Neosho city councilman Steve Hart has filed suit against city attorney Steven Hays and mayor Richard Davidson, and is asking for more than a half million dollars in damages.
The suit, filed Monday in the 40th Circuit Court in Newton County, was prompted by the release of a recording of a conversation between Hart and Hays, in which Hart is heard demanding – with strong, threatening language – that Hays not prosecute a man who received a ticket while riding a lawnmower on a city street, and threatening Hays that it would not work out good for him if he did not comply.
Filed by Bruce Copeland of the Copeland & Brown firm in Joplin, the suit states that Hays, as city attorney, is required to act as the chief legal advisor to the council; and as an officer of the city, Hart is Hays’ client and Hays is Hart’s attorney.
The suit states that Hays went to Hart’s office to discuss city of Neosho legal matters in April 2013, and without Hart’s knowledge or permission, Hays, with the intent to do harm to Hart, secretly recorded the conversation in violation of state law.
The document states that after secretly recording the conversation with Hart, Hays, with the intent to do harm to Hart, wrongfully released a copy of a portion of the recorded conversation to third parties, including the news media. Before that release to the news media, it claims that Hays also wrongfully instructed city clerk Nora Houdyshell to release a copy of the recording in response to a series of Sunshine requests made to the city of Neosho, which requested communications between specific officers and employees of the city, which demonstrates that Hays advised the secretly recorded conversation was public record.
Count I of the suit claims legal malpractice by Hays, stating that Hart and Hays had an attorney-client privilege at all times and, as a result, Hays owed Hart the duty to abide by Missouri Rules of Professional Conduct. It claims Hays, with the purpose of doing harm to Hart, intentionally violated those rules of conduct by unlawfully and secretly recording a privileged and confidential communication; released that recording to third parties, provided copies of part of the conversation to city employees, and directed Houdyshell that the recording was public record subject to release by the city.
The suit claims Hart has been damaged and will continue to sustain damages, including but not limited to damage to his personal reputation, humiliation, lost income, damage to his business, mental anguish, pain and suffering, and loss of enjoyment of life. Count II makes the same claims, charging Hays with breach of fiduciary duty and constructive fraud. In each count, Hart asks for judgment against Hays in an amount in excess of $25,000.
Count III charges both Hays and mayor Davidson with civil conspiracy, alleging that outside the scope of their duties as officials of the city, Hays and Davidson conspired together to politically attack council members who opposed Davidson on city issues including, but not limited, to taking actions attempting to have such council members removed from city council. It states that the city attorney and mayor agreed and/or understood that unlawful and/or wrongful means would be used in furtherance of said conspiracy including, but not limited to, having Hays intentionally breach his fiduciary duties of undivided loyalty and confidentiality by releasing the recording. That count asks for judgment against Hays and Davidson jointly in an amount in excess of $25,000.
Count IV asks for punitive damages against both Hays and Davidson, alleging that Hays intentional violation of the rules of conduct were outrageous because of Hays’ “evil” motive and/or reckless indifference to the rights of Hart. It asks the court for judgment against Hays and Davidson for punitive damages of $500,000.
Hays reported Tuesday that he had not yet been served. He said it is his policy to have no comment on pending litigation. Richard Davidson also had not been served as of Tuesday. Davidson said he would adhere to his attorney’s advice to not respond, at least until after having a chance to better understand the complaint.
Copeland, representing Hart, told the Neosho Daily News that an attorney-client relationship exists between Hart and Hays, and Hays owed ethical duties to Hart, which he violated with intent to harm Hart.
“To those who say there is not an attorney-client relationship between Hays and Hart, the charter upholds that. The conduct of recording secretly and then distributing that to a third party violates Supreme Court rules,” Copeland said. “If someone says it doesn’t violate attorney-client privilege, that’s 100 percent contradictory to the city charter.”
To those who suggest it was appropriate to release the recording due to the Sunshine requests, Copeland said the attachments to the suit that document his Sunshine requests to the city prove that to be false.
“The Sunshine request was not for Mr. Hart, it did not request any communication between Hart and Hays,” Copeland said. “Mr. Hays wrongly instructed the city clerk that it was public record with intent to do harm to Mr. Hart.”
Meanwhile, at the close of the mayor’s quarterly town hall meeting on Monday night, attorney Duane Cooper queried Davidson about the release of the recording to the media. Cooper, a former Neosho municipal judge and with the law firm Evenson, Carlin & Cooper in Pineville, said several friends, acquaintances and clients within the city expressed concerns about the infighting on the council and asked him to ask some questions.
Cooper said his major concern is that a tape involving an attorney discussing anything with his client would be released. Davidson answered that it was Hays who made the tape, in April 2013. His answer as to how the recording surfaced was because Copeland, the counsel for Hart and fellow councilman David Ruth in a recent ethics violation complaint against the two, began making a number of Sunshine Law requests after that ethics investigation was dropped, and the contents of the recording fell within the request.
When asked by Cooper why Hays felt he needed to make the tape, Davidson responded that it was of a council member telling someone that if they didn’t do something, they were going to fire you. Davidson stated that there had been an attempt to fire a few people in the city about a year ago.
Cooper then asked Davidson how the tape surfaced. The mayor stated that he understood that KODE had first divulged its contents, but he didn’t know how they learned of its existence.
After explaining that the language by Hart on the recording is very strong, and that Hart is a councilman, Cooper asked the mayor if that was proper. Davidson said that he had asked Hays to review the tape for ethical violations by Hart. Cooper then asked, “Do you think Hart should be removed?”
Davidson answered, “I believe anyone who violated any provision of the charter, and it says, ‘They shall be removed,’ I support that.”
Cooper told the mayor, “I don’t know how you get anything done in this atmosphere of suspicion.”
The conversation continued after the official meeting, where Cooper questioned the origin of the recent ethics complaint against Hart and councilman David Ruth, filed by Derek Snyder, a law student who had interned under Hays. Davidson disclosed that an ethics complaint had been filed against him. “It was politically motivated,” said Davidson. “It was dismissed. It was frivolous.”
Following the meeting, Davidson entertained questions of concerns about having Hays, who is involved in the tape, looking into possible ethics violations against the other subject in the recording.
“The city attorney is there to represent us. I’m going to ask him first,” responded the mayor. “If he wants to pass it off to someone else, that’s his decision. But I’ve got to go to somebody first, and the city attorney is paid by the city to represent the council, and if a council issue comes up that may relate to things in the charter, I’m going to ask him first. If he wants to defer, that’s his position to do that.”
In discussing various aspects of the city during his town hall meeting, Davidson closed by disclosing that the ethics investigation against Hart and Ruth was a distraction to the city, and has caused some moral issues with city employees. Following the meeting, Davidson stated, “The bickering is something we don’t need. The city has a lot to be proud of, we’ve come a long way since 2010 and the financial collapse.”
He continued, “In my mind there are some people out there who would like to see us go back a little bit and do things a little different. The electorate chooses who their council is; they choose every year one or two council members, and as long the electorate feels we’re going in the right direction they can do things; and if they decide at a point in time we’re not, then they can choose to change things.”