OpenCDA

December 5, 2010

Kennedy’s Demand: Pay Now or Pay Later

Filed under: Probable Cause — Tags: , — Bill @ 9:48 am

Coeur d’Alene City Councilman Mike Kennedy is demanding that Coeur d’Alene taxpayers cough up the money for the legal fees he voluntarily incurred during the election contest lawsuit of the November 3, 2009, city election.

The agenda for the Tuesday, December 7, 2010, Coeur d’Alene City Council meeting shows the Council plans to have a “Mike Kennedy Tort Claim Discussion” under Other Business.

This scheduled discussion will be a scripted and controlled vaudeville act. 

On June 1, 2010, Kennedy’s attorney Scott Reed sent  a notice of tort claim letter to City Attorney Mike Gridley.  Attached to that letter was a letter from Reed to Mayor Bloem.  That letter dated May 27, 2010, was “…a demand upon the City of Coeur d’Alene to assume responsibility for the costs incurred by the incumbent defendant Mike Kennedy in defending the lawsuit brought by Jim Brannon.”  With very little effort, Reed’s letters could be adapted into a television soap opera, a real tear-jerker.

Then on October 22, 2010, Kennedy’s attorneys Reed and Peter Erbland sent another letter to Mayor Bloem.  After two pages of extraneous rhetoric and gratuitous ass-kissing that included the now debunked  statement, “The Kootenai County Elections Department performed well,” Reed and Erbland get to the point:

We are therefore submitting to you our respective statements of time spent and hourly charges.  We request on behalf of Councilperson Kennedy that our attorney fees be paid by the City of Coeur d’Alene.  We are submitting a short memorandum of law supporting the responsibility of the City for the legal work done for Incumbent Councilperson Mike Kennedy.”

Here are links to Erbland’s bill and Reed’s bill.  Examine these bills closely.  They contain some interesting revelations.

As I read the memorandum of law linked above, Erbland and Reed assert the City was obligated to provide Mike Kennedy with legal counsel in this lawsuit.  That was accurate when Mike Kennedy was included as part of the City Council.  In that capacity, he and the other council members were collectively represented by Mike Haman, the private attorney hired by the City to represent the City and its Council.  Councilman Kennedy didn’t need to hire Reed and Erbland; he was already represented by Haman.  If Kennedy or any City employee or agent acted under color of office and promised Reed and Erbland that the City would pay them to represent Councilman Kennedy, that would very likely have been an unauthorized obligation of public money.  Attempts to cover an unauthorized obligation by “ratifying” it later could be misappropriation of public funds.

But Mike Kennedy was also named in the complaint because he was the incumbent.  In Idaho’s election contest law there is an important distinction between Councilman Kennedy and incumbent Kennedy.  Idaho Code 34-2002 defines the incumbent in an election contest thus:

34-2002.  TERM INCUMBENT DEFINED.  The term “incumbent” in this chapter means the person whom the canvassers declared elected.

Incumbent Mike Kennedy was named in the lawsuit because he was the person whom the canvassers declared elected and because Idaho Code 34-2008 required that he be named.    Any financial liability he might have incurred as a result of being on the City Council would have been absorbed by the City.  But any financial liability he might have incurred as the incumbent (as defined above in I.C. 34-2002) is his own, not the City’s.  The taxpayers have no obligation to pay legal bills incurred by incumbent Kennedy.

Suppose Jim Brannon had won the election and had been declared elected by the canvassers.  Further suppose that Kennedy (or any other elector) had contested the election.  Would Jim Brannon have been entitled to have his legal fees paid by the City even before he was sworn in on January 5, 2010?  If you accept Kennedy’s proposition, he would.

But attorneys Erbland and Reed are representing in their October 22, 2010, letter that their client is “Councilperson Kennedy” and that their work was done for “Incumbent Councilperson Kennedy.”  Their memorandum of law supports the City paying Kennedy’s legal bills as a member of the city council, but it does not support the City paying Kennedy’s legal bills as the incumbent (as defined above in I.C. 34-2002.)

It was incumbent Mike Kennedy who hired private legal counsel.  This is shown in an email purported to be from GRIDLEY, MIKE [mgridley@cdaid.org] sent Tuesday, December 01, 2009, at 11:59 AM to jcafferty@kcgov.us, subject:  election lawsuit meeting at 4:00 today.  In it, the sender GRIDLEY, MIKE asks

Could you attend a meeting with [Deputy City Attorney] Warren [Wilson], me and Pete Erbland at Pete’s office at 4:oo today?  Pete had agreed to represent Mike prior to this lawsuit being filed [emphasis added].

Why did City Attorney Gridley, Deputy City Attorney Wilson, Deputy Kootenai County Prosecuting Attorney John Cafferty, and Paine Hamblen law firm partner Peter Erbland need to meet at Pete’s office on December 1?  By all rights, the City and County should have been adversaries after the election.  Look at the Agreement between the City and County executed on August 18, 2009.  Under the terms of that agreement, terms that had been clearly violated by the County Clerk, the City had every right to demand that the County do the election over and deliver a clean election.   Instead, the City Attorney’s office , the County Prosecutor’s office, and Kennedy’s attorney met on December 1 to do what?  To agree to work together to thwart Jim Brannon’s statutorily permissible election contest lawsuit.   But if the City had enforced the agreement it had with the County, it is likely there would have been no election contest lawsuit filed by Jim Brannon.  There would have been no significant legal fees incurred by either Kennedy or Brannon.

So why didn’t the City just enforce the agreement with the County?  Because the City got the election results it wanted.  The incumbents were re-elected and the failure of the City Clerk to perform her duty to enforce the agreement would remain forever hidden from public view.  And of course the County was happy because it would not have to admit just how badly the County Clerk and his elections office have been mangling the administration of county elections.  Nor would the County or its insurer have to pay the cost of the new election as prescribed in the City-County agreement.

Again, if the City had enforced its August 2009 agreement with the County, there would likely have been no election contest with its resultant costs and fees.

It is very likely that at the Council meeting on Tuesday, the City will trot out people who will try to shift the blame for Kennedy’s expenditure to Jim Brannon and his attorney Starr Kelso just as attorneys Reed and Erbland did in their demand letter and claim  letter.  Expect them to assert once again that Brannon should have just asked for a recount.  Expect them to proclaim that the election was well run.  The City wants the public to forget that it was the Coeur d’Alene City Clerk’s and Kootenai County Clerk’s failures of duty that precipitated the election contest.

Reed ends his June 1, 2010, letter with this ominous warning:

I also strongly believe that if the City fails to defend Councilman Kennedy in this lawsuit that the real and consequential damages that the City will ultimately be liable for will greatly exceed the cost of defense.

That sounds as if Kennedy intends to sue the City if the City doesn’t agree to pay the bills submitted by Kennedy’s private attorneys.  But this is a false dilemma as if there are only two choices:  Pay now or pay later.   It is being used to divert the public’s attention and keep us from focusing on the real question:   Why didn’t the City enforce the election agreement it had with the County and avoid the election contest altogether?

The circumstances under which both Kennedy and Jim Brannon may have incurred some financial liability exist because the Idaho Secretary of State, the Idaho Attorney General, and the Idaho Legislature have failed dismally in their collective duties to the public to keep Idaho’s election administration laws viable and up to date.  For Kennedy to demand that the taxpayers of Coeur d’Alene, Kootenai County, and the State of Idaho pay his personal legal bills is repugnant.

We need to keep that in mind as we watch the curtain go up on the Coeur d’Alene Council vaudeville act on Tuesday night.

21 Comments

  1. Oops. My mistake. Thanks for the correction, Bill. I saw only the cover page on Peter Erbland’s invoice and didn’t realize it went on to itemize his charges. Ok, I’ll get down to just the totals. Erbland charged @250/ hr. His total invoice was for $22,400.

    Reed, on the other hand, shows his cost per hour at $200./ hr. Reed’s total is $85,240, for a total combined cost of $107,640

    Comment by mary — December 5, 2010 @ 11:33 am

  2. Mary,

    Look on page 5 of Erbland’s bill. There you’ll see he bills at a rate of $250/hour x 89.6 hours = $22,400.

    Comment by Bill — December 5, 2010 @ 11:47 am

  3. Interesting. Very, very, interesting. So let me get this straight. The City is holding a public hearing on a Tort Claim filed by Kennedy. It was my understanding, which is always subject to amendment based upon additional information, that Tort Claims are uniformly, across the board,…no exceptions…not even responded to. It is my understanding that when they are received they are, in Executive Session, referred to the City’s liability insurance carrier ICRMP. (Doesn’t Erbland represent ICRMP on north Idaho Tort Claims?) It was my understanding that ICRMP is uniformly secretive as to information received and given out regarding Tort Claims. This understanding is based upon the events surrounding the 2005 Tort Claim that Marina Kalani, the administrator of Kootenai County’s failed juvenile drug court, filed against the County/Prosecutor and received a settlement of $69,150. As reported in an April 22, 2005 Spokesman Review Article by Erica Curless the County was “not involved with negotiations” on the Kalani Tort Claim. ICRMP refused to provide the reason for her settlement. Also the article states that the County’s contract with ICRMP “prohibits the commission from knowing the details of the claims…” So, I guess I would like someone to provide me with information as to why Kennedy’s Tort Claim is going to result in a scripted public hearing circus where the City Council will apparently know “the details” (at least from Kennedy’s perspective)of Kennedy’s Tort Claim. I would also like someone to provide me with information regarding whether, if the City holds a public hearing on Kennedy’s Tort Claim, any claim of confidentiality of discussion of Kennedy, the election contest, and Kennedy’s Tort Claim held in Executive Session is waived…retroactively and prospectively?

    Comment by Happy Trails — December 5, 2010 @ 12:23 pm

  4. Looking at Reed’s invoice, is it weird that he wraps his fees for the totally unfounded (frivolous) Contempt Slapp Suit against you, Bill, into the Election Challege? These are separate legal actions! Shouldn’t the billing be separate as well?

    By my quick calculations, Reed is charging Kennedy $8,860 for legal work toward the Contempt Slapp Suit. And Kennedy expects the Taxpayers of CdA to pay for this unnecessary, unfounded lawsuit that was dismissed by the judge?

    A SLAPP suit is a legal term, meaning Strategic Lawsuit Against Public Participation. In other words, it was Kennedy’s attempt to keep other people from helping Jim Brannon and the Election Challenge. Bill McCrory ended up paying—what was it Bill?—more than $10,000 out of his own pocket to defend against Mike Kennedy’s nasty, unfounded lawsuit.

    And now Kennedy wants all of us to pay his tab? No Way!

    Comment by mary — December 5, 2010 @ 12:29 pm

  5. Someone from CDA needs to clarify this in the Press. Another letter today thinking Kennedy “had” to hire attorney(s). There is a huge public misconception about Kennedys part in the lawsuit. People think he was personally sued and was thusly forced to hire counsel. Commenting on the Press site is pointless. It really needs to be spelled out for the public. The dipstick letter today said Jim should pay Kennedysd fees. Also, the question of why two attorneys should be raised. The infrastructure depends on the ignorance of the majority of the electorate to enable them to go their merry way unimpeded.

    Comment by rochereau — December 5, 2010 @ 12:30 pm

  6. Happy Trails,

    According to the official Council agenda, it isn’t a hearing; it’s a discussion. I suspect that means the discussees will be limited to the Mayor and Council, the City Attorney, Reed, Erbland, and Haman.

    As for the City waiving any claim of confidentiality, the City makes up the rules as it goes along.

    Comment by Bill — December 5, 2010 @ 12:54 pm

  7. Mary,

    Yes, the contempt action Reed/Kennedy brought against me was an unfounded SLAPP suit. That Judge Hosack went along with it was very disappointing but certainly not surprising given his antipathy expressed verbally in open court toward Jim Brannon’s election contest lawsuit and anyone who supported Brannon.

    I don’t know if a judge will allow Reed/Erbland to claim costs and fees associated with the contempt action.

    Comment by Bill — December 5, 2010 @ 12:59 pm

  8. rochereau,

    The Press/press in Spokane d’Alene has done a miserable job of informing the public about the election contest lawsuit. That appears to have been an intentional effort to assist the public in remaining blissfully ignorant. An informed public is a dangerous public to the status quo corruptus.

    Comment by Bill — December 5, 2010 @ 1:04 pm

  9. Happy Trails, your comment would make a great Letter to the Editor in the Press. The city has some explaining to do.

    Comment by mary — December 5, 2010 @ 1:09 pm

  10. Regarding rochereau’s comment-
    Do you ever see the movie A Few Good Men starring Jack Nicholson and Tom Cruise, among others? A memorable quote from Col. Jessep (Jack Nicholson) in response to a direct question from defense attorney Kaffee (Tom Cruise),in the court marshal trial, seems to be an appropriate description of the attitude and reporting of the Press, and for that matter, the City’s position…the public can’t handle the truth, (or at least it does not serve the vested interests of the Press, the City, and their respective “handlers”).

    Jack Nicholson
    A Few Good Men (1992)
    [to Kaffee]
    Col. Jessep: You want answers?
    Kaffee: I think I’m entitled.
    Col. Jessep: *You want answers?*
    Kaffee: *I want the truth!*
    Col. Jessep: *You can’t handle the truth!*
    [pauses]

    Comment by Happy Trails — December 5, 2010 @ 1:14 pm

  11. It’s puzzling to me Reed is insisting now that it’s the City’s responsibility to provide legal protection for Kennedy. Wouldn’t a competent attorney have advised Mr. Kennedy of that tidbit at the onset, before racking up $100K+ in legal bills?

    Happy: The City is self-insured, not through ICRMP.

    Comment by Dan — December 5, 2010 @ 2:17 pm

  12. Dan-Thanks. Very interesting. In other words the citizens of the City have determined through their trustworthy representatives to go without the basic fundamental protection that literally 98% of all businesses in Idaho avail themselves, liability insurance.

    Comment by Happy Trails — December 5, 2010 @ 3:00 pm

  13. Forgive me but, I am going to laugh my butt of if the city throws mikey under the proverbial bus to CTOA.

    Comment by concerned citizen — December 6, 2010 @ 10:47 am

  14. It’s curious that they’re holding this tort hearing in public. Executive Session is designed for this sort of thing, and one of the reasons is so that there is little public embarrassment of the people involved. Tort cases are contentious. I’d like to believe that the City is holding the “discussion” (it should be a hearing) in public because they just love transparency. I know better than that. So the question is, who is most likely to be embarrassed by having this circus in public?

    Comment by Dan — December 6, 2010 @ 11:23 am

  15. Dan,

    The agenda shows it as a discussion under Other Business, not as a public hearing under Public Hearings.

    # OTHER BUSINESS:

    1. RESOLUTION 10-046 – Letter of Agreement with the Lake City Senior Center
    2. Mike Kennedy Tort Claim Discussion

    # PUBLIC HEARINGS

    1. (Legislative) O-3-10 – Amendments to Off-Street Parking Regulations

    Recall the last scripted discussion in which Woody McEvers had to be reminded it was his job to ask a salient question so the synchronized headnodders could call Gridley up, ask a few questions, and then expound on how unjust the election contest lawsuit was? Fast forward to tomorrow night — same yo-yo, new string.

    Comment by Bill — December 6, 2010 @ 11:31 am

  16. Dan, the purpose of allowing Executive Sessions during meetings of governing bodies on matters of litigation is not to avoid public embarrassment, although that may be a benefit to some as a result of going secret. The purpose of allowing an Executive Session for litigation is to discuss, in secret, strategy where the governing body would be at a disadvantage, if publically known.

    The litigation concerning the election contest has been very public and any executive session discussions by the council at this point in time, while probably legal under the law, would be politically disastrous and serve no public interest. The fact that they are even willing to consider tapping the tax payer for the councilman’s legal expenses is outrageous enough without going behind closed doors to secretly figure out how to do it.

    Comment by Gary Ingram — December 6, 2010 @ 4:54 pm

  17. Well said, Gary. I just hope they allow the public to weigh in on this decision. Did you see the online Press poll on this subject? 80% said the city should NOT pay Kennedy’s fees.

    Comment by mary — December 6, 2010 @ 6:01 pm

  18. Mary, it’s on the agenda so it should be fine for public comments at the beginning. Is anyone planning to attend? Five minutes apiece with three or four people is a lot of time to educate the Council (or more importantly, people watching at home) on why the City shouldn’t pay Kennedy’s bills.

    Comment by KootenaiConservative — December 6, 2010 @ 7:47 pm

  19. Will you be there, KC?

    Comment by mary — December 6, 2010 @ 9:10 pm

  20. Unfortunately, no. I am actually temporarily living out of state. :-( And besides, I’m not a citizen of Coeur d’Alene so I’m not sure I would be able to address the Council even if I could make it.

    Comment by KootenaiConservative — December 6, 2010 @ 9:45 pm

  21. Since the city council voted to pay over $69,000 to Mike Kennedy tonight, will this be listed on his sunshine report as a campaign contribution? What account did this come out of? Was there a special appropriation? Does anyone have the answers?

    Comment by doubleseetripleeye — December 7, 2010 @ 11:43 pm

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