Wednesday, February 20, 2013

Judge douses Sun Valley legal blaze

Ruling on lawsuit for records request favors city

Express Staff Writer

Top: Dewayne Briscoe. Above: Jim Donoval

Saying the city of Sun Valley had done all that could reasonably be expected of it, 5th District Judge Jonathan Brody last week denied attorney Jim Donoval’s request that the city be compelled to produce bill payment authorization forms from 2010 and 2011.

Donoval, husband of and a former attorney for former City Administrator Sharon Hammer, filed a lawsuit against the city on Aug. 20 claiming that original bill-paying forms within the city were destroyed and that forged copies were made to cover up the role of then-City Councilman Dewayne Briscoe in possible financial mismanagement of the city. Briscoe is now the mayor.

Donoval had made a request to the city on March 26 to obtain 42 bill payment authorization forms, called “yellow sheets,” dated between September 2010 and October 2011. According to city policy at the time, before payments were to be made, the forms were to be signed by former Treasurer and Finance Manager Michelle Frostenson, Hammer, then-Mayor Wayne Willich and a City Council member—in that order.

Donoval’s original complaint states that the city produced copies of only 25 of the forms and failed to provide the other 17 without any explanation for their “removal or destruction.”

“The city was supposed to produce 42 yellow sheets that had all four signatures,” Donoval said in an interview Tuesday. “There were multiple yellow sheets that former Mayor Willich and Ms. Hammer have said, in affidavits filed in the case, are forgeries. The city still has not produced any credit card approval forms with all four signatures.”

Boise-based attorney Kirtlan Naylor, who provides special legal counsel to the city, stated in a Sept. 11 answer to Donoval’s complaint that the city produced copies of all records that it found that were “responsive” to Donoval’s request. On Monday, Naylor declined to comment on the ruling, saying only that Brody’s opinion “says it all.”

The ruling, filed Feb. 14, states that Donoval presented evidence that the 17 missing yellow sheets “may have existed.” However, it states that because the city never formally “denied” Donoval’s public records request, the court cannot compel the city to produce the documents. The ruling also states that it does not appear that the city has purposefully withheld the missing sheets.

“It is unclear from the record whether the initial problems with providing all responsive documents [were] due to poor record-keeping on the part of the Defendant, ambiguous, confusing, or contradictory requests by the Plaintiff, or a combination of both,” the ruling states. “This court cannot compel the Defendant to make available documents it does not have.”

According to the ruling, the court does not have the authority under the Idaho Public Records Law to order the city to “explain what happened” to the missing yellow sheets. However, the ruling added that if the city discovers that it has any more of the documents sought by Donoval, it must provide them.

Briscoe said in an interview Monday that he never altered any documents and that the “poor record keeping” referred to in the ruling occurred during Willich’s administration.

In an amended complaint filed Oct. 22, Donoval also requested that if the city does not produce the documents, the court issue a referral to the Blaine County Prosecuting Attorney’s Office for a “felony criminal investigation.”

The ruling states that the court has no authority under the Idaho Public Records Law to grant such a request.

Though Brody knocked down most of Donoval’s requests from the court, he did rule in his favor on one item.

“The Defendant has requested costs and attorney fees … claiming that the Plaintiff has frivolously pursued his request for documents against the Defendant,” the ruling states.

Brody denied the city’s request for costs and fees, stating that the “underlying basis” of Donoval’s action for production of public records was “not frivolous.” The city has already committed at least $15,000 to Naylor for defense in the suit, but Naylor has requested $5,000 more, which the City Council has yet to approve. For now, however, the mayor is pleased the case is over.

“Donoval’s reign of legal terror against the city is coming to an end as truth prevails in court,” Briscoe said Monday.

Brennan Rego:

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