Wednesday, September 15, 2004

Simon vs. Hall intensifies

Mayor seeks ?criminal? prosecution of City Council president

Express Staff Writer

Although they sit elbow-to-elbow at Ketchum City Council meetings, Mayor Ed Simon and Council President Randy Hall are entangled in a bitter legal struggle initiated by the mayor that would prosecute Hall as a criminal.

At issue is whether Hall, 45, can serve both as a member of the City Council and as an on-call paid volunteer firefighter for the city of Ketchum, who?s paid $8 per call.

Hall has refused to resign either post, although he avoids voting on matters involving the fire department.

City Attorney Ben Worst, appointed to the post in April by Simon, ratcheted up the dispute by asking Blaine County Prosecutor Jim Thomas in a Sept. 3 letter to seek appointment of a special prosecutor to charge Hall with a criminal violation under an obscure Idaho law, ?Doctrine of Incompatibility and Usurpation of Office.?

Hall?s attorney, Ned Williamson, who also is the city of Hailey?s longtime city attorney, said he?s been ?relieved to hear? informally from the county prosecutor?s office that it won?t seek a special prosecutor as requested by Ketchum.

Assistant County Prosecutor Tim Graves declined to comment, except that to say he?s never heard of a case of this sort being brought.

Hall promptly condemned Simon for engaging in a ?vendetta? against him and attempting to oust him from the City Council so he can name a successor to shape policy without questions.

?It doesn?t make sense that I or anyone serving their community could possibly go to jail,? Hall said of the attempt to prosecute him.

Hall explained if he resigns the council post, which pays $1,250 per month, to devote his time as a Ketchum Fire Department paramedic, Simon would use his authority to discipline or suspend him there.

The threat of prosecution immediately revived the mayor?s image for stormy personnel battles throughout his political career. Seeking to prosecute Hall is his fourth such donnybrook.

Simon was recalled from office as a Ketchum city councilman in 1992 after failing to obtain the dismissal of popular Police Chief Cal Nevland, who?s now retired. Shortly after being elected mayor in 2002, Simon attempted to hire Blaine County Deputy Sheriff Ron Taylor as Ketchum?s new assistant police chief and lost a court battle with Nevland that cost the city $65,000 in damages to Taylor. And he lost a lawsuit by the police department?s computer service contractor, Steve Linden, whom Simon fired for criticizing him. Settlement of the suit required the city to pay Linden?s legal fees and a letter of apology from Simon.

The unprecedented action against Hall began when he decided to keep both his council post and Ketchum fire department volunteer job, a decision Mayor Simon called ?disgraceful? because Hall had used public financial assistance to obtain a paramedic degree.

Simon thereupon instructed the city attorney to get an opinion from the Idaho attorney general on whether Hall had a conflict of interest.

In an Aug. 5 letter, Deputy Attorney General Brian Kane told Worst that ?in essence, the appearance of impropriety (by Hall holding both positions) is too strong to be remedied or ameliorated with a full disclosure and abstinence from voting situation.?

Continuing, Kane wrote, ?This situation may be ameliorated if the individual resigns from one of his positions and/or does not accept full-time employment as a paramedic.?

Otherwise, Kane wrote, ?it appears this individual may be in violation of Idaho Code 18-1359(d),? a misdemeanor that could carry no more than six months in jail and a $300 fine.

However, Kane did not recommend any action to the city attorney, such as seeking criminal prosecution. Attorney General Office spokesman Bob Cooper said Tuesday that Kane has not heard of any such prosecution being sought by Ketchum, although local conflict-of-interest litigation unknown to the attorney general could have occurred.

In an interview with the Mountain Express, Simon denied he instructed the city attorney to seek criminal prosecution of Hall and rejected Hall?s contention he?s engaged in a personal feud. He claimed the city attorney made his own decision to request a special prosecutor.

?I?ve not instructed the city attorney how to handle it,? Simon said. ?Do what you do to protect the city.?

When asked what threat to the city needs to be ?protected? from Hall maintaining both jobs, Simon said that ?any vote (by Hall) could invalidate actions of the City Council? and create ?potential for all types of claims. It?s rife with all sorts of claims of impropriety.?

And if no prosecutor is appointed, then what? the mayor was asked.

?The attorney general would take action on (sic) their own,? Simon said.

But that was disputed by attorney general spokesman Cooper, who said the state?s top law office does not automatically assume prosecutions, especially misdemeanors and doesn?t enforce local conflict-of-interest issues.

The city attorney responded to several messages Tuesday afternoon, saying ?no comment? to questions about whether he received instructions from the mayor on how to proceed with the case and what his next step would be if no special prosecutor is appointed,

Worst said he couldn?t comment because ?I don?t want to jeopardize the investigation.?

Curiously, after the first of three messages were left on the city attorney?s office voice mail on Monday and Tuesday, it was Simon who shortly thereafter called the Express reporter, saying the city attorney could not and would not comment on the matter, as well as hinting the letter to the county prosecutor might not be public record.

The Express reporter told the mayor the letter could not be considered confidential and the newspaper would challenge the city legally if it withheld it. Subsequently, a copy of the city attorney?s letter was obtained from Hall.

Apparently, the city attorney called Simon to report the Express was seeking comment.

Hall?s attorney, Williamson, immediately took issue with Simon on several counts.

Williamson said no city attorney ever undertakes legal action without consulting the mayor or council or both.

?I fully anticipate the mayor requested the city attorney to request a special prosecutor? to seek charges against Hall, an action Williamson characterized coldly as ?a misguided, inappropriate action with no factual or legal basis (that) is a waste of time, money and effort for political reasons.?

Williamson also said he?d never heard of anyone being prosecuted under the law cited by the Ketchum city attorney. In fact, he said his research indicates the law only applies to contracts.

Moreover, a similar issue arose in the city of Sun Valley, where Fire Capt. Blair Boand is a member of the City Council. Sun Valley City Attorney Rand Peebles said he wrote a memo in May ruling that no conflict of interest existed, citing the state?s Ethics in Government Act requirement for conflict disclosures as protection as well the minimal influence of a single councilman over policy.

Another example of a dual-job public official is incoming Blaine County Supervisor Tom Bowman, a firefighter.

Hall says that throughout Idaho, especially in communities with small populations, volunteer firefighters hold elected office.

As one elected official, who also volunteers as a firefighter, said, asking his name not be used:

?Mayor Simon is opening a can of worms. What would some of these small towns do if elected officials couldn?t serve as volunteer fire fighters or paramedics??

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