I might have told you that Duncan Fobes (recently appointed special prosecutor for Clallam County) was scheduled to talk (with me) last Tuesday afternoon. He called precisely on schedule following up on his request for “dialogue”. The call was brief and consisted of him abruptly advising that he had spoken with his “clients” (Clallam County) and that they were unwilling to give any consideration to my proposal to adjust the settlement compensation upward to fully reimburse me for legal fees incurred in the Cebelak/Public Records Act matters. That, you may recall, amounts to $54,000.
Your mail confirmed my suspicions that while the Board Minutes suggest Fobes was retained by the BOCC, he was in fact retained by Mark Nichols as a Deputy Prosecutor. (Reporting to Nichols instead of county commissioners)
Conflict of interest? Are you kidding? Nichols has deputized the same guy who has incorrectly advised Clallam County that the Cebelak/PRA settlement was not covered under the County’s risk pool coverage. I read the policies myself and I’m an expert (yes, and who has provided court testimony as an expert). The County has a strong legal claim to coverage (under risk pool) but it for reasons unknown has apparently declined to pursue it, or it has pursued it and been rejected by the insurer. The insurer for whom Mr. Fobes serves as lead counsel.
But this isn’t the center of the story. We are observing Mark Nichols (return) to his incompetent management of legal matters presented. I’m obviously biased but as a professional I don’t believe my request for $54,000 in additional insured compensation is an unreasonable request. Had it not been for disclosures by Ms. Barkhuis, I would never have known the County’s lawyers were repeatedly lying through their teeth as they lured me into a mediated settlement. But as we’ve discussed previously, a settlement is a contract, and a contract can be rescinded when it is induced by misrepresentation and fraud. Suffice it to say that many of the public records attached to Ms. Barkhuis’ recent Nissen affidavit had never been disclosed during case discovery. They had been unlawfully suppressed by Nichols and his gang of lawyer thugs. Only after Selinda began talking did the County realize its cover had been blown, causing the crooked legal team to surreptitiously transmit critical Barkhuis emails at the eleventh hour before the “final” papers were signed last July.
People need to pay attention to this! After seeing his last legal strategy blow up in his face – with me frankly saving face by entering into what you’ve aptly described as a “magnanimous” settlement, Nichols is right back to thinking he is smarter than a citizen who is only making reasonable pursuit of his rights. Nichols undoubtedly told Fobes to stonewall me, again opting for the County’s time honored tactic of dismissing reasonable grievances and applying attrition. If I want to pursue my case further, I’ve got to litigate. As far as Nichols is concerned, they conned me into a crooked deal now they can claim high moral ground by implying that I’m the bad guy for basically going back on “my word”. They want to hide behind their ill-gotten settlement contract and ignore the obvious unlawful acts that enabled it.
And as we’ve all seen, I’m the kind of guy that rises to the challenge of sleazeball lawyers like Nichols. Nothing personal, mind you, I am saying he is professionally a hack who hasn’t a clue about how to humanely address a situation where someone has a valid grievance. I’m pretty sure he hasn’t done the calculus yet on what might happen if I should (again) get through his technical defenses and reach the merits of my claims. If that were to happen, the Kitsap County Public Records Act case would be reopened and the County would be re-exposed to all the potential liabilities it was concerned about enough to beg for mediation. Only now, I have a recent letter from one of the Clallam County prosecuting attorney’s admitting in black and white that the County badly violated RCW 42.56. I can tell you the recent letter stand in direct conflict with the written contents of the County’s Mediation Statement written just before the May 2016 mediation. Sure, I have to invalidate the settlement release. But my very competent lawyer, without seeing all the evidence, thinks there is a reasonable shot. With favorable testimony from sympathetic County employees, the stakes really go up if I succeed in rescinding the settlement. It won’t cost me much to press the issue, but the County is going to have to go on red alert to respond to the threat. After seeing the multiple mistakes made by the PAO in the last go round, it is unlikely the County will be able to rely on its inexperienced staff attorneys to manage the risk. Nope, they have to bring in guys like Fobes who can run up a respectable tab responding to the painful discovery I intend to put the County through. Bottom line, Nichols is rolling the dice once again, betting taxpayer money that he will be able to hold me off. When he could instead, acknowledge the merits of my request, and get the County off the hook for a mere $54,000.
So Dale this is how the lawyer game is played in Clallam County. I’ve got until August to file with Kitsap County Superior Court to resurrect the dismissed PRA suit. After which the County will assert the settlement contract as a defense. Which I will contest of course, presenting the official record and supporting testimony establishing willful intent to unlawfully and fraudulently deprive me of public records requested in legal discovery. Here the burden will be on the County to establish their defense that the settlement agreement is binding. That will take some thought and some good legal work. And plenty of taxpayer dollars. Had the County written the settlement agreement competently, it would have required me to pay the County’s legal costs if they prevail in defending my action. However, the settlement provides for prevailing party legal fees only in actions initiated to enforce the provisions of the Agreement. This action isn’t initiated by the County and my action isn’t about enforcing contractual rights – it is about nullifying them altogether.
The law can be a chess game. You can see what I’m thinking and how I might approach the coming skirmish with Nichols and his band of obnoxious lawbreakers. (Which, if you look it up, fits within the definition of “crooks”). $54,000 and this whole looming debacle foolish investment in expanding the Nichols lawyer kingdom within County offices could be obviated. As a risk management professional – and especially after getting such a face and money saving deal to end the land use/PRA matters – I would fire any staff member who didn’t take the $54,000 option to end the exposure. It befuddles me to understand why the lawyers think the answer is to circle the wagons, bring in another unit of lawyer cavalry, and start firing off wasted taxpayer dollars as if they grow on trees. Who in this County, after all we have seen, thinks Mark Nichols has the ability to make wise decisions on matters like this?
So, for me – and again I’m obviously biased so factor that in – I think the commissioners should approve the “buyout”, have Duncan Fobes earn his money by drafting an effective settlement and release without resorting to legal shenanigans, and permanently begin saving on administrative and legal costs that are sure to be coming if I’m not backed off. They can complain all you want about me breaking my word, and reneging on the crooked deal I signed, or you can just look the voters in the eye and say it was the right thing, and the smart thing, to pay Lange the money (he earned) and refocus on stuff that is actually important to the people of Clallam County.
Stuff is cooking and I look forward to sharing all of it with you when time permits.