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Waller Withdraws from Pay Suit, Lashes out at Councilwoman

24 Jun

Only four days after a recall effort was launched against him, Jefferson County Executive Ken Waller (GOP) buckled under public pressure and withdrew from the elected official pay lawsuit as one of the large group of plaintiffs seeking a retroactive pay hike (they claim they just want clarification on the charter from a judge, but come on), becoming the second politico to do so, after outgoing assessor Terry Roesch, a Democrat. Waller’s participation in the lawsuit was the number one complaint listed in the recall petition notice.

In the current edition of the Leader, Waller admits that the recall had a “small part” to play in his decision to withdraw. He also raises an interesting question:

“I don’t know what effect my withdrawal from the suit will have on whether I would share in back pay or benefits if the judge rules that way. That didn’t play into my decision to get into the suit, and it didn’t play into my decision to get out of it.”

It may not make a difference if Waller has his name on the suit or not. If the money-seeking politicians win, in theory every countywide elected official who has served since 2010 would be eligible for a payout. On the other hand, I hear that Waller played a role in helping recruit elected officials to join this suit. I suspect this was to make a show of force to the court and to spread the predictable political backlash out amongst more people. Given the above uncertainty, Waller needs to come out and state unequivocally that he will accept no lawsuit-related payouts from taxpayers if this suit succeeds. But I doubt he will, because this suit is all about the money.

Along with ending the negative attention and trying to thwart the recall, perhaps another reason Waller dropped out is that he read this devastating motion from the county’s defense team to dismiss the lawsuit and realized his lawsuit is weak. This motion is rather savage:

Setback in Another Lawsuit

Waller’s other lawsuit against the county, which is the legal equivalent of a temper tantrum, was filed because the county council went against his desire to take for himself the right to remove (or not) people from county boards for missing too many meetings. This case was dismissed by the judge this week, since Waller sued the wrong entity and did not set forth an actionable claim. Waller was given until the end of the month to file an amended lawsuit. I suspect that if he can’t sue the council that he is unable to get along with and tries to use as a punching bag, he may not bother to go forward with the suit. Here was the motion to dismiss in this case, another barnburner:

Waller Lashes Out

Two weeks ago the Leader reported on Waller’s effort to gut the county council’s ability to defend against Waller’s lawsuits by trying to cut the funding for hiring outside attorneys. He wanted to reduce the amount set aside from $100,000 to $25,000, claiming a desire for fiscal responsibility. Of course, if Waller was really fiscally responsible he wouldn’t SUE THE COUNTY TWO TIMES. Councilwoman Renee Reuter (GOP) rightly put Waller in his place:

“The use of decision-making authority for the purpose of financial gain constitutes a conflict of interest. The penalty for violations of conflict of interest is criminal in nature,” she said, punishable first by a fine and on subsequent offenses, possible jail time. She also noted that under the county charter, “any officer or employee of Jefferson County who willfully violates the conflict of interest section should forfeit their office.”

Right on. Can you imagine if President Trump tried to cut the FBI budget right now, how media heads would explode? Or what if St. Louis County executive Steve Stenger, who has engaged in numerous efforts to reward donors, did something like this? The St. Louis media would be all over it. But since we’re just JeffCo, this won’t get much notice. But basically you have Waller trying to use his position to interfere in his own lawsuits to help himself win.

Well, Waller was apparently not too happy about being taken to task. While the Leader‘s Pat Martin likes to portray Waller as an aw-shucks country public servant, the fact is that Waller is a knife fighter. His revenge against Reuter was delivered Thursday, when he released an executive order removing her from her spot as one of Jefferson County’s representatives on the East-West Gateway council, a regionwide group that allocates federal transportation funding. I don’t know what Waller’s official rationale for this move is, but it is hard to see this as anything other than political payback. Waller whines in this week’s Leader that the recall effort against him just a personal vendetta, while at the same time engaging in actions like this. Maybe we should add a bullet point about hypocrisy to the recall petition.

Ethics Questions Again for Local Attorney

15 Jun

A JeffCo lawyer who serves as judge for the once-predatory Byrnes Mill court, Colby Smith-Hynes, is accused of unethical conduct in a family law case where he was representing his wife (and employee of his law firm) April regarding her kids from a previous marriage. This conduct allegedly includes his firm forging a signature and fraudulently notarizing it, which allowed Smith-Hynes to represent his wife’s ex-husband (Sean) for a several-month period without his knowledge, even though the ex-husband is actually siding against April and with the long-deceived biological father in this case (Steve) in a drawn-out paternity/custody case.

The notary for the Smith-Hynes Law Firm has received a cautionary letter from the Missouri Secretary of State over this incident, and the state Office of the Chief Disciplinary Counsel is investigating. While Colby was ordered to withdraw from this case, since he might be a witness, the only other lawyer at his law firm, Matt Stone, has taken over these duties. Stone has moved to quash a request that the original signed, notarized document be produced in court.

After the ex-husband found out about the unwanted representation, he put an end to it. After that, with his position damaged, Smith-Hynes lashed out in lawyerly fashion with unwarranted filings, including an order of protection against Steve, depriving him of contact with his own son, and a motion for contempt claiming Sean is behind on child support payments. These filings are intended to delay the proceedings, increase legal costs, and inflict stress. Meanwhile, April continues to receive child support payments, and a teenage boy continues to live in limbo.

These parties are simultaneously battling in small claims court. Sean’s wife, Shannyn, was forced to pay taxes on the loan forgiveness of a vehicle that April took ownership of when divorcing Sean but then lost to default and repossession. The IRS does not recognize divorce settlements, so Sean (and therefore Shannyn) were stuck with the $1,400 debt when April did not pay. Now she has to sue April to get it back. Colby is representing her on this case. A search of Casenet and PACER (the federal courts database) reveals that the Smith-Hynes’ have run into a lot of trouble with paying their debts over the years.

Past Issues

Smith-Hynes serves as municipal judge for the two formerly most confiscatory cities in the county when it comes to charging high fees for traffic tickets, Byrnes Mill and Hillsboro. The legislature passed SB5 in 2015, and this law has since forced ticket reforms and fee reduction. In his judicial capacity, Smith-Hynes was found to have double billed the two cities in 2012-2014 for some travel expenses for the annual municipal judge party/conference at Lake of the Ozarks. After my investigation, he reimbursed Byrnes Mill almost $400, calling it an “oversight.”

Wegge Walks Away

18 May

Not surprisingly, Jefferson County Prosecutor Forrest Wegge, a Democrat, has decided not to run for re-election in 2018, according to the Leader. He says the usual stuff about how it’s time to try something new and he’s been thinking about stepping down for a long time. But really, we know what this is about. With the GOP wave sweeping the county, he had little chance of winning again. Add to that his total bungling of the Dianne Critchlow case, which he first punted to the feds after a six-week review, but then only upon getting the case handed back to him did he decide that he should recuse himself due to his friendship with Critchlow. Why on God’s green Earth didn’t he recuse himself the first time around?

Of course, the Leader appeared to accept his explanation for not running again, and did not press him on either of these issues. The Leader has a history of not asking obvious questions about the Critchlow debacle to relevant figures.

Hats in the Ring

Two people have already announced plans to run for the job, both as Republicans.

The first one is Trisha Stefanski, who ran unsuccessfully for the GOP nomination to a county judge position last year. Interestingly, after the primary, she signed on to a newspaper ad (along with Bob Sweeney) which endorsed all of the Democratic candidates for judgeships. She responded to me about this issue here. Stefanski currently works in Wegge’s office. After the Critchlow debacle, though, we may need new blood at the top.

The second announced candidate is Mark Bishop, who ran against Wegge in 2006…as a Democrat. But you see, he’s not switching parties for political expediency, nope, he says the GOP “more closely aligns with my beliefs” now. Bishop is a partner and owner at Wegmann, a well-connected Hillsboro law firm. He formerly worked under St. Louis County Prosecutor Bob McCullough.

Waller Can’t Defend Pay Lawsuit, PDMP

17 May

Jefferson County Executive Ken Waller has always had difficulty providing a persuasive argument for his preferred policies, instead usually resorting to “because it is best and those who oppose me are dumbheads.” But he had even more difficulty giving a sufficient explanation to Fox 2’s Elliott Davis as to why he’s suing JeffCo taxpayers to get more salary for himself:

Oh, no, you see, it isn’t about getting more money in his pocket! He just wants clarification from the judge! If the judge decides I need more money, what can I do? *chuckles* If that’s the case, then Waller should come out right now and say that he will refuse to accept any extra money if he wins his lawsuit. I mean, if all he wants is a legal clarification, that should be an easy pledge to make and it would put people’s minds at ease that this isn’t about personal enrichment. We’ll be waiting.

PDMP Fails

The proposal for JeffCo to join a multi-county prescription drug monitoring program (PDMP) to fight opioid abuse failed at the April 24 council meeting by a 4-3 vote, according to the Leader. The roll call was:

  • Don Bickowski – no
  • Renee Reuter – no
  • Bob Boyer – no
  • Charles Groeteke – no
  • Jim Kasten – yes
  • Dan Stallman – yes
  • Jim Terry – yes

Waller moped afterwards:

“It’s sad that people just don’t do the right thing, and that (allowing the county to join the database) was the right thing to do. The bottom line is that it didn’t pass, and more people are going to die and they’re not going to do anything about it.”

This was the extent of his argument for this bill, along with his single-minded focus on PDMP instead of a multi-pronged approach to the opioid/heroin problem, as was advocated by Boyer. No data, no facts, just demonizing. Waller also suggested he would go to Jefferson City to lobby for a statewide PDMP (which did not pass, but could come up in a special session). I doubt he would win over any votes there, either.

May Legislative Update

8 May
  • Sen. Gary Romine (R, 3rd district, Farmington) has been under heavy criticism for his role sponsoring SB43, a bill to change the legal standard in discrimination lawsuits from “contributing factor” to “motivating factor” (a higher bar to clear). This would prevent frivolous suits like the one filed by Arnold police chief Bob Shockey. Romine is under fire because a business he owns is being sued for discrimination. But this law would even not affect his case; since the suit is already in progress, it would proceed under the current rules. And people who are actually discriminated against can still win lawsuits under SB43, their claims just have to have some merit to them. Remember how Dianne Critchlow has threatened to sue the Fox district now that feckless prosecutors have let her off the hook? I guarantee her suit will include a baseless gender discrimination claim if it is filed under the current standard. As a business owner, Romine knows about the issues Missouri has with frivolous lawsuits, and is trying to address the problem. The House would need to approve this bill this week in order to send it to the governor.

Romine: “Rather than seeing this bill for what it is — one of the most significant economic development measures to come along in years — the media has been more interested in eliciting the opinions of trial attorneys, SB 43’s only real opposition and a group of people who generally stand to lose from any significant progress on the tort reform front.”

  • Sen. Paul Wieland (R, 22nd, Imperial) briefly held up the passage of HB 130, the bill to allow rideshare services like Uber to operate statewide. He thought, misguidedly in my opinion, that Uber drivers would drop their personal auto insurance since Uber provides coverage while you are working. He had other concerns as well. But three weeks later, Wieland’s concerns were satisfied and the bill was passed and signed into law.

“I just wanted to make sure we protect the public and we keep the number of uninsured motorists to a minimum and I believe this bill will do that,” Wieland told The Missouri Times Thursday.

  • Rep. Rob Vescovo (R, 112th, Arnold) was the House sponsor of SB 182, which eliminates project labor agreements in public construction projects. This bill, which has passed both houses, ends requirements that non-union contractors pay union wages and stops local governments from giving preferential treatment to union contractors. This bill will reduce the cost to taxpayers of public projects. Reps. Vescovo, Shaul, and John McCaherty (R, 97th, High Ridge) voted yes; Reps. Elaine Gannon (R, 115th, DeSoto), Becky Ruth (R, 114th, Festus), and Ben Harris (D, 118th, Hillsboro) voted no; and Roden voted present (weak).

“Some would say it’s an anti-union legislation, and I disagree,” Vescovo said after the House adjourned for the week. “I would say it’s pro-worker and it allows the other 86 percent of the workforce to bid on projects and work on projects without being signatory. That’s very important.”

  • Rep. Dan Shaul (R, 113th, Imperial) ticked off teachers, according to the Leader,  with his vote for HB634, which would allow for the expansion of charter schools in the state. Shaul also serves on the Windsor school board. Charters currently exist only in St. Louis and Kansas City. Teachers claimed Shaul has a conflict of interest, which I don’t buy. Some teachers turned their back on Shaul as he was sworn in for another term at the April 12 board meeting, which is quite juvenile. It doesn’t look like this bill will get a Senate vote. McCaherty, Roden, and Vescovo also voted yes on this bill.

“I would disagree with the assumption that my vote on HB 634 was a conflict of interest,” Shaul said. “The vote I took on 634 was to ensure that all kids throughout the state of Missouri have the same opportunity that kids (who) go to Windsor have.”

  • Along with SB43, other much-needed legal reforms have been advancing through the legislature, and our county reps have voted for them along party lines. However, Rep. Shane Roden (R, 111th, Cedar Hill) voted no on HB460, which would limit out-of-state plaintiffs who bring their cases in St. Louis in hopes of winning big verdicts. This is why you hear all those ads from lawyers about talcum powder and cancer on the radio or see them on billboards. Those plaintiffs don’t even live here.
  • Sen. Romine took to the Senate floor during debate over the budget to offer an amendment to fully fund the state’s foundation formula for education for the first time. It was a bit unusual to do this on the floor after the Appropriations Committee already put the budget bill together, and it caused a split between Senate leadership and some GOP senators as the amendment passed. Romine voted yes on this, Wieland voted no. The House also voted to fully fund the formula.
  • The issue of whether to join a prescription drug monitoring program (PDMP) has been roiling county government here for months, but such a plan is also advancing at the legislature, and if it passes it would make the JeffCo debate moot. The House and Senate will be going to a conference committee to iron out their differences, but with only one week left, it seems unlikely this will get done. In the House, representatives McCaherty, Roden, and Vescovo voted no on the PDMP bill, HB 90, as did Sen. Wieland.

Pevely-Style Actions Shot Down by Area Judges

26 Apr

Two recent court rulings should prompt Pevely to change some practices that would now appear to be unlawful. The practices are charging money for redaction of material for open records requests and limiting what can be said in the public comment portion of board meetings.

Sunshine Law Overcharging

First, in January, a St. Louis County judge said that the county prosecutor could not charge fees to a Sunshine Law requestor for the time it took to segregate open (releasable) records from closed records. The government body has to do this free of charge (they can still charge for finding and copying documents).

Pevely is in the habit, when receiving certain records requests, of demanding a payment of $125 dollars up front so the city attorney, Sean Westhoff of Duggan & Westhoff in Imperial, can separate open from closed records. In one instance, this review was merely of minutes of closed sessions of board of aldermen meetings to “redact the personally identifiable personnel information.” That requires an attorney?! In another instance, Pevely claimed that attorney fees were needed to provide a copy of a lawsuit settlement and the results of closed session roll call votes. Again, no attorney is needed for this; all of this material is clearly a public record under Missouri law. Is the city trying to thwart the Sunshine Law, or merely taking bad advice from another bad JeffCo municipal lawyer?

Pevely’s actions are quite similar to what happened in the St. Louis County lawsuit. The decision there only impacts that county though. But if someone were to sue Pevely over this, they might have a good case. But government entities often rely on the fact that most people have neither the money or inclination to pursue such a lawsuit. Pevely should stop charging exorbitant legal fees for Sunshine requests.

Public Comment Censoring

In University City, a resident spoke during public comment to call for the censure of the mayor. The mayor flipped out, had the police remove the man, and banned him from future meetings. A federal judge responded:

In her order on Tuesday, District Judge Audrey Fleissig also ordered the city to pay Roberts’ lawyer fees and costs totaling $3,060, according to the consent decree.

Fleissig also ordered that the city “cease making a public statement at city council meetings that personal attacks on councilmembers will be ruled out of order” and “cease making a public statement at city council meetings that councilmembers’ motives may not be called into question.”

Also:

The decision also calls for the city to “develop, implement, and enforce a written policy prohibiting content-based restrictions on speech during the public comment period at city council meetings.”

In Pevely, the city demands that only topics on the meeting agenda can be mentioned in public comments. But how are residents supposed to air their concerns about issues that the city has not deemed important enough to put on the agenda? The public comment section is a way for residents to publicly raise concerns that all city officials may not be aware of (sometimes certain officials like to withhold information). This policy is just a way to censor comment. The city does allow you to request to be added to the meeting agenda, but this requires action days in advance of the meeting, creating hurdles to being heard.

The Fox School District also has a very restrictive comment policy. Not only do they limit the public to speaking on agenda items, they don’t allow the mention of specific employees (so you can’t say “the superintendent gave her son a scholarship” after your emails to the board go unanswered) and they ban non-residents from commenting. In addition, they demand a “specific outline” in advance of what you want to say. They can use this to decide to shunt you off into a closed session, ensuring that other residents can’t hear what you have to say.

In light of Judge Fleissig’s ruling, both of these entities need to reconsider their draconian public comment policies. I hear that a change may be coming in Pevely, which would be a good thing.

Lawsuit Filed in Sketchy Jail Death

10 Apr

At the end of 2013 I wrote about the death of inmate Terry Edwards at the Jefferson County jail. Edwards, who was being held for driving on a suspended license, had been there for two days after being arrested by St. Louis County police. He died of a perforated ulcer.

Now, a multi-million dollar lawsuit has been filed against the county over this death. The suit contends that Edwards was in major pain from the afternoon of November 28, 2013 (Thanksgiving Day) until his death early the next morning, and that his requests for help were shrugged off by jail staff and the doctor (who was reached by phone).

According to the jail’s IJMS (Inmate Jail Management System) log, the doctor was called at 4:20 pm on the 28th due to Edwards’ “massive stomach pains,” and said to give him Milk of Magnesia. The doctor was called again at 8:58 pm because Edwards had “bad lower stomach pains and his shoulder and arm was hurting.” The doctor said to give Edwards Motrin and have him see the nurse in the morning. Edwards refused the Motrin. (Of note, ibuprofen and other NSAIDs can actually cause ulcers). Deputies’ reports say he was last seen alive at about 2:15 am. It was at about 4:20 am that Edwards was found to be unresponsive and the ambulance was called. He was pronounced dead at 4:44 am.

What The Lawsuit Says

According to the lawsuit, two other inmates stated that Edwards made additional and repeated requests for medical assistance, but jail officials declined, claiming that he was “dope sick” (he was not found to have drugs in his system). The inmates stated that they also asked, and even begged, jail officials to help him, and that he was vomiting blood. One inmate told this version of events to Fox 2:

“He had been having stomach pains, and he was leaned over holding his belly,” the inmate, who did not want to be identified, said.

He went on to say that Edwards asked jail authorities for help.

“Like six or seven times,” he said.

Here’s a contemporaneous Facebook posting:

FB_screenshot2

What Sheriff Records Say

According to one corrections officer (CO), Edwards complained of back pain at 5:45 pm on the 28th, but did not mention any pain when his meal was delivered at 7 pm or at 10:30 pm. This officer mentions no other contact with the inmate until the time he was found unresponsive after 4 am.

Another CO reported that Edwards never asked for medical treatment or mentioned any medical problems. A third CO who interacted with Edwards during the afternoon of the 28th saw him in a vomiting position but says he observed no blood coming up. He also stated with a suspicious tone that Edwards only asked for help when he could see a CO, but did not ask for help when he did not see one. (That kinda seems reasonable to me.)

The CO who apparently was last to see Edwards alive, at 2:15 am, said he complained of stomach pains and asked for something “to calm his stomach.” The CO denied this request, due to his refusal of Motrin, and told Edwards to see the nurse, who was scheduled to arrive at the jail at 9 am.

Discrepancy?

There are apparent differences between what one inmate told the COs and what he told the plaintiff’s attorneys. This is in a CO report:

cox2

This is in the lawsuit:

cox1

The latter statement has additional details; one might wonder why these details were not shared with the COs. But maybe Cox did not feel comfortable placing blame on the COs while he was still in custody. Of note, it does not appear that the COs took statements from any of the neighboring inmates, including one who claimed in the lawsuit that he had asked the COs to help Edwards.

In general, this lawsuit will have to overcome the general tendency to trust law enforcement officers over those who’ve been accused of crimes (however minor) and incarcerated, as well as the probability that there are inmates who lie about medical problems. But the fact that Edwards was fine when he entered the jail and shortly thereafter died of a treatable condition is also a hard fact to explain away.

Contractor

At the time, and I believe currently, the jail contracted with Correctional Healthcare Companies for inmate medical care. This company has been hit with a number of lawsuits for inadequate provision of care and may find itself a party to this lawsuit at some point.

Other Recent Jail Deaths

  • Bradley Kingery – heroin overdose; 2012; arrested during a traffic stop and wanted on outstanding traffic warrants.
  • Michael Abboud – cause unknown at this time; last month; being held for tampering with a motor vehicle and leaving the scene of an accident.
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