The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Monday, February 22, 2010

It is a sad day

I have said on this blog and elsewhere that I believe that our city attorney Jason Green is a good and qualified man. I have trusted him in the past.

It is painful to me to suggest now that I believe he has betrayed the trust of the people of Rapid City. In the Tuesday Kooiker censure hearing, questioning by Alderman Ron Weifenbach, made it very clear that Mr. Green included as findings of fact in the Resolution of Censure information he "knew or should have known" to be utterly false and politically motivated. When asked where he came up with the comments contained in the resolution about Mr. Kooiker sending more emails than the other councilpersons combined, he admitted he made it up, based on his general "feeling."

Weifenbach correctly points out that findings of facts cannot be based on "feelings." And, Green is guilty of the very thing the council claims to have been censuring Kooiker for. The difference is clear. Kooiker was accused of mentioning the number $30,000 when describing what others told him was the cost of discarded transit brochures, when he supposedly knew the number to be false. He was to take it for granted that Mr. Ellis was telling him the truth. Mr. Ellis wasn't. Mr. Kooiker did not know (regardless of Mr. Kroeger's attempt at the hearing to get him to admit otherwise) the value of the brochures at the time he made a request for information in a public meeting. Mr. Green declared to be true information which he had no way of knowing was true...because as it turns was false. He did so by including the information as "finding of fact" in the resolution of censure.

I'm very fond of Jason, and have been for many years. But, he is a sworn officer of the court. He included information in a "finding of fact" that was not fact at all. I do not know why he did so. But, he is an attorney of some repute. And, he should have known better. And, his actions have probably exposed the city to what will likely be very expensive litigation. His actions caused Alderman Kooiker to retain, at his own expense, the services of an attorney, who clearly demonstrated that information contained in the resolution of censure was utterly false.

When Weifenbach asked Mr. Green where he got the information contained in the resolution of censure pertaining to more than 1000 pages of emails generated by Kooiker to Public Works Director Robert Ellis over a period of 18 months, he said he got the information from Mr. Ellis. But, when Mr. Ellis was forced to produce the emails, he and Green appeared to have conspired to pack the record with duplicates upon duplicates upon duplicates in order to come up with the more than 1000 pages. And, they did this with the clear intent to "poison the well" of public opinion and the opinions of the city council.

Mr. Green was given multiple letters from Kooiker's attorney concerning Kooiker's rights, which were deliberately kept from council members.

Alderman Costello, rightly told Mr. Green at the hearing that in the future, he would prefer to have that information.

I do not know Mr. Ellis. I know several civil engineers in Rapid City and each of them have told me of their fondness for Mr. Ellis. However, Mr. Ellis apparently deliberately provided false information to Mr. Green. And, when challenged, falsified the record by duplicating numerous pages of emails, in hopes that nobody would read them, and in hopes of poisoning the well of public opinion and the opinions of the council.

The mayor is in an embattled position now, as are members of the city council who passed a resolution of censure based on information they knew to be false.

In Mr. Green's case in particular, it makes me sick to suggest that it is time for both to go.


Bob Newland said...

A terrible tangled web has been woven.

Bill Fleming said...

Mike, I think the Council deleted the parts in the censure related to emails before they voted on it didn't they?

Bill Fleming said...

Mr. Green was no doubt acting on the advice of counsel as per this letter to him from DayMorris the law firm retained by the City.

Michael Sanborn said...

Mr. Green was acting on what he called his "general feeling" rather than on facts presented by Mr. Morris. He said as much in the hearing.

It was also demonstrated in the hearing that the reference to 1,000 pages of emails came from Robert Ellis and Mr. Green included the remark as a finding of fact in the censure resolution without having the facts, from either Mr. Ellis or Mr. Morris.

When pressured to produce the 1,000 pages of emails, Mr. Ellis packed the record with multiple copies of multiple emails in order to reach the 1,000 mark, a deliberate attempt to falsify the record.

Bill Fleming said...

Even so, the Council struck the emails from the language of the censure before they voted, correct?

Is there anything else in the Day/Morris letter you care to challenge?

Michael Sanborn said...

The council only took out part of the offending and false language.

Mr. Morris packed the record with 110 pages of emails, claiming Kooiker overused email, when in fact he sent Mr. Sagen fewer than 3 emails per year for seven years, and none of them were harassing in any way.

I have a problem with everything Mr. Morris did, the way he did it, and the manner in which he was obviously directed to conduct his investigation.

I do not believe Mr. Morris was directed to find out IF probable cause existed. He was hired to find probable cause whether it existed or not.

Bill Fleming said...

Well that's not what his (Morris's) letter to Mr. Green says, Michael. Did you read it?

Michael Sanborn said...

Yes, Bill, I did read it. And all the others. And, if you had been at the hearing you would have seen that Mr. Morris "cut and pasted" his own response and took Mr. Kooiker's comments out of context and out of sequence, as was shown by Kooiker's attorney and the record contained in the actual minutes.

Bill Fleming said...

Would that be on the video of the Council meeting where the censure happened, Mike?

Anonymous said...

This is a really good post. It is very troublesome that the resolution to censure was in violation of state and federal law. For example, let's take a look at state law:

SDCL 9-8-5. Power of council to judge members and govern proceedings--Bribery vacating office. The council shall be the judge of the election and qualification of its own members. It shall determine its own rules of procedure, punish its members for disorderly conduct, and, with the concurrence of two-thirds of the aldermen elected thereto, may expel a member.
Any alderman who shall have been convicted of bribery shall thereby vacate his office.

This statute stands for the proposition that a council may only punish a member if that member has committed bribery (n/a in the Kooiker matter) or committed disorderly conduct.

Did Kooiker commit disorderly conduct? SDCL

22-18-35. Disorderly conduct--Misdemeanor. Any person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by:
1) Engaging in fighting or in violent or threatening behavior;
2) Making unreasonable noise;
3) Disturbing any lawful assembly or meeting of persons without lawful authority; or
4) Obstructing vehicular or pedestrian traffic; is guilty of disorderly conduct

Clearly, by any stretch of the imagination, Sam Kooiker did not engage in disorderly conduct.

It is sickening that a majority of the council and the mayor blatantly disregarded the law written by our elected repressentatives. This smacks of elitism. Vote these people out - nobody, even Malcolm, Lloyd or Hanks - is above the law.