JAILGATE PART 3: In the shadows
Records show commission sought for jail problems to just go away
Ward County commissioners were willing to pay to make troubles stemming from a jail inmate’s death go away. They also were willing to hide that payment from the public footing the bill, according to a recording of the meeting obtained by Minot Daily News.
A recording of an April 11 closed meeting, obtained by the Minot Daily News, shows commissioners were concerned about a wrongful prosecution lawsuit if Sheriff Steve Kukowski were to be vindicated in criminal and civil cases against him. They blamed the North Dakota Department of Corrections & Rehabilitation for the legal issues and were eager to make the financial consequences go away.
During the meeting, the commission received a resignation offer from Kukowski by phone through his attorney, Peter Welte, Grand Forks. Kukowski faced two misdemeanor counts of reckless endangerment and one misdemeanor count of public servant refusing to perform public duty in North Central District Court. The charges were in connection with the October 2014 death of Dustin Irwin, who died in a Bismarck hospital after he was transported by Kukowski and Capt. Michael Nason from Minot. Nason, since retired, had been charged with reckless endangerment, but the charge was dismissed.
Kukowski also faced a separate removal proceeding through the governor’s office. The governor had suspended him in June 2016, although the county continued to pay his salary.
With Kukowski’s resignation offer, there would be no need for a removal proceeding. The special prosecutor, hired to avoid an inherent conflict in the Ward County State’s Attorney Office, stood ready to dismiss criminal charges if Kukowski resigned and retired.
Welte informed commissioners that to end the case with a resignation and save the county from a “bloody, messy trial” in which they would be subpoenaed, Kukowski was requesting reimbursement for his legal fees. He listed those fees at $111,857.56.
The commission discussed the county’s role in the cases against Kukowski, which was limited to finding an attorney to replace State’s Attorney Rozanna Larson in reviewing the criminal investigation report. The first attorney, James Vukelic, found the report contained cause for bringing charges but stepped down and was replaced by Seymour Jordan, who brought charges and requested the governor consider removal of Kukowski.
“Somebody pushed it. I don’t know who, but somebody did,” Commissioner Alan Walter said during the closed meeting. “Personally, I think that we owe the sheriff something. Because this was pushed outside of us.”
“It certainly was. We didn’t start this,” Commissioner John Fjeldahl added. “But then why are we responsible financially for it?”
Larson voiced her concern from the start of the executive session through much of the discussion with Welte about whether the topic met the standard of the state’s open meetings law for closure to the public. She stated the county is not part of the criminal or civil cases against Kukowski so is not involved in litigation that might warrant executive session.
However, Larson’s interpretation of Welte’s message from Kukowski changed the meeting’s focus once the phone call ended. Although Welte made no mention of any legal action against the county, Larson said, “It would seem very clear to me that if we don’t go into some type of negotiation with him and satisfy this, that there is going to be a lawsuit against the county in the end. It kind of rang quite clear to me that a lawsuit is going to threatened.”
She said the intent appears to be to pull the county through the mud and blame the county for not funding the jail adequately.
“If he is going to attempt to do that, he has a big hill to climb,” said Fjeldahl, who along with Commissioner Shelly Weppler argued the commission supported funding requests from the sheriff.
The commission called the North Dakota Insurance Reserve Fund and spoke with Jeff MacQueen, who works in claims. MacQueen assured the commission that NDIRF, as liability insurer, would represent the county should there be a lawsuit and would pay damages should any be awarded. However, NDIRF could not pay a settlement if there is no lawsuit, he said.
Larson told MacQueen it is apparent to her that Kukowski and his attorney plan to sue the county for wrongful prosecution if he prevails in the cases against him. She said the county is not engaged in either the criminal or civil proceedings, nor does she oversee those cases because of conflict, but the county could be sued because the prosecutor, Jordan, serves in her place.
The commission then called Jordan, who confirmed he is willing to drop the charges against Kukowski if he retires from law enforcement. Even if convicted, Kukowski is unlikely to serve jail time, and although he would have a mark on his record, it might not be relevant if he then retires, Jordan said.
There also was discussion about the culpability of the state Department of Corrections & Rehabilitation for not stepping in a few years ago when the county jail began having problems. The reference to DOCR responsibility was the only mention, although indirect, of the situation existing in the jail that had resulted in the department’s notice of noncompliance in December 2014. The jail was found to be over-crowded, lacking adequate staff training and negligent in providing medical care to inmates.
“What I find interesting is the DOCR, they don’t have to turn anything over on someone who died in their care,” Walter said. “But yet a druggie dies, and our sheriff is responsible.”
Fjeldahl said NDIRF can redirect any county lawsuit brought by Kukowski to DOCR if that’s where responsibility lies.
“Really, if you think this was filed wrong, it started right there,” Fjeldahl said. “It didn’t start with us. Us paying to cover up what you think the Department of Corrections is in error of is not right.”
Commissioners also did not mention during the executive session any responsibility by the sheriff for the jail problems, although they were concerned about a lawsuit should Kukowski be vindicated in court.
“We do not feel responsible at all and we don’t feel that he did something wrong,” Weppler had told MacQueen. “But we are to the point where we know it is going to drag on, and for it to drag on, we are paying a special overseer in our jail, which will continue as long as he is in office. And we are paying him.”
The swaying factor for approving attorney fees was the cost savings if Kukowski resigned. At the time, the county was paying about $7,500 for a full-time state monitor for the jail and salary of about $9,400 plus benefits to Kukowski each month. Jordan’s costs were minimal since he was only charging expenses.
Commission Chairman Larry Louser said there was a good possibility the state would remove the monitor if Kukowski is gone, based on conversations with Department of Corrections staff.
Commissioners debated how much to give Kukowski, finally settling on $56,000, or about half of the fees, as an initial offer. They called Welte to present the offer. After checking with Kukowski, Welte called back with a counter offer of $84,000. Louser then offered $75,000, which the commission had agreed would be its top offer, with the condition that Kukowski would not sue the county or any of its employees. Welte again checked with Kukowski and reported consent with what he described as a separation agreement.
Early on, the commission had discussed how to describe a payment if they were to approve one. Weppler, uncomfortable with paying Kukowski’s legal bills, had suggested paying severance instead. Larson warned the commission about setting a precedent, which severance would do.
Once the agreement was set, Larson questioned how the separation agreement would word the payment. She directed Welte to draft an agreement for her review.
“We need to be careful on how we draft his resignation and our acceptance and how that is going to come about because, ultimately, this will be a public record,” Larson said. She noted the importance of avoiding any appearance the county and the sheriff were trying to hide something, but she added, “I don’t think we want to label it ‘legal fees.'”
In reconvening in open session, the commission approved a motion that read: “Moved by Comm. Walter, seconded by Comm. Weppler, to take council advisement and to accept Sheriff Kukowki’s resignation effective 04/15/17 upon approval of attorney documents.” No members of the media or public were present.
“I am going to vote against this simply because of the financial part,” Fjeldahl said before casting the only vote against the motion. Louser, Weppler, Walter and Jim Rostad voted for the motion.
The commission then discussed with the auditor and meeting recorder, who were present during the closed meeting, what to say to the news organizations that would call. Auditor Devra Smestad suggested releasing information about accepting the sheriff’s resignation.
“Based upon paperwork – we are waiting on the paperwork,” Weppler added.
The commission then reviewed the wording of the motion, which would be public record, to ensure it was sufficiently vague. However, Larson told commissioners that once the final agreement is completed, it will be public record. Anybody can make an open records request, she reminded them.
The next day, information related to the legal fees leaked, and the commission met again April 13 to approve the final agreement on a 4-1 vote. The meeting was advertised as closed but was held in public session at Larson’s advice.
The agreement states it is a “settlement of a disputed claim in which the county is a potential party.” Under the terms, Kukowski was to step down as sheriff at the close of business Saturday, April 15.
In connection with his resignation, the county was to make a one-time payment of $75,000 to Kukowski, who will return all county-owned property in his possession. He agrees to fully release the county and its affiliates from all liability for damages, claims, attorney fees or expenses of any kind occurring up to April 15, 2017. He agrees to give up any claim he may have under federal and state employee protection laws. The agreement extends to any claim for wrongful discharge, breach of contract, promissory estoppel or breach of an express or implied promise, misrepresentation or fraud, retaliation, infliction of emotional distress or defamation.
The agreement ended the county’s salary payment to Kukowski and the removal proceeding. The criminal charges were dismissed in May. Full-time jail monitoring continued through July.
At a May 16 commission meeting, Fjeldahl moved to make the record of the closed meeting public, which the commission has authority to do. State law allows for opening of records once the subject matter is no longer secret, as long as no confidential information is involved. Fjeldahl failed to get a second on the motion. Commissioners said they wanted to keep the confidence of Welte, NDIRF and Jordan regarding information shared in private.