Update 4: On May 22, 2017, the Lincoln City Council approved an additional $15,000 to the city attorney’s budget, increasing the budget amount to $318,329. (Sources: Video and Agenda Packet, May 22, 2017, p. 52)
Update 3: According to the article “Probe puts Lincoln City in spotlight“, in the May 12, 2017 Newport News Times, Lincoln City has spent at least $112,121 on seven different law firms, for legal expenses in investigating and prosecuting Mayor Don Williams. The FY 2016 budget included $25,000 for the Poppe investigation, and an additional $5,000 to defend a Public Meetings violation lawsuit and a Public Records violation lawsuit, so the balance remaining of $82,121 was added to the FY 2017 budget in the graph below.
Update 2: The graphs below have been updated for FY 2017 and FY 2018. At the April 10, 2017 council meeting, Mayor Williams testified that at least $70,000.00 of taxpayer money was spent by Appicello on four different lawyers to investigate and prosecute Mayor Williams. Watch the video here. It appears only $25,000.00 of the $70,000.00 came out of the city attorney’s budget.
Update: On October 26, 2015, the city council authorized an additional $30,000.00 on Appicello, increasing his budget to $278,278.00. $25,000.00 of the $30,000.00 is for a secret investigation and prosecution of Mayor Williams. (Source: Agenda Packet, October 26, 2015, page 52).
On page 12 of FY 2016’s Adopted Budget it’s claimed the city attorney’s budget increased only 13.4% ($29,279) to $248,278. It actually increased 45.2% ($86,590) to $278,278 over the estimated expenditures for 2014/15 (see page 44).
Here’s a chart comparing the legal budgets of the cities on the Oregon coast with populations of 4,000, or more (normalized by population):
By normalizing by population, we can compare “apples to apples” by factoring in the size of the city’s population. For example, Newport’s population is 26% greater than Lincoln City’s, so we reduce Newport’s numbers by 21% (the inverse of 26%). This effectively allows us to see the legal costs “per resident”.
Here’s a chart comparing the total annual compensation for the attorneys for cities on the Oregon coast with populations of 4,000, or more (normalized by population):
Interestingly, only three cities have an attorney on the payroll: Coos Bay, Lincoln City, and Newport. Coos Bay’s attorney only works 17.5 hours a week.
And here is the same data, without taking the population size of the cities in account:
To see the Budget Committee discuss if we really need not only a full time city attorney, but a legal assistant for him, see 1296.wmv @ 1:31:00.
The Budget Committee voted to “de-fund” the attorney, but lost by just two votes. Those voting against de-funding included Dick Anderson, and Henry Quandt.
A secret 13-month Oregon Department of Justice (DOJ) criminal investigation, launched by Lincoln City City Attorney, Richard Appicello, against Mayor Don Williams, and one of his supporters, transparency advocate Ross Smith, has been dropped.
On September 28, 2016, DOJ Sr. Assistant Attorney General Matthew McCauley wrote Lincoln County District Attorney Michele Branam, stating “there is an insufficient factual basis to pursue criminal charges against either Don Williams or Ross Smith in this matter.”
The cases against Williams and Smith were dropped just one day after Smith wrote Lincoln County Circuit Court Judge Thomas Branford, alleging Appicello made numerous false statements against him in a July 20th letter to Smith, which Appicello admitted authoring.
The closing of the investigation marks the end to three failed attempts by Appicello to prosecute and discredit Mayor Williams, who was elected in a landslide in Nov. 2014, on a platform of providing affordable housing and job growth.
A previously undisclosed letter Appicello wrote alleging both Williams and Smith had committed crimes was released last week by the Oregon DOJ, in response to a Nov. 2015 records request made by Smith. Appicello sent the 5-page letter in Sep. 2015 to Ronald Bersin, Executive Director of the Oregon Government Ethics Commission (OGEC), charging Williams with criminal misconduct.
“Whether or not Mr. Williams will be criminally prosecuted (for official misconduct under ORS 162.415 for unauthorized release of confidential information) will be left to a special prosecutor” wrote Appicello. Violating ORS 162.415 is a Class A misdemeanor, carrying a 1-year prison term, and a $6,250 fine.
The document Appicello alleged was confidential was a 315-page ethics complaint Appicello had drafted against Williams, which was submitted to OGEC in Aug. 2015. Williams said he released the complaint to the press shortly after receiving it from OGEC, because he wanted to clear his name, and because an OGEC representative had twice told him he didn’t need to keep the complaint under wraps.
But Appicello claimed the ethics complaint should not have been disclosed arguing it contained “confidential executive session excerpts” of private city council meetings. Smith, a staunch supporter of Williams, then sent a 9-page letter to OGEC’s lawyers, and convinced them to release the complaint to the public.
Williams was cleared of the ethics charges by OGEC in Oct. 2015, in a unanimous 5-0 decision, with their lead investigator, Diane Gould, referring to Appicello as an “instigator” in the messy affair.
In Aug, 2015, the Lincoln City Council authorized a separate investigation of Williams, and hired an outside attorney, Russell Poppe, to interview dozens of citizens, including several of the mayor’s supporters. The 13-month investigation, costing taxpayers an estimated $50,000 or more, concluded last month on the condition that Williams offer an apology for “possibly” violating city council rules.
Afterwards, the city council voted 4-1 to keep all details of Poppe’s investigation secret, claiming attorney/client privilege. Williams questioned that claim since Poppe told the city council on Aug. 15th that he didn’t represent the City in any legal capacity, but was hired simply to investigate and present a report.
Later in Appicello’s letter, he turns his attention to Smith, who he charges with violating ORS 163.275, when Smith “attempted to coerce” City Recorder Cathy Steere by sending her a public records request for the ethics complaint in Sep. 2015. ORS 163.275 (Coercion) is a Class C felony, carrying a 5-year prison term, and a $125,000 fine.
According to Assistant Attorney General McCauley’s letter, Appicello had charged Smith with numerous crimes, including “criminal impersonation, stalking, coercion, solicitation, and the unauthorized practice of law.” Criminal impersonation (ORS 162.365), Stalking (ORS 163.732), and Solicitation (ORS 161.435) are Class A misdemeanors (1-year prison/$6,250 fine). It is unclear what the penalty is for the unauthorized practice of law (ORS 9.160).
The charges against Smith came just one month after Smith had filed suit against Lincoln City in circuit court in Aug. 2015. In his suit, Smith claims the city council frequently violated Oregon’s Public Meetings Law over the last 6 years, including holding 59 secret meetings, and discussing and deciding on forbidden topics.
Smith said he filed the suit “not only to protect our mayor, but to protect the rights of the 1,700 citizens who elected him, because I show the city council did not follow the law in filing the ethics charges, or authorizing the Poppe investigation.’’
Smith questions if the charges against him were due to his filing the suit. “Claiming my respectful records request was criminal coercion is beyond the pale. Appicello just cooked that up to try to silence me, since I was challenging his attempts to unseat our mayor.” Smith said.
This July, Smith filed a second suit against the City, claiming the city council has been violating not only Oregon’s Public Meetings Law, but the City’s own municipal code, for several years, by holding private interviews of applicants, and holding secret votes to appoint city councilors, planning commissioners, and others.
While the Court is expected to rule on the first suit soon, Smith submitted a binding offer last week to the city council to drop both lawsuits, if council “apologizes to Mayor Don Williams, the staff and the citizens of Lincoln City”, for having “possibly violated Oregon Public Meetings laws.” The city council rejected his offer, without discussion.
“I guess our city council would rather waste our money on attorneys, than admit they might have acted improperly” Smith said. “I just hope our voters will elect leaders that will work openly, and with each other, and our mayor, because that’s certainly what our citizens deserve after all this.”
Asked to comment on the DOJ investigation, Williams replied “I had no idea when the investigation began, who was accusing me, or what was being alleged. Frankly, I’m disgusted this was all done at taxpayer expense, because it was a complete waste of time for everyone involved.”
But in the end, Williams remains surprisingly optimistic. “I’m just thankful we can put this all behind us, and focus on addressing real issues, like my 6-point plan to build more affordable housing, which I campaigned on, and have been trying to implement since I was elected.”
The Lincoln City City Council has broadcast all of its meetings live, both on the local government access cable channel (Channel 4), and on their website. They have always re-broadcast their meetings on channel 4, as well.
But for some reason, Council has choosen not to broadcast their August 15th, 2016 meeting. Not only didn’t they broadcast it live on Channel 4, but they’ve chosen not to ever re-broadcast it, either. Why? Are they concerned about the public’s reaction to this meeting?
Here’s the video of the Council’s August 15, 2016 meeting:
At 8:21 in the video, the City Attorney, Richard Appicello, claims he’s recusing himself in regards the two investigations he’s instigated against Mayor Don Williams. But there is hard evidence that Mr. Appicello is still advising or assisting the City Council regarding these investigations. If that’s true, it would be a breach of the ethical rules that all attorneys must follow (Rule 4.1(a) of the Oregon Rules of Professional Conduct). Maybe an investigation is in order?
At the July 6, 2015 City Council meeting, Mayor Don Williams may have saved all the Councilors from being sued. How? By letting them know that the meeting they had just convened hadn’t been legally noticed.
See, the law requires “at least 24 hours notice”, but the City only provided five, so anyone can now sue the Councilors for having held an illegal meeting.
What many may not realize is that any Councilor that simply attends an improperly noticed meeting can be personally liable for up to $1,000.00, according to the Attorney General.
So why is the Mayor having to inform the Councilors of this fact? Isn’t that the City Attorney’s job?
What’s really nuts, is that this illegal meeting was called by City Attorney Richard Appicello to ask the City Council to clarify Councilor Roger Sprague‘s motion:
I move to authorize the city attorney [Richard Appicello] to disclose executive session discussion, confidential memoranda, and client confidences relating to the ongoing efforts to block, obstruct, or otherwise hinder VRD [vacation rental dwelling] accessory use enforcement, including but not limited to, June 8th, 2015 allegations against the city attorney. [1310.wmv @ 1:49:40]
Since Councilor Sprague didn’t specify who to disclose this confidential information to, Ross Smith sent the City a letter requesting that the information be released to “all interested parties”, including himself.
In Gordon Walker’s June 24 letter to the editor, he criticized Mayor Don Williams for allowing two citizens to criticize Lincoln City’s attorney, Richard Appicello, and demanded the mayor silence them. Isn’t it ironic that Mr. Walker criticized a public official for allowing citizens to criticize a public official?
The citizen’s complaints are shocking: Mr. Appicello kept Councilor Jim Davis and Mayor Williams from representing you, the people who elected them, by keeping the two from deliberating on the new VR [Vacation Rental] zones.
Even worse, Mr. Appicello kept all our city councilors from “ex parte” discussions about the zones with you, their constituents. Mr. Appicello did this by falsely interpreting the zones as requiring “quasi-judicial” hearings, when they were, in fact, simply “legislative” matters. This was highly unethical.
In fact, I’ve worked closely with several of our past city attorneys, and all cared deeply about the law. Not Mr. Appicello. In one instance, he insisted that police officers arrest citizens who didn’t show up at civil court. Some officers told him, “the law doesn’t allow us to.”
In another, he threatened a woman with a $26,400 fine for not being able to produce a profit and loss statement, something the law clearly doesn’t allow him to demand. Using that exorbitant fine as leverage, he convinced her into forgoing her vacation rental license.
No other attorney required approving every planning file request (they now take weeks, instead of minutes), reviewing every citation written, and every public records request received. No other attorney ever wrote their own citations, or even initiated enforcement matters at all. I’ve even heard Mr. Appicello’s threatened citizens with $300,000 fines.
While this is an excellent piece, Janell misspoke slightly in using the term “ex parte” in that context. As the matters under discussion (the VR zones) were “legislative” matters, all communications between the Councilors and their constituents was allowed, so referring to them as “ex parte” would be incorrect, as “ex parte” is generally used to refer to discussions in relation to “quasi-judicial” hearings.