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.”
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 [email@example.com] sent Tuesday, December 01, 2009, at 11:59 AM to firstname.lastname@example.org, 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.