At the last meeting (July 27) the board discussed replacing litigation Counsel Timmons with Scott Gessler. That issue will be addressed and apparently decided Monday evening.
Mr. Gessler entered his appearance on behalf of the District last August, 2020, and has appeared at just about all the hearings and many board meetings representing the District on the Big Sky litigation. He reportedly contributed to the substance of the motion for summary judgment that the Court recently granted dismissing the Big Sky case. He gets along well with all the board members. In essence he has been doing much of the work the past year.
The board, particularly a majority of the board, have had a strained relationship with Counsel Timmins which has devolved into open hostility as Counsel Timmins fights to retain her position.
She should have resigned before now but hasn’t. Once an attorney client relationship gets to this point, the professional course is for the attorney to respectfully resign, assisting with the transition to new counsel.
One of the complaints by the recall group is “you can’t change horses in mid-stream”.
Using that example, there are always exceptions. For example, if you are already across the stream and now in the meadow – now would be a good time to get another horse that didn’t try to drown you and head in the opposite direction while you were crossing the strong current.
Green Mountain is in the meadow for now. The Court dismissed the main Big Sky case.
The appeal process has just started. The appeal recently filed was dismissed because it was filed too soon. Big Sky jumped the gun and filed their appeal – before – the District Court had a chance to issue its second order regarding dismissal of the several developers.
Timmins’ motion for summary judgment did not address the other developers, but the Court, on its own, did. The appeal was filed by Big Sky before the briefing regarding the other developer cases was done.
Once the Court issues its ruling on the other developers, the appeal will be filed again.
Director Peters disclosed at the last meeting that even current Counsel Timmins stated there isn’t much to do right now.
We are just waiting for the District Court’s ruling on the other developers’ cases and then the renewed appeal will be filed.
Now would be a good time to “change horses”.
And, there isn’t that much to the appeal. Very narrow issue. Did the Big Sky IGA – secretly passed at the developers’ request with no public input on May 8, 2018 – violate TABOR and the Legislative Budgeting Act.
Would take a brand new attorney a solid weekend to get up to speed on the issue. Mr. Gessler is already there on these issues.
The only real documents to review are the briefs, cases and Big Sky IGA. Pretty simple and cost about $10,000. Probably $20,000 after the two briefs are written and argued.
As the majority directors explained on July 27, they no longer have confidence in Ms. Timmins. They are genuinely concerned about how her continued hostility toward the board will continue to affect how she handles the litigation.
The plaintiffs are now using her false allegations (against the board members) against the District in the litigation. Here is an excerpt from the CDN brief to the Court trying to overturn the dismissal of the Big Sky case:
“GM’s counsel Ms. Timmins recently stated at a public GM board meeting that board members “destroyed evidence in this case. That has caused us an[] enormous amount of legal maneuvering and posturing now. That has run up our legal bills!” Ex. 19 at 36 (Apr. 13, 2021 GM board meeting trans.).14” Brief, p. 20.
She made that statement, in the recording below, as a vindictive attack against Alex Plotkin who was simply explaining his support to hire Title 32 counsel.
She continues to refuse to communicate with the board who have publicly disclosed they have no idea what her strategy is. It appears that strategy includes settling with a new IGA, even after winning the motion for summary judgment, and a majority of the board don’t agree with that objective.
There are ethical rules attorneys must follow in representing a client. If they break those rules, they can be suspended or lose their license to practice law.
Here are excerpts from the rules of ethics for attorneys that might apply to this situation:
The full text is here:
https://www.cobar.org/rulesofprofessionalconduct
- . . . a lawyer shall abide by a client’s decisions concerning the objectives of representation and . . .
- shall consult with the client as to the means by which they are to be pursued. . . . .
- A lawyer shall abide by a client’s decision whether to settle a matter. . . . (Rule 1.2)
- 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 explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (Rule 1.4)
- A lawyer shall act with reasonable diligence and promptness in representing a client. . . .
- A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. (Rule 1.3)
- Any changes in the basis or rate of the fee or expenses shall also be promptly communicated to the client, in writing. . . . (Rule 1.5)
- A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. (Rule 1.6)
Here are two examples of what Timmins did or didn’t do:
1. Counsel Timmins and Director Hanagan tried to force the majority to settle without giving the majority an opportunity to fully evaluate the issues and present the pros and cons of all the issues to the public at a public hearing.
She, not the client, had decided to settle the case and enter into a new IGA with the Big Sky developers.
On March 16, beginning at 41:00 on March 16, 2021, there was a lengthy discussion where the majority objected to a rush to settlement with a new IGA promoted by Counsel Timmins and Director Hanagan.
Instead, the majority requested that the public be provided with a thoughtful presentation of the issues and all the options.
Director Hanagan insisted on going forward alone with her own meeting, not to sell a particular option but “to just get public questions” and then present those questions to the board.
Instead, Director Hanagan and Counsel Timmins did completely the opposite of what they said they were going to do. On March 20 they argued for settlement with a new IGA and falsely accused the other directors of being “anti-development”.
Here is the statement Director Hanagan read, apparently prepared by Counsel Timmins with contributions by Rita Bertolli.
She also argued that the board should agree with the plaintiffs to take sewage from outside the district into the Green Mountain system in a new IGA:
Counsel Timmins argued settlement with a new IGA is the best alternative.
And, with support from Counsel Timmins, Director Hanagan agreed with the plaintiffs’ accusation that the other board members are anti-development.
Director Hanagan also falsely accused the other board members of not being interested in having a public meeting on the settlement issues:
Then, on Monday, April 5, 2021, Counsel Timmons and Director Hanagan met secretly with the plaintiff and his attorney to discuss settlement.
The rest of the board heard about it for the first time the next day in the last 13 minutes of a 4 hour meeting when Director Hanagan and Counsel Timmins emphasized settlement with a new IGA was inevitable:
Finally, Director Hanagan explained in the most recent meeting, July 27, 2021, that she is still afraid and still thinks settlement with a new IGA is still inevitable (even though the Court dismissed the Big Sky case):
Jeff Baker explained how damaging the rush to settlement was:
See also,
Green Mountain Update: One Director and Counsel in Overdrive Selling a new IGA
2. Counsel Timmins verbally taunted and threatened her own client in retaliation for questioning her billings.
On May 25, the board addressed an RFP for new counsel to provide advice and counsel on the Title 32 operational issues, a review of counsel’s representation and filing a motion with the Court to replace Director Hanagan as the Recall Designated Election Official.
Here is the tape of the full meeting with excerpts below:
The discussion at 1:10:50 began a very contentious phase where Counsel Timmons falsely accused her own client in public of “destroying documents” (1:13:07) and again falsely accused her own client of violating the open meetings act (beginning discussion at 1:21:50 – 1:24:20). ( New Title 32 counsel has been retained and since confirmed that Ms. Timmins’ understanding of the open meetings law is not accurate. )
Here is that excerpt:
At 1:54:39 Director Karen Morgan addressed the departure of co-counsel Scott Gessler.
Counsel Timmins again raised the issue of her fees. Director Morgan tried to make the point that the board was responsible for approving the expenditure of money on behalf of the district, not Ms. Timmins.
The discussion begins to focus at 2:10:53 and by 2:11:40 Counsel Timmons complains that her client is being very “ungrateful”, “pathetic”, is “tormenting” counsel, is “bullying” counsel, and is making counsel feel “marginalized”.
Counsel Timmons finally declares that she deserves “a lot better treatment”, is “disgusted” and states that Director Morgan’s punishments for these transgressions is: “YOU ARE BEING RECALLED”.
“YOU ARE BEING RECALLED” – as if to say, to her own client, “that is what you get for daring to question my bills for over $500,000”.
Counsel Timmons then continues to taunt her own client “go for it”. “Give it a go”. Try to question my billings. Again as if to say, Adrienne’s friends are going to recall you for trying to review my billings – “go for it”. “Give it a go”.
At 2:19:51, Counsel Timmons declares with no uncertainty:
“You are trying to lower my [billing] rate. Thats what you are doing.
THAT IS WHY THERE IS A RECALL ON YOU PEOPLE.
THAT IS FOR SURE”.
Director Hanagan and Counsel Timmons teamed up to conclude that Director Morgan’s motion to reaffirm the billing schedule based upon the only engagement letter, “was out of order”.
Director Hanagan, reinforced by Counsel Timmons, literally refused to allow a vote on Director Morgan’s motion. “TOO BAD”, DECLARED DIRECTOR HANAGAN. “I AM THE PRESIDENT” “THIS WILL NOT BE VOTED ON” (discussion 2:20:18 – 2:27:10.)
Here is that excerpt:
Then, Directors Plotkin and Baker raised a concern about the impropriety and conflict of interest having Director Hanagan serve as the Designated Election Official for the recall given her support for the recall.
Director Plotkin made a motion to have counsel file a motion to modify the Court order and substitute Sue Blair for Director Hanagan as the DEO.
(The Court subsequently agreed with the majority and granted the motion filed pro se by the majority, found there was at least an appearance of impropriety, and removed Director Hanagan.)
However, Counsel Timmins defended the recall committee and Director Hanagan, said it would be contempt of court to file a motion to modify, she refused and suggested maybe Director Hanagan should hire Sue Blair to help her instead.
Here is that excerpt:
See also,
There are many other examples.
Changing counsel is always a difficult decision. But changing counsel is always necessary when the client has lost confidence in the attorney and certainly where the attorney is openly hostile toward the client, deliberately using her position to punish the client and taking the position of an adversary against the client.
John Henderson