorney represents the County’s interests, not yours.    Understand the validity and the immediate as well as long-term consequences of the agreement before you decide to sign it.

The violation of the Idaho Open Meeting law rendered Delavan’s October 24th firing void.   That the Commissioners may have been able to “cure” their earlier void termination in a properly conducted meeting on November 7 does not relieve either of them of the civil penalty to be imposed for “knowingly” violating the law.

If Kootenai County Prosecuting Attorney Barry McHugh plans to follow the law and actually do his job, he will petition the District Court to appoint a special prosecutor as provided in Idaho Code § 67-2347(5) to investigate and pursue a civil penalty (fine not to exceed $500) from  Commissioners Green and Tondee if they are proven to have knowingly violated Idaho Code § 67-2347(3).

Both Commissioners acknowledged the decision to fire Delavan was made during an executive session, a clear and unambiguous violation of Idaho Code § 67-2345(4).  Minutes of meetings that occurred before Delavan was fired show that all three County Commissioners are well aware of the requirements of the Idaho Open Meeting Law (e.g., Minutes of the September 19, 2014 executive session), so none of them can justifiably invoke the standard Idaho public official’s defense of utter ignorance.   And as we pointed out in our November 4 OpenCdA post entitled Wrong Answer, Commissioner Green:

… this would be Commissioner Tondee’s second violation.  On April 1, 2010, in Noble v. Kootenai County, 231 P.3d 1034, Kootenai County Commissioners Elmer R. (Rick) Currie, W. Todd Tondee, and Richard A. Piazza were affirmed by the Idaho Supreme Court to have violated the Idaho Open Meeting Law.  It is unlikely that the decision of the Idaho Supreme Court in Noble escaped Commissioner Tondee’s notice, so we believe his previous violation is evidence that his present alleged violation was done “knowingly.”

We have no confidence that Kootenai County Prosecuting Attorney will make the effort to get Tondee and Green fined for knowingly violating the Idaho Open Meeting Law.   As we pointed out in our February 2009 OpenCdA post entitled When Did They Plan to Tell Us?, a cabal led by Idaho Deputy Attorney General Bill von Tagen and which included the lobbyist for Idaho’s counties sought to eviscerate the Idaho Open Meeting Law.  They had plenty of support from Idaho’s legislators.  (We note appreciatively that several Idaho legislators, those often maligned by the state’s skews media, voted against the carnage.)

And yes, we do know that free advice is worth exactly what you pay for it.  Nevertheless, we do urge Commissioners-elect Eberlein and Stewart to remain on the sidelines for now.   Once you’re in the game officially, you will have more than enough opportunities to do your own analysis of the facts and come up with your own solutions.  We hope your solutions will be unusual for Idaho and adhere to the law.  For now, we urge restraint in accepting any responsibility for the mess you have been left with.

8 Comments

  1. After dealing with the County for a really long time I have realized over the years that the Board has been given three basic options from legal services, directed by the Prosecutor: 1) Do “whatever” and we’ll see how well we can defend you, 2) This is what the law reads and we should discuss your options, and 3) Should have fixed this along time ago, let’s prepare a draft ordinance for the next Board (maybe throw-in a little planning too).

    Comment by Old Dog — November 11, 2014 @ 2:31 pm

  2. Old Dog,

    One of the assigned duties of the Prosecuting Attorney’s Civil Division is to provide training programs for County elected officials, department managers, supervisors and employees on a number of law-related topics. Logically, that would include instructing the Commissioners on the basic points of the Idaho Open Meeting Law. In this particular instance, two of the three Commissioners publicly admitted that they made the decision to dismiss Delavan while they were in executive session. I guess they missed the lessons on how to lawfully conduct meetings and how to lawfully terminate employees.

    On November 5th at 9 A.M. I delivered a public records request to the BOCC records custodian for agendas and minutes of public meetings and executive sessions in which the decision to fire Delavan was made.

    Following your categories, I’m guessing is that the BOCC picked door number 1 and decided to do “whatever” and we’ll see how we can defend you. Door number 2, “This is what the law reads…” doesn’t apply, because Green rejected the law when it didn’t make sense to him. Door number 3 doesn’t apply, because they can’t fix state law with a county ordinance.

    Comment by Bill — November 11, 2014 @ 2:59 pm

  3. What lessons, ask the civil division when it last provided training to an elected official specific to the open meeting laws, public records act, public depository law and so on.

    Tondee and the two former Commissioners met in executive session about me in 2010 with Sandy Martinson and Barry McHugh making decisions. The Prosecutor can’t prosecute himself and has a track record of not admonishing one official who is far from following Idaho laws.

    The buzz around the County use be calling this place the “State of Kootenai” followed by a chuckle, “we know it’s that bad” more chuckling. I point blank asked one official years ago who agreed they were not following the law asking him well why would you possibly do that and he responded “because we have free legal”.

    Comment by Appalled — November 11, 2014 @ 3:34 pm

  4. Appalled,

    Hmmm. I’ve often said that if Satan reincarnated Meyer Lansky and Benjamin “Bugsy” Siegel and offered to return them to 21st century Las Vegas to resume control over the rackets, Lansky and Siegel would laugh and say, “Vegas is too risky now. Send us to Idaho.”

    Comment by Bill — November 11, 2014 @ 3:43 pm

  5. Old Dog, door number 4 stir up some chaos then get on the bus out of here and leave your Cush job.

    Bill, Bugsy and his accountant could learn a few things from the State of Kootenai.

    Specific to the airport director firing. Knowing what I do about my own dealings with Commissioner Green I believe the rush to making the decision before his planned vacation is way over the top from just being coincidental. The incoming Commissioners are going to be left with much bigger problems then this when they take office; this one just caught the attention of the public when so much disregard has long existed that they can’t even follow the open meeting laws.

    I can see plenty wrong with the incoming Commissioners getting involved now but on the other hand to bring them in to consult with regarding perhaps the bigger picture, so long as it’s not tainted in any way, could help move a sincere Commission in a more ethical direction. True they would have no legal representation and would not legally be held accountable to the public so they should seek separate legal counsel. What a mess!

    This could have easily waited two months the unlawful rush to fire screams of a maneuver that just may not have occurred otherwise certainly after January. Given the problem either way a temporary manager could be employed and should know what he or she is getting into. I wonder who is in charge now and how that is going.

    Comment by Appalled — November 11, 2014 @ 4:20 pm

  6. Appalled,

    I understand that Phillip Cummings, formerly the Operations Manager, is wearing both hats as the Interim Airport Manager and Operations Manager.

    Comment by Bill — November 11, 2014 @ 8:08 pm

  7. If a new manager is hired and the illustrious KC Pros Atty (aka “free legal”) then has to try to explain to the new commissioners why they really should not just fire him/her in order to rehire Delavan, I am going to run right down to the store and get some popcorn before it is all gone.

    Comment by up river — November 12, 2014 @ 4:28 pm

  8. up river,

    Yes, I don’t see that anything could possibly go wrong with their plan…

    You bring the popcorn and I’ll bring the folding chairs and beverages.

    Comment by Bill — November 12, 2014 @ 4:46 pm

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