West Buechel – Brazen Illegality

Re-posted from Law Fox: West Buechel – Brazen Illegality

On Friday Rick Richards, Mayor of West Buechel, released a list of checks the City had issued during the month of August, 2016. One of these checks was in the amount $10,350, for “Legal  Services – Admin,” but the name of the payee was intentionally omitted ( “xxxxx” ).

In a breathtaking display of bluff, bluster and bravado last night, Mayor Richards and his two primary co-conspirators, City Clerk-Treasurer Kim Richards and Mayor Richards’ long time personal attorney (who is also City Attorney), John Casey McCall, stonewalled the West Buechel City Council and refused to disclose to whom and for what purposes this $10,350 check was issued.

Richards’ plan of bamboozlement hinges upon an erroneous assertion that a city’s settlement of legal claims against it can be kept secret, even from the City Council. Under Kentucky Open Records law, such use of public funds is not exempt from disclosure and will not remain hidden for long.

Given the amount of the check, in excess of $10,000, if there is anything significantly crooked about the secret payment, it might easily be classified as a Class C Felony.

West Buechel: The Cop Who Wasn’t There

In Rick Richards’ second week in office as the newly elected Mayor, in January, 2015, the employment of a probationary West Buechel Police Officer was terminated by him, for reasons unknown.  It’s not really necessary to have cause to terminate a probationary Police Officer. The Police Officer’s Bill of Rights does not apply to probationers during the first six months of employment.

Nonetheless, this particular Police Officer felt aggrieved and claimed the firing was retaliatory against her efforts to expose criminal wrongdoing by another Police Officer. In addition, she claimed sexual harassment and she threatened to sue the City.

So, Mayor Richards settled her claim. See: Can a mayor compromise a lawsuit? 

This is how the settlement was structured.

(1) She was given a check for the difference between the unemployment compensation she actually received and the net pay she would have received had she remained on the payroll from January to the middle of April, 2015.

(2) She was put back on the payroll at full pay, as if she were a genuine City employee, through the end of 2015. She never actually reported for work during that time.

(3) She received full health insurance coverage paid for by the City for all of 2015, as if she were an actual employee.

(4) She received full CERS retirement contribution from the City (17% – 18% of gross pay). as if she were an actual employee.

Combining all that with Social Security and Medicare employer tax contributions, this settlement agreement cost the City about $50,000.

This is how the settlement was managed by Mayor Rick Richards.

(1) The settlement was never properly documented or formalized. The terminated employee accepted the benefits of the settlement, but she never signed a written settlement agreement.

(2) The City Council was never consulted or informed of the settlement, and there was no budget authorization for it. It was a secret deal.

(3) The expense of the settlement was buried in the payroll budget, the CERS retirement contribution budget and the employee health insurance budget.

So, it was a secret deal deceptively disguised, which involved the falsification of every City financial report issued by Mayor Rick Richards for 2015.

West Buechel Mayor skirts bid laws

Kentucky law requires municipalities to follow certain procedures for purchases of goods or services over $20,000. They may:

  1. Piggy back on state purchase contracts;
  2. Adopt the Local Model Procurement Code (KRS 45A.343), or;
  3. Advertise for bids under KRS 424.260

In the Fall of 2015, West Buechel’s Mayor, Rick Richards purchased a new $25,000 vehicle for the West Buechel Police Department from and out of state dealership. The City of West Buechel has not adopted the Local Model Procurement Code and there was no advertisement for bids. To complicate matters, the City’s budget made no provision for the purchase of vehicles.

The direct legal penalties for violating KRS 424.260 appear to be nearly non-existent, even if significant off-budget spending might expose the Mayor to personal liability for making such a purchase without legal authorization.  However, despite the number of times is has been repeated over the years, it never seems to sink in. “It’s not the crime. It’s the cover-up.”

(1) Mayor Rick Richards issued two consecutive checks, on the same date, for the purchase of this one vehicle. One check was for $19,500 and the second was for $9,500, for a total of $25,000.

(2) The check reports distributed to the West Buechel City Council omitted these two checks.

(3) The Annual Budget Report for FY 2015-2016 buried the vehicle purchase in the category “Maintenance & Repairs.”

Mayor Richards did not consult with the City Council regarding this expenditure, he did not ask for budget authorization and to this day the City Council has not been informed by the Mayor of the vehicle purchase. However, it appears that Mayor Richards and Clark-Treasurer Richards took pains to hide the purchase from the Council.

In addition to the purchase price of $25,000, there was also $4,230 expended to equip the vehicle for use as an unmarked police car.  This combined $29,230 expense was off-budget and unauthorized by the City Council.

The documents we obtained through a January, 2016 Open Records request are included below.

There was a second vehicle purchased during this same time period.  The circumstances seem to be the same but the specific details are still unknown.

 



2015-11-11-Dodge-Purchase-Or (Text)

West Buechel: State Suspends Road Aid Payments

The Commonwealth of Kentucky has suspended making monthly Road Aid payment to the City of West Buechel due to the City’s failure to submit a Uniform Financial Information Report (UFIR) for FY 2014-2015. The last Road Aid payment was made in May, 2016.

The City cannot submit a UFIR for FY 2014-2015 until that year’s Financial Statements have been audited by an independent CPA as required by law. Our repeated requests to inspect the City’s Financial Statements for FY 2014-2015 have gone unanswered. The Financial Statement required by KRS 424.220 should have been finalized and published a year ago. An independent audit of the City’s Financial Statements cannot begin if the Financial Statements do not yet exist.

The State Road Aid allocated to West Buechel will continue to accumulate. Those funds, which are about $2,000 per month, will not be paid to West Buechel until the City gets its financial reporting in proper order and a UFIR is submitted.

West Buechel Late Pay Update

We previously reported $5,000 in late fees imposed upon the City of West Buechel by Kentucky Retirement Systems because of Kimberly R. Richards’ multiple failures to report or pay retirement contributions on time. See: Gross Negligence.  Ms. Richards has been City Clerk-Treasurer for West Buechel since Richard W. Richards took office as Mayor in January, 2015. She continues in that position with an annual salary in excess of $60,000.

By a recent Open Records request to Kentucky Retirement Systems, we have been advised that an additional $1,000 late penalty has been imposed.



2016-05-KRS-PenaltyInvoice (Text)

The two required reports and the contribution payment for May, 2016, were six days late. The City has not paid any of the accumulated $6,000 in fines.

Fox wins Open Records suit against West Buechel

By an order dated August 29, 2016, Jefferson County, Kentucky, Circuit Court Judge Ann Bailey Smith granted the motion of Thomas Fox for Partial Summary Judgment in an Open Records Act lawsuit he had filed in November, 2015 against the City of West Buechel, Kentucky. This Judgment ordered City officials to allow Fox to inspect certain specified banking records and other documents.

Summary Judgment Order – Open Records

West Buechel accountability update

WEST BUECHEL, KY – Copies of bank statements obtained by way of an Open Record request establish the amount of cash the City of West Buechel had in the bank on January 1, 2015, when Mayor Rick Richards took office. When compared to bank records from July 7, 2016, the city appears to have spent about $992,000 more than it took in during that 18 month period.

 

Rick Richards’ financial reporting for that same period shows spending of about $664,000 in excess of receipts.

This leaves some $328,000 unaccounted for.

Former West Buechel Treasurer arrested for theft

Marti Sitz was Clerk/Treasurer for the City of West Buechel from 2013 to November, 2014, when she was terminated by former Mayor Sharon Fowler for undisclosed reasons.  When Rick Richards became Mayor in 2015, he re-hired Ms. Sitz as Assistant City Clerk under Clerk/Treasurer Kim Richards.

Marty Sitz was arrested Wednesday, June 29, 2016, at West Buechel City Hall. West Buechel Police officers made the arrest and transported Ms. Sitz to Louisville Metro Corrections where she was booked in with two charges of Theft by Deception for more than $10,000.

The exact nature of the alleged crime is unknown at this time.

Accountable Lawyers

The Kentucky Supreme Court is the ultimate authority over lawyers.  Practicing lawyers are officers of the court and they are governed by the Supreme Court’s Rules of Professional Conduct.

Briefly, here are the high points.

Kentucky Rules of Professional Conduct – SCR 3.130

Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2 Scope of representation and allocation of authority

A lawyer must honor a client’s decision on the settlement of a civil action or resolution of a criminal proceeding, including whether the client will testify.

A lawyer shall not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent,

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4 Communication

  • A lawyer shall promptly inform the client of any circumstance which requires the client’s informed consent.
  • A lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
  • A lawyer shall keep the client reasonably informed about the status of the matter;
  • A lawyer shall promptly comply with reasonable requests for information; and
  • A lawyer shall clearly inform the client when the lawyer cannot do for the client what the lawyer knows the client expects to be done.
  • A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.5 Fees

Written fee agreements are recommended, but they are not mandatory.

Rule 1.6 Confidentiality of information

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.

Rule 1.7 Conflict of interest: current clients

A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

BUT, a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing. The consultation shall include an explanation of the implications of the common representation and the advantages and risks involved.

Complaints against lawyers are sent to the Kentucky Bar Association for evaluation and possible investigation. The decision to discipline a lawyer is the responsibility of the Kentucky Supreme Court.

Holding Kentucky Judges Accountable

The Judicial Conduct Commission is authorized to take disciplinary action against a sitting Kentucky Judge. The Commission also has authority over trial commissioners, domestic relations commissioners, master commissioners and attorneys who are candidates for judicial office.

The Kentucky Code of Judicial Conduct, SCR 4.300, outlines the basic rules of ethics and right conduct under which Kentucky judges must operate. The vast majority of Kentucky judged perform their job functions honorably and honestly, everyone makes mistakes now and then, but there may always be a rotten few. Systems are in place to detect and correct deviations from the accepted norms.

Although the Judicial Conduct Commission may investigate a judge’s performance upon its own initiative, anyone may file a written complaint that will be evaluated and investigated, as appropriate.

The form for a written complaint to the Judicial Conduct Commission may be found here: How to file a complaint.