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A Councilman's 'Dying Declaration' 

In final civic act, Lance Madsen takes aim at Eureka City attorney

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In a sworn declaration signed less than a month before his death, former Eureka City Councilman Lance Madsen claims City Attorney Cyndy Day-Wilson lied to him and tried to get another city hall department head to do the same in an effort to cover up her allegedly distributing a confidential and explosive memo to city employees.

The declaration and accompanying six-page investigative report, both of which Madsen apparently made a top priority during the last months of his battle with lung disease, were delivered by certified mail to the city on June 5 by Daniel Cooper, Madsen's probate attorney. Together, the documents shed new light on an apparently toxic environment in city hall and a rift between members of the city council. They also raise serious questions about Day-Wilson's honesty, ethics and job performance.

"Mr. Madsen requested that I provide this information to the city council after his death so that its present members would follow through on the investigation his declining health prevented him from completing," reads a cover letter to the city from Cooper. "Mr. Madsen's request also directed that I allow his family 'private time' to grieve and adjust to his passing before this affidavit was delivered to the city council."

In an interview with the Journal, Cooper said he met with Madsen over the course of a couple of months to help him put together a three-page sworn affidavit pledging that his six-page investigative report is true and correct. Cooper said he never actually read the report, but notarized it to leave no question that it was written by Madsen himself and that the former councilman had sworn to its contents. Cooper said it was clear to him the matter was very important to Madsen. "It really concerned him," Cooper said. "Basically, what he told me is the council should not be lied to by its employees."

Day-Wilson, who took Eureka's city attorney position in September 2011 and also currently serves as counsel to the Humboldt County Fair Association, did not return numerous messages left by the Journal seeking comment for this story.

Madsen, who resigned his post on the council in December due to his prolonged battle with lung disease, was in hospice care when he signed the affidavit March 6. He died April 5.

A two-time council member who was awarded the city's first ever Mayor's Community Service Award of Merit, Madsen was also a former cop and detective, and it shows in his investigation report. At issue was the handling of a memo penned by former City Manager Bill Panos and emailed to city council members on Oct. 4, 2013, Panos' last day in office after just nine months on the job. The email was critical of some department heads, including Day-Wilson, and included suggestions to the council for future planning, according to Madsen's report. The Journal's request for a copy of the e-mail is under city review.

Madsen writes that he was immediately concerned upon opening the email, which was marked as confidential and dubbed a "reorganization blueprint." Madsen says he stopped reading the document after its first line: "The information contained in the document is confidential as it involves personnel matters. As such, please use discretion with the information in this email and attached document." In his declaration, Madsen writes that he had not read the rest of the email or the attached "reorganization blueprint" as of signing the affidavit.

But Madsen's report indicates he began hearing "mutterings about the document" from city employees the week of Oct. 20 and later heard "almost everyone in City Hall was aware of the documents and had knowledge of at least the essence of its contents." Madsen then began investigating the apparent leak.

Through his investigation, Madsen says he was told by Councilwoman Melinda Ciarabellini that she gave a copy of the document to Day-Wilson over concerns it could result in litigation by those named in the "reorganization blueprint," and because "the city attorney was one of those addressed in the document." Madsen says he was told by two city hall employees — Personnel Director Gary Bird and former Community Development Director Rob Wall — that they received copies of the document from Day-Wilson. Bird told Madsen, according to the report, that Day-Wilson insisted Panos' memo was a public document because it had been emailed to the council and consequently didn't qualify as a "personnel matter."

When Madsen talked to Day-Wilson about Panos' memo, according to his report, she said she was unsure how it was distributed to City Hall employees, telling him her copy was locked away in Bird's files, along with a hostile workplace complaint filed on Day-Wilson's behalf by Councilwoman Linda Atkins. Madsen says he then followed up with Bird, who maintained his story that Day-Wilson gave him and Wall copies, adding that Atkins' has never filed any hostile workplace complaint on Day-Wilson's behalf. "He further informed me that Councilperson Atkins had never asked for such a file to be created and only (Day-Wilson) could ask for such a file to be created, which she had not," Madsen states in his report.

Madsen says in the report that he later followed up with Wall, who said that after Madsen's inquires about the leaked memo, Day-Wilson came into his office "and told him that 'he had to have her back.'" Wall, according to Madsen's report, said the city attorney instructed him that if anyone asked about his having seen Panos' memo he should say that he had walked into Day-Wilson's office on some other city business while she was not there and that, while waiting for her to return, he'd found a copy of the memo on her desk and read it. "He told (Day-Wilson) that he could not comply with her request as her story was not what happened and it was not the truth," Madsen says in his report.

The former councilman concluded that he'd obviously been lied to, either by the city attorney or by two "long-term and trusted city employees." Madsen states that he felt Bird and Wall had no motivation for lying to him about the memo, and that he believes Day-Wilson had not only lied to him but had also attempted to get Wall to do the same. "I believe the city attorney's behavior was/is unethical and is a breach of good faith and of the contract with the council."

"Consider this my dying declaration," he writes in the report. "I do. ... I declare that everything in this document is truthful and correct to the best of my ability and I am aware of the potential ramifications it may have on the person(s) named within and as a practicing Roman Catholic, the impact it would have on my own after life. I do not do this out of any feelings of spite or some unresolved contest but solely out of concern for the people of the city of Eureka, its council and its employees."

So where exactly does this leave the city of Eureka? The answer is a bit complicated.

University of California Hastings College of Law professor David Levine said the accusations contained in Madsen's affidavit and report are serious and troubling. If Madsen's information is true, it seems the city would have little trouble firing Day-Wilson for violating her duties, both by disseminating the confidential document to city employees and then by lying about it. But, Levine said, Madsen's affidavit likely wouldn't hold up in a court of law, so the city would have to corroborate Madsen's claims through an independent investigation in order to protect itself in taking any action against Day-Wilson. Levine said it's also potentially a matter the California State Bar could pursue as Day-Wilson is alleged to have violated the duties owed to her client, but again, Levine said the bar would have to conduct an independent investigation to corroborate Madsen's allegations before it could take any action.

Madsen makes clear in his affidavit and report that he's leaving the matter in the council's hands to "toss," "act on" or "ignore." But it's also clear from Madsen's report that the council is already somewhat divided on the issue.

According to the report, Madsen consulted an attorney specializing in human resources litigation after he felt he could no longer trust Day-Wilson. The attorney suggested the council discuss the matter in closed session. It was agendized, according to Madsen, but never discussed, as "two council persons walked out in defense of the city attorney and in protest over using (an outside attorney)." Madsen does not identify which council members left the meeting.

While most cities leave the power to hire and fire a city attorney to the city manager, Eureka's charter specifies that its attorney works for and serves at the pleasure of the city council.

In addition to raising the questions of who lied to whom and what should be done about it, Madsen's documents also paint a picture of Eureka City Hall in dysfunction. While Panos — a controversial figure in City Hall for his brief tenure on the North Coast — apparently dubbed his memo a "reorganization blueprint," Madsen notes that city employees referred to it as his "hit list" and that its contents were apparently alarming enough that they led somebody to place anonymous weekend phone calls to at least two department heads warning them of their inclusion on the list.

Reached in his new Wyoming office, Panos largely declined to comment on his final memo to the council other than to say it was intended for council members' eyes only. Panos said he prepared the document at the council's request in order to provide an update on his continued efforts to reorganize city government and to suggest a path forward, but said it never should have been distributed to city employees. "None of us should be speaking about it," he said. "It's a personnel matter."

The whole situation seems to constitute a bit of a mess for Greg Sparks, Eureka's new city manager, whose first day on the job was last month. Sparks, who stressed that he is intent on focusing on the future and moving the city forward, said the council is taking Madsen's information under advisement.

"They haven't directed anything as a result of this," he said. "Obviously, they view it as an employer-employee issue and it's probably a little bit of uncharted territory for a council to deal with when you have an affidavit from a deceased former council member. I think the council will be determining a course of action here in the weeks ahead."

For his part, Cooper said Madsen simply wanted the full council to have all the information he'd compiled about the situation.

"This was just something that really ate at him," Cooper said, "and he really felt that, for the city's benefit in a number of ways, it should be looked into by the council. I don't think he ever intended his information to be the final word, but enough to spur them to do a real and thorough investigation."

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