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Topic: Peter Bade and Law Department in conflict-of-interest
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untanglingwebs
El Supremo

Councilman Neeley has good institutional memory as he confronted Peter bade. As Neeley remarked in a previous council meeting, the issue of the Chief Legal Oficer representing both sides was decided by a Federal Judge.




Here is the case:
December, 2006 :: Michigan Court of Appeals - Unpublished ...PEOPLE OF MI V. KIERRE SMART, 263435, 12/28/06. TRACHELLE C YOUNG V . FLINT CITY COUNCIL, 263310, 12/28/06. JEANETTE MEYER V. EST OF ...http://law.justia.com/cases/michigan/court-of-appeals-unpublished/2006/december/ - 72k - Cached - Similar pages



The Flint Journal Story:

City attorney, council members have heated debate at investigative hearing

Published: Tuesday, November 22, 2011, 10:06 PM Updated: Tuesday, November 22, 2011, 11:35 PM

By Kristin Longley | Flint Journal

FLINT, Michigan -- Flint City Council members and the city attorney faced off at the council's investigative hearing tonight, as City Attorney Peter Bade requested some witnesses not answer certain questions about the city's energy grant in public.

Bade several times throughout the four-hour hearing told council members that questions about the U.S. Department of Energy's termination of a $1.1 million grant would have to be asked in executive session, which would be closed to the public.

Bade said that because the city is appealing the termination, it is a legal matter and subject to attorney-client privilege.

Several council members were unhappy with that decision.


"What a waste of time," Councilman Michael Sarginson said. "We can't get nobody to answer questions... We are not getting information."

Councilman Sheldon Neeley requested that portions of the testimony be forwarded to a judge for a legal review.

"I believe Mr. Bade is seriously, seriously in conflict here," he said.


Bade said he doesn't have a problem with the questions council members were asking, but doesn't want them answered in a public setting.

"That would have a detrimental effect on the legal position of the city," he said.


Last edited by untanglingwebs on Wed Nov 23, 2011 6:00 am; edited 2 times in total
Post Wed Nov 23, 2011 5:29 am 
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untanglingwebs
El Supremo

From the Court of Appeals case:



"Defendant (Trachelle Young) argued and the Trial Court agreed, that when the CLO (Chief legal Officer) sues the City Council on behalf of the Mayor or some other entity within the City, a conflict of interest is created. The core of the argument is that the CLO cannot represent or direct the representation of the City if the CLO is bringing a lawsuit against the City, as such a situation would put the CLO effectively on both sides of the litigation."...

"As ClO, plaintiffs obligations include directing the legal affairs of the City, appointing all assistants, serving as the attorney for the City, directing the management of all legal matters in which the City is interested, and either personally or through assistants, representing the interests of the City in all actions or proceedings by or against the City or its officers and employees. At issue here is what happens to those obligations when the two principal entities within the City, the Mayor and the City Council , end up on opposite sides in litigation. Per MRPC 1.13, plaintiff represents the City itself, as an organization, rather than any of its component parts. reading the Rules and the Charter together, logically plaintiff cannot personally represent one entity within the City against another, because she cannot represent both parties. However, Plaintiff is still bound by her obligation to direct the legal affairs of the City, meaning both the mayor and the Council. The clear alternative is to select and retain independent legal counsel for both parties. Only by declining to personally represent either party, while in good faith choosing counsel for each can plaintiff comply with both the MRPC and the Charter."


Last edited by untanglingwebs on Thu Nov 24, 2011 7:10 am; edited 2 times in total
Post Wed Nov 23, 2011 5:51 am 
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untanglingwebs
El Supremo

Council reacted sharply when as Steve Montle ws called to testify, all three white male City attorneys (Bade Postulka, and kent) rose to sit at the table with him. Loyd was first to put it on the record that all three lawyers were defending Montle.

Neeley commented that he was aware a conflict was present and told Bade that an independent counsel should have been hired. "Your arrogance continues to embarass the City", said Neeley.

Bade kept raising the issue that the Department of Energy termination letter could not be discussed in public hearings and wanted to go into closed session.

Kincaid explained that Judge Fullerton had not addessed a closed session and objected to holding one at this time.

While kate Fields had testified she had not spoken to an outside attorney/investigator for the mayor's independent investigation, Bade did not allow any city employees to deny or confirm such conversations.

Neeley asked their attorney, Charles Forrest, how that information was privileged communication. Neeley stated he viewed Bade as the problem and asked that portions of the transcript be taken to Judge Fullerton. "How is it attorney-client priviledge if the attorney is not Montle's attorney", questioned Neeley.

Josh Freeman repeatedly raised the issue of attorney-client privilege and asked who could wave such privilege. Bade stated he represented the City as a Corporate Entity and did not have any bosses when it came to litigation matters.

Whe questioned why the matter was considered "confidential" when the Department of Energy had released the document as part of a Freedom of Information Act request, Bade's response was "the DOE doesn't contact me regarding a FOIA".
Post Wed Nov 23, 2011 6:28 am 
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untanglingwebs
El Supremo

Council referenced their role as one of fiduciary duties to the City and stated they felt the Chief legal Officer had a duty to also represent council.

When Neeley referenced a phone conversation to Bade regarding the DOE letter in which Bade denied knowing one existed, Bade responded to confirm the existence of the letter would be to breach confidentiality. Several on council expressed their opinion Bade had lied to Neeley and denied council their right to perform their fiduciary function.
Post Wed Nov 23, 2011 6:37 am 
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untanglingwebs
El Supremo

Neeley grilled Bade about the complaint filed in the Law Department that addressed the issues determined by the DOE as "valid and justified". The complaint was filed by the four former DCED employees; Carol Freeman, Glenda Dunlap, Karen Morris and Suzanne wilcox.

Bade would neither confirm nor deny that he was aware of the complaint, stamped as received by his department on May 12,2010. He stated it was part of a harassment and violence matter the employees had filed earlier against eason and had been assigned to Attorny Angela Watkins. Morris later testified that the Law department had not gotten in touch with her regarding the allegations.
Post Wed Nov 23, 2011 6:46 am 
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Dave Starr
F L I N T O I D

I always thought the city attorney represented the interests of the city, not the administration. I was wrong.

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Post Wed Nov 23, 2011 8:26 am 
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Adam
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quote:
Dave Starr schreef:
I always thought the city attorney represented the interests of the city, not the administration. I was wrong.


I'm sure the vast majority of cities in Genesee County, our state and country are far less corrupt than Flint.

If our City attorney is incapable of doing his job and representing the city I'm pretty sure the council could vote to remove him from office but since we don't really follow the charter anyways...

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Post Wed Nov 23, 2011 1:53 pm 
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untanglingwebs
El Supremo

Remember when Council tried to remove Trachelle Young and they could not.

Bade is one of the mayor's appointees. But then again his recent actions were outrageous!

However, in light of the Appeals Court decision that Young had, Council may be able to file a sustainable Attorney Grievance complaint against Peter Bade. Bade, according to this decision, clearly must represent the City Council as well as the administration.

I felt like Bade and his law department was behaving childish when the three rushed to the defense table to defend Steve Montle. Postulka kept his arms crossed most of the time. Were they trying to intimidate the council. If so, it did not work and only seemed tto infuriate council more.

From Page three of the Appeals Court decision sought by Trachelle Young:

"As CLO, plaintiff's obligations include directing the legal affairs of the City, appointing all assistants, serving as the attorney for the City, directing the management of all legal matters in which the City is interested, and either personally or through assistants, representing the interests of the City in all actions or proceedings by or against the City or its officers and employees. At issue here is what happens to those obligationswhen the two principal entities within the City, the Mayor and the City Council, end up on opposite sides in litigation. Per MRPC (Michigan Rules of Professional Conduct)1.13, plaintiff represents the City itself, as an organization, rather than any of its component parts. Reading the rules together and the Charter together, plaintiff cannot personally represent one entity within the City against another, because then she would be acting in a fashion adverse to the interests of the other. Likewise, she cannot represent both parties. However, plaintiff is still bound by her obligation to direct the legal affairs of the City, meaning both the Mayor and the Council. Only by declining to personally represent either party, while in good faith choosing counsel for each can plaintiff comply with both the MRPC and the Charter."


In the hearings Bade was representing the Mayor by protecting the Mayor's political appointees.

Bade filed lawsuits against the Civil Service Commission and used Thomas Kent, his staff. Kent also represents the City in the Civil Service Commission hearing filed by City of Flint employees.

Bade filed for a hearing to stop the Council investigative hearings-was he representing the Mayor.?
Post Thu Nov 24, 2011 7:40 am 
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untanglingwebs
El Supremo

Bade is hoping a EFM will stay the proceeding


Flint city attorney on investigative hearing: 'This was not a reasonable request'
Published: Tuesday, November 22, 2011, 6:51 PM Updated: Tuesday, November 22, 2011, 8:23 PM
By Kristin Longley | Flint Journal

FLINT, Michigan -- Flint City Attorney Peter Bade said the city filed for a restraining order against tonight's Flint City Council investigative hearing on grant spending because of the large volume and scope of the requested information.

Bade said parties would normally have about a month to prepare for such a hearing, but he received about 48 hours notice.

Flint Mayor Dayne Walling, represented by city attorneys, filed today for a temporary restraining order against the council hearing, which led to Judge Judith Fullerton placing a number of limitations on the proceedings, council members said.

Bade said the Michigan Constitution guarantees a fair process for such proceedings.

But because of the timeline of the subpoenas issued late last week, the city would not have been able to gather the "tens of thousands" of pages of documents requested by the Flint City Council, Bade said.

"This was not a reasonable request," Bade said. "It makes me wonder if this is a circus designed to make speeches and accusations."

Bade said he's not opposed to the council holding the investigative hearing "as long as the purpose is clearly stated and there is a reasonable opportunity to respond."

The hearing started at 6:30 p.m. this evening. No witnesses had been called as of 6:50 p.m. as council members discussed the guidelines for the hearing.

The council called for the hearing after learning the U.S. Department of Energy terminated the city's $1.1 million energy grant for "mismanagement" federal officials cited in an Oct. 27 letter to the mayor.

The administration is appealing the grant termination.



numero407 November 22, 2011 at 7:06PM
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While Rome , I mean Flint is burning they are playing fiddles.

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gogroup November 22, 2011 at 7:28PM
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The Flint City Council must be crazy. They can't reasonably think they can subpoena the City Attorney and expect him to disclose privileged "Attorney - Client" communications and work product in an open investigative hearing. Pure grandstanding.

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shanedr November 23, 2011 at 7:41AM
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Attorney - Client privilege does not apply. The city is supposed to operate openly as are it's officials. Nothing about the city is supposed to be hidden. There is no "classified" information.

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90220 November 22, 2011 at 8:05PM
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So, who is paying for Peter Bade to represent Dayne Walling?

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mccguy66 November 22, 2011 at 8:10PM
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I call for a random drug test of Pete Bade. I bet $50 dollars he fails it.

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Post Thu Nov 24, 2011 8:17 am 
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untanglingwebs
El Supremo

Bade's ego deflated like a pierced balloon after Neeley hit him with documents showing Karen Morris, Glenda Dunlap, Carol freeman and Suzanne Wilcox had filed a complaint with Peter bade's office in May of 2010 detailing problems and conflicts of interest in the department of energy grant. Three have been fired, although they have now filed whistleblower lawsuits, and Carol Freeman retired for what she refers to as a "constructive discharge".

The department of Energy determined the allegations were valid and justifiable.

JUST WHO IS BADE'S CLIENT.

(WJRT) -
(11/23/11) - It was a somewhat heated investigative hearing in Flint Tuesday night.

City council members were questioning federal energy grant spending.

The Department of Energy pulled a grant, worth more than $1 million, alleging the money had been misused.

Five people were questioned Tuesday night.

"I protected the secret of my client," said city attorney Pete Bade.

Bade defended his decision to not immediately divulge the grant termination letter because the city was in the process of appealing federal findings.

"I have no problem, as a lawyer, protecting the confidences of my client," said Bade.


Kate Fields also answered questions from council members.

She landed a $250,000 consulting contract to prepare an energy conservation strategy plan.

"To the best of my knowledge, the city did little or next to nothing to actually follow and implement the plan. During the time period, however, when the plan and projects were supposed to be implemented, numerous city employees were charging their payroll costs to these grant funds," Fields said.

Steve Montle, the city's green coordinator, was one of them.

He testified he received about half of his salary, for about 10 months, while working on grant related projects. He makes $60,000 a year.

"How many of those projects were completed to date," asked council member Sheldon Neeley.

"I believe the answer is none," Montle said.

"I realized that we had a lot of delays, but yes, I was surprised when it was suspended," said grant administrator Tracy Atkinson.

Atkinson also said she was "frustrated" working on the grant because she couldn't get information needed from city officials in a timely fashion.

"I noticed, after review of a number of the documents that there were some irregularities, some violations of other federal regulations as well as some potential conflict of interests," said former city employee Karen Morris.

Morris testified she filed a complaint with the city about that in May of 2010 and also alerted the Department of Energy.

Morris filed a whistleblower lawsuit against the city.

She was fired November 11th.


The city is appealing the grant termination and the DOE's demand that nearly $215,000 be repaid.

The hearing was adjourned after the four hour time limit.

At last check, no date yet for the hearing to continue.
Post Thu Nov 24, 2011 8:32 am 
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whiteknight
F L I N T O I D

The city attorney acting as private council for administration is nothing new and Bade is not the first as has been documented here and brought to local courts. In my opinion there are 2 things that need to happen.
1. There needs to be a request made for an Attorney General’s opinion on this matter. I believe that this is clearly defined in the law now that representing a client against another client is obviously a conflict. Furthermore, giving information to a member (or members) and refusing to divulge and/or delay the same information to the other members who are the elected and/or appointed, representatives of said client. Constitutes (in my opinion) a serious and quite likely highly illegal, breach of the duties of the legal representatives involved, both as individuals and as a group.
2. The City charter needs to be amended to make the City Attorney an elected position and not an appointed position by the acting Mayor. The simple fact that the acting Mayor could remove the appointed City Attorney “leaves the door open” for a skewed sense of who they work for. Although again the conduct rules are very clear on how legal representation should act (i.e. they should recues themselves and their representatives from any involvement). This would remove the “apprehension” of losing their job from one person (the acting Mayor) and shift it to the citizens (the true client) in the form of a recall and/or election, as it should be.
Post Thu Nov 24, 2011 10:51 am 
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Adam
F L I N T O I D

quote:
untanglingwebs schreef:
Remember when Council tried to remove Trachelle Young and they could not.


No? I do remember Williamson only having a deputy police chief so the council couldn't remove him.

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Post Fri Nov 25, 2011 11:36 am 
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untanglingwebs
El Supremo

Council took Trachelle's offices, cut her staff and her funding for outside attorney's, threatened to hire a full time attorney of their own, threatened to take the law library , filed a Attorney Grievance complaint against her (which failed) , and tried to remove her from offfice.

He named Gary Hagler to the position of Police Chief, but Hagler wanted to protect his pension because of his young family and only took an interim position remaining. I believe the Deputy Chief position was eliminated.
Post Fri Nov 25, 2011 2:39 pm 
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untanglingwebs
El Supremo

The City Attorney is one of the mayor's appointed positions. Council has to raise some strong issues to get an appointee removed.
Post Fri Nov 25, 2011 2:40 pm 
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Adam
F L I N T O I D

quote:
untanglingwebs schreef:
Council has to raise some strong issues to get an appointee removed.


I thought the charter said a two thirds majority was all that was required. Didn't that work to get rid of an ombudsman?

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Post Fri Nov 25, 2011 3:31 pm 
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