Wednesday, December 21, 2011
The most effective way to defeat the good old boy regime is for citizens to reject its lies and “live in truth.” This means, first of all, telling the truth in answer to official propaganda, but also behaving as if ethical conduct — which most good old boys claim to respect — can not be taken for granted.
The State BAR Association observes, "A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation."
Doug Napier became full time County Attorney in July, 1998. The Board of Supervisors voted and signed a written employment agreement. Section 2-C of this agreement states: "[...] THE EMPLOYEE AGREES TO REMAIN IN THE EXCLUSIVE EMPLOY OF THE EMPLOYER [...] AND NEITHER TO ACCEPT OTHER EMPLOYMENT OR TO BECOME EMPLOYED BY ANY OTHER EMPLOYER [...]."
For the next 8 years County Attorney Doug Napier violated Section 2-C at least 269 times by accepting employment from private clients. I have provided you with a chronological list of courthouse records proving these 269 violations. My spreadsheet has red flags identifying Napier's private clients who had official business before the governing authorities of Warren County. My spreadsheet does not show the numerous times Napier's client Ron Llewellyn presented his business interests before Warren County agencies and boards.
Some authorities suggest Napier had permission to violate his employment agreement. This can not be true. The 1998 agreement was renewed in 2003 and contained the same Section 2-C prohibition. Where is this record of permission kept? Who authorized it? Why is it not in the public record?
Who nominated Mr. Napier to become Town Attorney? Was it Mr. Holloway? Was the Town Council aware of Napier's decades long history of attorney client privilege with Warren County, with developer Ron Llewellyn, and with Napier's most recent employer with offices at 35 N. Royal Ave?
It was Mr. Holloway who nominated Ron Llewellyn to a seat on the real estate-buying and selling EDA Board of Directors. Llewellyn is a risk to the public's best interests because he is himself a real estate buyer and seller. Joining Llewellyn on the EDA Board are a banker with millions of dollars to lend and a second land speculator also busily engaged in the buying and selling of real estate. Connecting these 3 EDA board member dots is a lawyer, Mr. Napier, who has a decades long history of providing these parties with private legal services. And, perhaps, private legal advice?
Why do governmental authorities create such high risk situations by appointing people as custodians of taxpayers money who are:
(A) people owed tremendous amounts of money
(B) who are people who owe tremendous amounts of money
(C) who are people with financial interests in those very activities they are supposed to be monitoring
(D) who ALL have shared a lawyer who now works at the very heart of government who has privately represented each of them.
What should we make of these 269 violations by Mr. Napier? The State BAR Association observes, "[...] It is professional misconduct for a lawyer to commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law. [...] It is professional misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law."
I will reccommend to the Town Council they rescind its appointment of Mr. Napier, taking the first of many steps needed to restore good governance tied not to private interests, but to public interests. In such a heated convergence of private interests, all the recusals in the world are not adequate to protect the taxpayer from the good old boys.
Tuesday, December 13, 2011
This ongoing unethical conduct supports a local history of implanting an unethical culture of business and politics in Front Royal and Warren County. It will be no easy chore to uproot this deeply entrenched cronyism and corruption.
Yet another example is now being showcased for you. Consider the circumstances sufficient to force the resignation of Doug Napier from county public office. These same circumstances are now being overlooked by the Town Councilmen and their leader, Mayor Darr, when hiring this same offender for a town public office. Do the members of the Town Council consider these circumstances of past moral and ethical lapses have no bearing on his employment as Town Attorney? Were they seeking a Robinette clone?
Many of my contacts agree Robinette was the source of many problems for Front Royal. Perhaps the most egregious was his attempt to have fabrications of bribery brought against the town manager. As you may remember, this attempt involved the Richmond law firm of Troutman Saunders who was provided information verbally by Robinette seeking their written endorsement of wrongdoing. The information recollected later by Troutman Saunders seemed to be a description of a cherry-picked construct of misinformation intended to force a specific conclusion sought by Robinette.
Unfortunately, this real life scenario supports the often told joke - 99% of all lawyers give the other 1% a bad reputation.
Here are the comments I made last night to the Front Royal Town Council:
Speech - Front Royal Town Council 12-12-2011
Mr. Mayor, Town councilmen, good evening.
Mr. Town Attorney Napier, I continue to wait for your answers to the 6 questions I placed before you at Councils public meeting November 28th. Silence is not a viable strategy to solve any problem.
Mr. Napier, don't you find it troubling not a single Councilman rose during that November 28 meeting to speak in your defense?
More troubling is this continued silence. Most troubling is your conflict of interest statement in the matter of Ron Llewellyn and his company, Heptad. Your statement was not dated. What kind of attorney prepares a document declaring a conflict of interest and fails to date it?
Worst of all, Mr. Napier, you were expected to provide proof the Warren County Board of Supervisors gave you their written permission to violate your written employment agreement to become employed by private sector clients during your tenure as full-time Warren County Attorney. May I expect this written permission will be dated and part of the Warren County Board of Supervisor's meeting minutes?
Tied for the honor of 'most troubling' is lack of leadership in this matter by Mayor Darr, whose campaign rhetoric promised if elected Mayor he would get the Town Council under control, support the Town Manager, and not be influenced by outside special interests
Which of you Councilmen will admit to being under the control of Mayor Darr? Which of you can rise to defend the leadership of Mr. Darr and the allegations against Mr. Napier?
With regard to the circumstances surrounding Mr. Napier's abrupt resignation in 2006 as Warren County Attorney, if those circumstances were sufficient to motivate demands for Napier's resignation from public office, certainly they weigh against hiring him for another? Do the members of the Town Council consider these circumstances of past ethical lapses have no bearing on his employment as Town Attorney?
Mayor Darr, which Good Old Boy's special interests have you ignored?
Mr. Burke, as Town Manager you have my deepest sympathy for being caught between a rock and a hard place.
Mr. Holloway, on the recent occasion of your conversion to the Democratic Party, would you take the opportunity of giving us your views concerning the principles of ethics and how they apply to the issues I raise concerning Mr. Napier's qualifications to the position he now holds?
Mr. Lauder, will you make a campaign promise to create and follow a Code of Ethical Conduct to guide town employees, other Councilmen, and yourself?
Mr. Tharpe, will you be the first to tell us your views concerning employment agreement violations by Mr. Napier?
Mr. Mayor and Councilmen, as bad as things stand today, the silence of crickets guarantee it can only get worse.
Saturday, December 3, 2011
In my email to Town Attorney Napier dated 15 November 2011, and copied to the Mayor, Councilmen, Supervisors, and undisclosed citizens, I asked Mr. Napier to provide a copy of his employment agreement with his most recent private employer, the law firm of Pond Athey Athey & Pond. Mr. Napier is not obligated to provide this agreement, but providing a copy would confirm or deny Mr. Napier's private and public sector employment agreements both prohibit employment by anyone other than the employer.
The same email also asked Town Attorney Napier 6 important questions. As it appears Mr. Napier temporarily chooses to remain silent, I will now repeat those 6 questions for the public record.
1- While you are presently employed as Front Royal Town Attorney, will you practice law on behalf of Pond Athey Athey & Pond and/or any of its past, present, or future clients? Do you anticipate receiving compensation for your legal services?
2 - While you were employed as Warren County Attorney from 1998 until your abrupt resignation without notice in 2006, were you ever employed by anyone other than Warren County? If so, did you receive compensation for your legal services?
3- During the time period 1998-2006, were you ever Co-Council with any member of any law firm on behalf of any client other than Warren County? If so, did you receive compensation for your legal services?
4- During the time period 1998-2006, did you ever appear before any tribunal, court of law, or government agency as Co-Council with any member of any law firm, including Pond Athey Athey & Pond? If so, did you receive compensation for your legal services?
5- During the time period 1998-2006, did you maintain a private business office separate and distinct from your government office at 220 Commerce Avenue? Did you ever counsel private clients inside your government offices?
6- Do you claim your employment agreements with Warren County allowed you to accept employment by someone besides Warren County? If so, please explain how Section 2C of these agreements allowed you to practice law on behalf of other employers.
Mr. Napier, my questions are not rhetorical. They all point to legal, ethical, and moral components of the Virginia Rules of Professional Conduct that apply to all members of the Virginia BAR Association.
As a public servant, should you choose to remain silent and not answer these 6 questions, please invoke your 5th Amendment rights on the grounds your answers may tend to incriminate you. Otherwise, stop stonewalling.
Again, I ask, while you were employed as Warren County Attorney from 1998 until your abrupt resignation in 2006, were you ever employed by anyone other than Warren County? If so, did you receive compensation for your legal services?
Monday, October 24, 2011
Below is the speech I gave to the Front Royal Town Council tonight. Please feel free to forward this message to your friends. Elimination of the Good Old Boy monopoly is slow to come, but it is coming.
Mr. Mayor, Councilmen, good evening.
A letter to you dated 3 October from Doug Napier claimed my email letter to you contained factual errors. Mr. Napier did not identify any factual errors, not one, and specifically did not address my allegations concerning his employment agreement violations and his conflicts of interests.
I allege Mr. Napier is inextricably intertwined with the real estate development operations of former County Supervisor Ron Llewellyn.
I allege County Attorney Napier, on as many as 374 occasions, violated the Virginia Rules of Professional Conduct concerning conflict of interest.
I allege County Attorney Napier, on as many as 374 occasions, violated his county employment agreement prohibiting practice of law with employers other than Warren County.
I allege the reason for County Attorney Napier's resignation is inseparable from the nearly simultaneous resignation of a female county staff member.
On the 20th of May, 2003, County Attorney Napier was appointed, notarized, and empowered as Special Power of Attorney, authorized to handle all aspects of negotiating the interests of former County Supervisor Ron Llewellyn's purchase of Swan Farm, a key property in the creation of the Leach Run Parkway right-of-way. Ron Llewellyn and his wife authorized County Attorney Napier to serve as "[...] our true and lawful attorney-in-fact (hereinafter referred to as "my attorney"), who is hereby authorized for use and in our names individually and for and on behalf of Swan Farm [...]". The document continues with a long list of Napier's duties when acting on behalf of Ron Llewellyn who, nominated by Councilman Holloway, now sits on the EDA Board of Directors. (I have provided each Council Member a copy of this Special Power of Attorney.)
In his letter, Mr. Napier implies all of his private practice legal services were limited to 'pro bono' services to a deserving cause, Habitat for Humanity. Regarding Swan Farm, did Mr. Napier perform these myriad legal services for Mr. Llewellyn for no fees as his October letter suggests? Perhaps Mr. Napier's Federal and State income tax returns will provide the answer?
Let us examine another example of Mr. Napier's lucrative real estate private practice.
In May of 2006, Janie Johnson wrote her Last Will and Testament, witnessed by Kimberly Athey, law partner with Pond, Athey, Athey, and Pond. In the will, Mr. Napier was named as a 10% beneficiary of the Johnson estate at 18 Charles Street. Mr. Napier was also named as Executor.
It is unclear if Mr. Napier is related to Janie Johnson, who died in February, 2008. Mr. Napier collected $10,000 from the sale of 18 Charles Street, plus, as Executor, he paid himself legal fees and expenses of $15,276.85, including an $8,800 repayment to himself for paying the funeral bill. The Commissioner of Accounts audit forced Mr. Napier to return this $8,800 to the estate because, as it turns out, apparently, someone other than Mr. Napier actually paid for the funeral.
Mr. Napier was full-time County Attorney for a period of 8 years and 1 month. Representing as many as 374 private practice clients means, on average, once a week, every week, for 8 years, Mr. Napier was privately employed to practice law. The fees Mr. Napier collected for these services remain largely unknown.
Perhaps the Internal Revenue Service and the Virginia Bar Association will now become interested in Mr. Napier's situation?
I suggest the Town Council delay installing Mr. Napier as Town Attorney until these allegations are resolved.
Tuesday, October 11, 2011
Tonight I spoke to the Front Royal Town Council concerning conflict of interest. Please feel free to forward this email to your contacts. These are my remarks:
Mr. Mayor, Councilmen,
Real estate development, speculation, and exploitation is by far the largest industry in Front Royal and Warren County. Our elected leaders offer a rich vein of material to support the belief that our area is controlled by people, whether in or out of office, with an ethical blind spot. The reappearance in office of the same old leaders as well as the ever-present prominence of a single law firm, resurrects for the public the picture of back-slapping Good Old Boys in control. On the recent appointment of yet another old leader to high office, one of your colleagues was quite right to ask whether the council couldn't have found someone else, someone new.
As a member of the Virginia Bar Association and an Officer of The Court, Town Attorney nominee Douglas Napier is subject to the Virginia Rules of Professional Conduct, specifically Rule 1.10 -- the general rule of Imputed Disqualification; Rule 1.11 -- which covers Special Conflicts of Interest for Former and Current Government Officers and Employees; Rule 1.7 -- the general rule on Conflict of Interest, and Rule 1.9 -- Conflict of Interest with Former Clients. I have provided each councilman a copy of these Rules. (reproduced below following these comments)
As County Attorney, it appears that Mr. Napier violated the terms of his written employment agreement -- as indicated by courthouse records -- on as many as 64 separate occasions, that Mr. Napier intermingled his part-time private legal practice with his full-time public office position of County Attorney. Many of Mr. Napier's private clients had official business before Warren County, including the Board of Supervisors where one of his private practice clients, Supervisor Ron Llewellyn, was seated. It appears Mr. Napier did not, as required by the Rules, fully disclose and notify the affected parties of the full role he was playing. Nor, as required by the Rules, did he obtain from all concerned parties their written permission for him to become privately employed and/or continue his joint representation. Where is this record?
Moreover, with Ron Llewellyn's private lawyer, Doug Napier, as Town Attorney, Front Royal will become one side of an apparent special interests triangle.
The second side of this triangle includes 3 elements:
(1) the law firm of Pond Athey Athey & Pond, Mr. Napiers' most recent private employer which includes State Delegates Clay Athey and Todd Gilbert;
(2) Ron Llewellyn, the client himself, whose Senary/Heptad LLC interests can be dramatically affected by town and county decisions;
(3) Warren County, Mr. Napier's public office client of more than 20 years.
The third side of the triangle includes 2 elements:
(1) The Economic Development Authority which is assisting the Town in getting the right of way for Leach Run Parkway, a development of importance to Mr. Llewllyn's interests;
(2) and the Senary/Heptad client, Ron Llewellyn, again, who sits on the EDA Board of Directors.
Is it needless to point out Ron Llewellyn occupies a place on all 3 sides of this conflict of interest triangle?
With regard to the circumstances surrounding Mr. Napier's abrupt resignation in 2006 as Warren County Attorney; if those circumstances were sufficient to motivate demands for Napier's resignation from public office, do the members of the Town Council consider these circumstances have no bearing on his employment as Town Attorney?
I submit for your consideration Mr. Napier is not the best choice to become Front Royal Town Attorney. For the sake of maintaining public confidence in a local government of sound appearance, find someone else, someone new, someone without such history and associations.
In conclusion, let me add this: by campaigning for the seat of Supervisor formerly held by Ron Llewellyn, Vice Mayor Chris Holloway now finds himself in the curious position of simultaneously advocating the interests of Warren County and Front Royal, two governments not known for their cordial acceptance of each others views. Is it fair to ask Mr. Holloway to resign from one or the other activity? When straddling the fence it's difficult to determine which side you are on.
Conflict Of Interest - Virginia Rules of Professional Conduct
Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
(a) A lawyer who holds public office shall not:
(1) use the public position to obtain, or attempt to obtain, a special advantage in legislative matters for the lawyer or for a client under circumstances where the lawyer knows or it is obvious that such action is not in the public interest;
(2) use the public position to influence, or attempt to influence, a tribunal to act in favor of the lawyer or of a client; or
(3) accept anything of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing the lawyer’s action as a public official.
(b) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the private client and the appropriate government agency consent after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter; or
(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, mediator or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
(f) As used in this Rule, the term “confidential government information” means information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.
Rule 1.7 Conflict of Interest: General Rule
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another existing client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Conflict Rule 1.9 of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless both the present and former client consent after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to or gained in the course of the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client
Rule 1.10 Imputed Disqualification: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.6, 1.7, 1.9, or 2.10(e).
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1. 6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The imputed prohibition of improper transactions is governed by Rule 1.8(k).
(e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
Thursday, September 29, 2011
Like the mythological Greek monster, the many-headed Lernaean Hydra (cut off one head and two more grew back) the Good Old Boys are at it again.
Today's NV Daily article, "Veteran attorney takes town spot" demonstrates our politicians penchant for cronyism.
I beg the question, “How does the Attorney-Client Privilege conflict Napier’s public service position as Town Attorney representing Front Royal interests and his private legal service as Registered Agent for multiple companies with official business before the Planning Commission, the Town Council, and the Economic Development Authority?" Mr. Napier’s client, former County Supervisor Ron Llewellyn, currently holds a seat on the Economic Development Authority.
On-line documents on file with the Virginia State Corporation Commission indicate Douglas Napier, while employed as Warren County Attorney, and in violation of his employment agreement with the County, was providing private legal services involving former Supervisor Ron Llewellyn’s private sector actions as a Developer of real estate projects located within Warren County and Front Royal, specifically the former Swan Farm LLC development (now replaced by Heptad LLC) that borders the proposed Leach Run Parkway, an area now having business before Town Council and the Economic Development Authority. I remind you Mr. Napier’s client, Ron Llewellyn, currently holds a seat on the Economic Development Authority.
The Leach Run development area is a plan to bring the community its first large-scale planned neighborhood. Napier was SCC Registered Agent for Llewellyn's now defunct Swan Farm LLC venture and is currently SCC Registered Agent for Llewellyn's new Heptad LLC.
Also during his tenure as County Attorney, and in violation of his employment agreement with the County, Napier was, and is, the Registered Agent on file with the State Corporation Commission for Ron Llewellyn's Catlett Road LLC (now Senary LLC) development which is seeking Town water and sewer service declined by the previous Town administration.
Napier’s job as Town Attorney is to provide legal advice to the Planning Commission, the Town Council, the Economic Development Authority, and other Town officials. How many hats will Napier wear? As Town Attorney will Napier stop legally representing his lucrative real estate private practice that includes acting as agent of record for many of developer Ron Llewellyn's Limited Liability Corporations?
Compounding the conflicts of interests issues, consider Napier's legal role for the past few years as an attorney working for Pond, Athey, Athey, & Pond, one of the largest local law firms that is well known for representing developer real estate interests before local government agencies throughout the greater Shenandoah Valley area. How will Napier separate his personal knowledge of insider information from both sides of these Town/Developer legal fences?
Will Mr. Napier need to recuse himself for any and all business brought before the Town of Front Royal by his former law firm, which would include State Delegate Clay Athey's new law firm partner Todd Gilbert? What safeguards protect the Town of Front Royal and its citizens from potential conflicts of interest between Napier and his former employers?
When Mr. Napier abruptly resigned as Warren County Attorney, his vacated position was filled by Mr. Blair Mitchell, former Town Attorney for Front Royal. And now that the Town Attorney position is vacated, Mr. Napier, the former County Attorney, has become the new Town Attorney.
Did Napier and Mitchell just swap jobs? The local political scene becomes curious-er and curious-er... the more things change, the more they stay the same.
The present Town Council once again demonstrates their commitment to cronyism. Napier's return as Town Attorney signals a Good Old Boy continuation of conflict of interests centered with Good Old Boy developers. The Good Old Boys must be very happy with this chain of events. The whole team is back in action.
Thursday, December 10, 2009
BOARD OF SUPERVISORS PUBLIC HEARING - DISSOLUTION OF DSS BOARD
STATEMENT TO BOARD BY BILL PIERCEALL
DSS Board Guilty of Looting Warren Coffers?
Chairman Fox, Members of the Board, Friends,
The Warren County Board of Supervisors voted unanimously to hold a Public Hearing on 15 December to consider dissolving the DSS Board of Directors. I ask that this statement in its entirety become a part of the Public Hearing record.
Principles of good governance demand that, at their last meeting on December 17th, DSS Board members repudiate their recently approved employment agreement for Director Ron King, thus removing the unseemly financial burden imposed on Warren taxpayers.
Troubling questions surround the new agreement. The old 1999 Employment Agreement, simple, straightforward, and in effect for 10 years, barely covered a single typewritten page; the new agreement covers 7 pages and is littered with a mine field of fiduciary penalties against taxpayer interests. Copies of both documents are attached for your inspection..
FRAUD AGAINST TAXPAYERS?
There are moral, ethical, and even legal questions concerning the content and timing of this employment agreement. To the citizen on the street it can only appear as an unjustified award, a windfall for an Agency employee whose work has been shown to be inadequate by two separate studies. And, given the extravagant benefits therein, it will be seen as an effort to make the dissolution of the DSS Board so financially punishing of the taxpayer that the Board of Supervisors will not dare take such a step. In this, the DSS Board has violated public expectations of good governance and fiduciary responsibility.
WHOSE "CODE OF ETHICS" WAS FOLLOWED?
Since the DSS Board has given no indication of acting on the recommendation of the Springsted Report (commissioned by the Board of Supervisors) to establish a Code of Ethics or a Code of Conduct, I will turn to The Rotary Club, a service organization. To borrow from the Rotary Club philosophy, did the employment agreement accomplish "service above self"?
1) Is it the truth?
2) Is it fair to all concerned?
3) Will it build good will and better friendships?
4) Will it be beneficial to all concerned?
Who could apply the "4-Way Test" to Director King's employment agreement and answer even a single question with an unqualified "YES"?
DSS BOARD LIABLE ?
The Board of Supervisors appoints and empowers members of the DSS Board with delegated, well defined, limited authority to act as its agents to represent the best interests of Warren taxpayers. The duties, powers, and responsibilities of the DSS Board are given within the Board By-Laws. Basically, the DSS Board members are charged with supervising the Director and the Department of Social Services.
Whenever a Board member acts in bad faith or injures the public trust with abuse of power, they expose themselves to assuming a personal liability for their action. This could result in Mr. King's new employment agreement's $120,000 severance pay award becoming due and payable by the DSS Board members themselves. That would be about $30,000 paid out of pocket by each DSS Board member who voted to approve.
NOTABLE FAILURES - ACTION PLAN - IMPLEMENTATION PLAN - 10-YEAR STRATEGIC PLAN :
The QMR Report and the Springsted Report must be addressed quickly, thoroughly, and with an unwavering focus on specific corrections and recommendations.
In my opinion, the DSS Board and Director King submitted an unresponsive and inadequate Action Plan in response to the 55 problems within DSS as identified by the QMR Report.
In my opinion, the Board and Director were even less responsive when drawing up an Implementation Plan in response to the findings of the BOS-commissioned Springsted Report; they tackled barely half (16) of the 34 problems identified in that report.
Examples of inadequate managerial and administrative capabilities are demonstrated by the State QMR Report, which identified no fewer than 5 repeat problems in Warren County Child Protective Services, unresolved from the previous State DSS evaluation. Proper Board oversight would have ensured these problems were corrected. That these problems were not addressed suggests that this Agency can not formulate an adequate, responsive Action Plan.
In my opinion the DSS Board and Director should possess the necessary "in-house" skills to create and implement the 10-Year Strategic Plan recommended by the Springsted Report. The DSS Board Chair professes to have accomplished 20 years of DSS hands-on experience, the Director claims 30 years experience, and the Administrative Manager has 35 years experience. Instead, this pool of experience decided they should seek funding from Warren County to pay an outside consultant to create a Strategic Plan. I find this unacceptable.
WHY CREATE A NEW EMPLOYMENT AGREEMENT NOW?
First, there can be no consensus that this agreement was warranted by distinguished service and performance. Eighty-five identified problems resulting from two independent evaluation reports, QMR and Springsted, provide a benchmark to measure with our yardsticks.
On 15 December the Board of Supervisors will conduct a public hearing to dissolve the current DSS Board of Directors. I anticipate that the Board of Supervisors will replace the DSS Board by an advisory body. Once this has been accomplished, an in-depth review of the Director's past administrative and managerial performance should be undertaken to determine his future as Director.
I believe the DSS Board and Director attempted to hide the new employment agreement from public review by declaring the agreement was to be placed in the Director's personnel file. They wrongly believed everything placed in someone's personnel file is not subject to discovery by submitting a Freedom Of Information Act request. At the 17 November meeting of the Board of Supervisors, in response to a question from Supervisor Traczyk, County Attorney Blair Mitchell advised that employment agreements are public records.
Again, the citizen on the street might well ask whether it is possible that the new employment agreement was created because the DSS Board and Director believed they could use it as leverage to keep their jobs and control of the Agency if they agreed to void the agreement?
A RECITATION FROM PUBLIC RECORDS - AND A HISTORY OF DECEPTION
The history of the Agency Director is peppered with wrongful termination lawsuits, high employee dissatisfaction, dissention, and high turnover. His previously unknown tenure as Director of Caroline County DSS nearly 20 years ago, according to court records, resulted in at least 2 successful wrongful termination lawsuits against him by former employees McLean and French.
The Caroline DSS Board meeting minutes tell us that DSS employees and managers submitted a four page list of problems and grievances seeking relief. Warren DSS employees have written anonymous letters of complaint to the Board of Supervisors.
The Caroline DSS Board meeting minutes also tell us of DSS employee complaints to the Equal Employment Opportunities Commission concerning Caroline DSS personnel issues during King's tenure as Director.
Public records indicate Mr. King resigned as Caroline County DSS Director after serving two years.
When Mr. King applied to Warren County for the position of Director in 1999, he apparently 'forgot' to disclose these Caroline County lawsuits and his subsequent resignation in his resume and application. I believe the applicant interview panel was misled and deceived by this omission of fact. A former Supervisor and member of the job applicant interview panel as well as a second DSS Board member also on the panel have stated this information was not made known to them by Mr. King during the interview process.
As Director of DSS Warren County, Mr. King lost a lawsuit for wrongful termination filed by Ms. Fedorko.
The Warren County Courts have responded to Grand Jury and Special Grand Jury investigations by directing oversight improvements in lieu of criminal charges. DSS Board Chair Mathews claims the grand juries exonerated DSS of all allegations of criminal wrongdoings. The language in the grand juries reports do not support Chair Mathews claim of exoneration.
Mr. & Mrs. Holben filed a lawsuit against Warren DSS seeking the source of malicious accusations.
Ms. Selover filed a lawsuit over FOIA violations that is now waiting publication of the Judge's verdict.
Former employee Ms. McClosky has filed a wrongful termination/fraud against taxpayer lawsuit.
In addition, there are allegations that remain to be addressed by a forensic financial audit, including examination of the many credit card accounts created and used by the Director and paid for with county, state, federal and private funds.
I believe deception continues to this day. The most recent example may be found with the failure to promptly and publicly disclose the approved employment agreement when it was voted approved during the open Board meeting 20 August 2009. According to Code of Virginia FOIA law § 2.2-3707.F. At least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body.
The employment agreement was not made available in compliance with § 2.2-3707.F. Employment agreements are not exempt. Repeating my earlier statement, "At the 17 November meeting of the Board of Supervisors, in response to a question from Supervisor Traczyk, County Attorney Blair Mitchell advised that employment agreements are public records."
In my opinion, Director King's belief that his employment agreement would remain secret was evidenced by his misguided and wrongful refusal to share it with the public openly and freely.
STATE QMR REPORT AND SPRINGSTED REPORT AT ODDS WITH DSS BOARD CHAIR MATHEWS
DSS Board credibility has deteriorated into shambles, revealing their supervision of the Agency as little more than mutual back slapping coziness.
The Springsted Company and the State QMR combined to inform Warren County taxpayers of more than 80 management and administrative problems affecting DSS processes, the DSS Board and the DSS Director. Eighty identified problems conflict with DSS Board Chair Mathews statements of fiction telling us what a wonderful job Director King has done. Chair Mathews claims the Board knew about these problems before QMR and Springsted conducted their investigations. If this is true, we must ask why the DSS Board remained unresponsive and did not initiate corrective actions on a single identified problem prior to QMR and Springsted, especially the FIVE repeat findings concerning Child Protective Services?
WHO BENEFITTED BY THE NEW EMPLOYMENT AGREEMENT?
No benefit to taxpayers who stand to be burdened by up to $120,000 of new debt approved by the DSS Board.
No benefit to governance; problems identified by QMR and Springsted remain without effective remedies.
No benefit to DSS staff; they have not had a pay increase for 2 years and grievances remain unresolved.
No benefit to DSS client services; which may have actually been harmed by diverting budget funds to pay severance.
No benefit to anyone, with one exception ...DSS Director King. Is this our example of "service above self"?
How is it possible that any 'watch dog' and prudent DSS Board could even think of renewing Mr. King's contract at this time, and with such generous terms to boot? That it has done so leaves the impression that these members are either wildly out of touch with present developments and public controversies, or willfully seek to thwart the Board of Supervisors by making the DSS Director's dismissal too expensive for the community to bear. In either case, how in good conscience can this subordinate body, dependent as it is on Federal, State and County taxpayers, so willfully disrespect and challenge the elected representatives of the people? 'Good governance' is the victim here, as is the people's faith in just and prudent county government.
REPUDIATION AS REMEDY ?
While researching information for this presentation, I happened across the legal term "repudiation". Here are some definitions and meanings attached to "repudiation", followed by action possibilities:
Repudiation: An adequate and effective renunciation and repudiation by a person of his prior unconscionable or wrongful conduct. This example of a repudiation action should originate by the DSS Board members, voting to overturn their previous vote on the new employment agreement with the Director. DSS Chair Mathews or Supervisor Glavis should add this item to the next DSS Board Agenda for a vote, allowing the DSS Board to reverse its decision with one or all of the following reasons:
· they did not fully understand the terms of the agreement.
· they believe the approved agreement is not the same as what they thought they were approving.
· they believe the agreement is different or has been altered since approval.
· they were not allowed sufficient time to thoroughly review the agreement prior to approval.
· the actual agreement was misrepresented during review.
Repudiation: The refusal of public authorities to acknowledge or pay a debt; refusal to acknowledge or pay a debt or honor a contract, especially by public authorities, as in repudiation of a debt by a city; rejecting or disowning or disclaiming as invalid.
· I suggest the County Attorney consider filing suit asking the Court to set aside the employment agreement for cause.
· The Board of Supervisors should immediately and publicly renounce and notify Director King the BOS will not neither accept, nor ratify the agreement.
· The BOS's repudiation efforts would be consistent with the best interests of Warren County taxpayers.
· Warren County should be able to muster enough minimum legal energy to request the Court to set aside this employment agreement. This could take some time, but an immediate request starts the clock ticking, placing the Director on immediate notice that his employment will end.
I am concerned that any delay by the Board of Supervisors in contesting this employment agreement in a court of law now that the agreement has become publicly accessible could be deemed acceptance by acquiescence.
Accordingly, I urge that the new DSS administrative authority, to be created by the Board of Supervisors, relieve the DSS Director of all previously approved duties and authorize the performance of a proper forensic financial audit of all Agency accounts, credit cards, and budget areas funded by local, private, state, and federal sources.
However, positive action must begin immediately. Delay will not improve Warren County's position.
P.O. Box 35
Middletown, Va. 22645