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'Long Overdue' 

Eureka pays $165K to cut ties with its city attorney, ending a costly and controversial tenure

In late 2013, Eureka City Councilmember Lance Madsen was dying, in the last stages of his battle with lung disease. But the former police detective was also pressing to close one last case — to get his fellow councilmembers the information he believed they needed to fire City Attorney Cyndy Day-Wilson.

In an investigative report and a declaration signed under penalty of perjury from his hospice deathbed, Madsen outlined allegations that Day-Wilson had leaked a confidential memo from then outgoing City Manager Bill Panos to the council to other members of city staff, then lied to Madsen in an attempt to cover up the breach and attempted to solicit another department head to do the same. If true, the allegations were enough to fire Day-Wilson with cause and, potentially, to have her disciplined by the California State Bar.

"To lie to me as a sitting council person is to lie to the whole council and an attempt to further conceal the original lie is another act against the whole council," Madsen wrote in the documents, which were signed a month before his death. "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. I do."

The documents arrived at City Hall in June of 2014, sent by Madsen's probate attorney, and the council convened in closed session to discuss them. At that point, in the first months of Greg Sparks' tenure as city manager, the council was already deeply divided on Day-Wilson. It's unclear exactly what was discussed but several sources close to the city tell the Journal that Day-Wilson threatened to sue the city — not her first such threat — and the council took no action. It wouldn't be until years later, when an almost entirely new council with Marian Brady as the only holdover, called a special closed session meeting on June 26 with 24-hours notice to discuss her discipline or termination. At the close of the roughly hour-long meeting, the council announced Day-Wilson's resignation, which came as a part of a "mutual separation" that saw her paid more than $165,000 to leave her post.

The resignation brings to a close Day-Wilson's controversial and costly seven-year tenure with the city. In the wake of the resignation, the Journal reached out to scores of current and former city staffers and current and former council members. Almost all declined to discuss Day-Wilson on the record. Current officials pointed to the resignation agreement itself, which has a strictly worded non-disparagement clause, and former officials spoke of a fear of retaliation and requested anonymity discussing the situation. Together, their accounts paint a picture of Day-Wilson as an unscrupulous person who was willing to bully the council into doing her bidding, with one source saying she is "as dishonest as the day is long."

Former Councilmember Mike Newman said he voted to fire Day-Wilson when the matter came before the council, saying he considered her a divisive force in a City Hall deeply fractured under Panos' watch. Still, Newman said he was stunned when he received Madsen's report and declaration.

"It was kind of unbelievable reading it the first time, to see all of it laid out there," he said. "In retrospect, looking back on it now, it makes perfect sense. Lance had a good memo."

But Day-Wilson also clearly had supporters endeared to her aggressive tactics and strident defense of the city. One former city employee previously told the Journal that "she's a bulldog, but she's our bulldog." And Mayor Frank Jager, who did not return Journal calls seeking comment for this story, sent out a brief statement to the media after Day-Wilson's resignation saying that "on a personal note, I will miss her. She was a fighter for the city."

Exactly what led to the council's decision is unclear.

It met in closed session June 19 to evaluate the performance of the three employees who answer directly to the city's governing body: City Manager Greg Sparks, City Clerk Pam Powell and Day-Wilson.

Sparks told the Journal last week that generally as a part of the review process, each council member will fill out a standardized form, weighing in on the employee's job performance, across a variety of categories. (In the case of the city attorney, these include questions about the quality of legal advice, professionalism and ability to work with other staff.) The council would then meet privately with the mayor to compare notes, with one council member compiling the feedback into a single form. From there, the employee would be brought in for a conversation with the council, looking back on his or her job performance and forward to areas of improvement and goals for the coming year. No one other than the employee, the mayor and the council is present for these discussions.

It's unclear what occurred at Day-Wilson's June 19 review but around noon on June 25 the council posted an agenda for a special closed session meeting at 1 p.m. the following day, with the potential discipline or termination of a city employee as the only discussion item.

Sparks said the conversations about Day-Wilson's potential resignation began about the time the agenda was posted and her attorney, Larry Kluck, contacted him later that day, which proved to be Day-Wilson's last on the job.

But Sparks said no agreement was in place nor was any settlement offer on the table when the council convened in closed session June 26. In that closed session meeting, it appears the council reached a consensus that it was prepared to fire Day-Wilson without cause and discussed what it could agree to in exchange for Day-Wilson's resignation over the course of about 20 minutes, after which Sparks emerged from the meeting to confer with Kluck in his office, apparently relaying the substance of the council's settlement offer.

About 40 minutes later, the deal was done.

Speaking anonymously, sources pointed to two predominant reasons for the council's decision: rising costs in the city attorney's office and questionable legal decisions.

When the city hired Day-Wilson in November of 2011, the city attorney's office had a budget of $304,000, which paid for the salaries of the city attorney and a legal assistant, as well as about $46,000 in outside counsel and services. Those numbers grew substantially under Day-Wilson's watch.

In 2015, despite undergoing a severe budget crunch that necessitated a variety of cuts to other departments, the city created the position of deputy city attorney, with assurances from Day-Wilson that it would actually reduce costs. Under the council's direction, the city had been ramping up efforts to prosecute municipal code infractions — things like camping and panhandling violations, and the illegal storing of personal belongings in public spaces — in an effort to mitigate impacts of the city's homeless population. But Day-Wilson was relying on hired outside attorneys to do it, which had ballooned the costs for outside counsel to more than $137,000 the prior fiscal year, so the council agreed to hire a deputy city attorney to take on the prosecutions.

But even with the added in-house help, the costs of outside counsel continued to climb. In the city's 2018-2019 fiscal year budget, almost $600,000 went to the city attorney's office, including more than $160,000 for outside counsel.

The costs, however, were only part of the equation. One source who called Day-Wilson's separation with the city "long overdue" said the escalating costs for outside counsel were really a symptom of a larger problem, which is that Day-Wilson — who came to Eureka after working her way up to being a partner at Best, Best & Krieger LLP, a high-powered environmental law firm — had no background in municipal law.

Some argue this has been evident in the way Day-Wilson handled a string of high profile issues for the city.

In March of 2014, she infamously instructed the council to reel back a seemingly heartfelt letter of apology that Jager penned to the Wiyot Tribe, partly inspired by his two tribal member granddaughters. In his draft of the letter, which he released to the media, Jager noted people from Eureka participated in the 1860 massacre that occurred on Indian Island, when in a coordinated attack, groups of white settlers murdered as many as 250 people — mostly women and children — and called the incident "a massacre of unfathomable proportions" by "our people."

But Day-Wilson insisted the letter could expose the city to liability and penned a second draft that took out the phrase "formal apology" and any reference to people from Eureka's participation in the massacre. What began as a heartfelt apology morphed into a bureaucratic show of support that lacked any contrition. According to multiple legal experts consulted by the Journal, concerns over liability were unfounded and a number noted that Eureka didn't officially incorporate as a city until 16 years after the massacre, making the notion that a subsequent letter of apology could somehow make it legally responsible "laughable."

Also in 2014, Day-Wilson began working for the Humboldt County Fair Association's board of directors, first offering a training on state open meeting laws and then moonlighting as its staff attorney.

"I thought it was weird that the Eureka city attorney had a nighttime side gig for 200 bucks an hour to teach the fair board the Brown Act," said Ferndale Enterprise publisher Caroline Titus. "She obviously didn't do a very good job or they didn't listen very well."

Titus said Day-Wilson would instruct board members that they didn't have to answer Titus' questions during meetings and refused to respond to a series of emails from the publisher concerning her paper's public records requests to the association. The lack of response to those requests ultimately led to a lawsuit and a Humboldt County Superior Court judge ordering the association to pay $46,000 in legal fees to Titus' attorney.

In June of 2015, Day-Wilson made a decision that would also result in a sizeable amount of public funds being paid out to a private attorney. Judge Christopher Wilson had granted a North Coast Journal petition seeking the release of dash camera video footage documenting the arrest — and alleged assault — of a juvenile by a Eureka police officer. Day-Wilson appealed the ruling on behalf of the city, arguing that the video constituted a confidential police officer personnel record because it was used in an internal affairs investigation. (During oral arguments in the case, she essentially argued that because the Eureka Police Department gets so many complaints, all its officers are under internal investigation at all times.) When the appellate court issued a published opinion that set a statewide precedent in the case holding that police videos of arrests cannot be considered personnel records, Day-Wilson petitioned the California Supreme Court to de-publish the ruling. After that proved unsuccessful, a local judge ordered the city to pay $90,000 in fees to the Journal's lawyer, Paul Nicholas Boylan, for his work on the case.

The Journal and Day-Wilson tangled again over public records the following year, in May of 2016, when the paper submitted requests under the California Public Records Act seeking city officials' emails in the lead-up to the clearing of entrenched homeless encampments in the PalCo Marsh. Day-Wilson denied the Journal's request — saying she was unable to find a single disclosable record — and publicly accused the paper of conspiring with the ACLU to help plaintiffs in a lawsuit challenging the evictions of homeless encampments from the marsh. (The accusation was baseless.) Threatened with a lawsuit, Day-Wilson ultimately produced more than 11,000 pages of emails.

Those emails also ultimately showed that then Eureka Police Chief Andrew Mills was openly questioning the legal advice he was getting from Day-Wilson in the lead-up to the marsh evictions. Specifically, he disagreed with Day-Wilson's opinion that officers could search homeless people's tents without a warrant and clear the marsh without offering those camped there a legal alternative. Mills sought input from at least two outside attorneys on the matter, and ultimately he and the city were named in a federal civil rights lawsuit challenging the legality of the evictions. The suit remains pending.

(It's also worth noting that Day-Wilson filed a declaration in the case with some glaring misstatements of facts, including that the city since 2011 had a "zero-tolerance" approach to illegally camping when it had in fact encouraged people to camp in the marsh and that the city had already entered into contracts for work on a trail project when it had not.)

Most recently, last September, Day-Wilson approved the inclusion in a city press release of a salacious third-hand allegation against a local landlord and the release of a police report — without the approval or knowledge of the Eureka Police Department — that included the allegation, which was never investigated or followed up on. A legal expert consulted by the Journal at the time indicated the press release "tipped over the edge into defamation" and the landlord later filed a claim against the city stemming from the incident.

But if any of these cases or instances — collectively or individually — led the council to sour on Day-Wilson's legal advice, council members have been tight-lipped about it and have refrained from publicly criticizing her. That's why last month's decision — which came almost exactly four years after Madsen's dying declaration was delivered to City Hall "out of concern for the people of Eureka, its council and its employees" — came as such a surprise.

Asked after the meeting why the council generally felt it needed a new direction in the city attorney's office, Councilmember Austin Allison wouldn't say much but indicated the council had its reasons.

"There's so many things — I just don't know if I can say them. I think I can't," he said. "It's a personnel matter, so we have to keep things confidential."

Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or thad@northcoastjournal.com. Follow him on Twitter @thadeusgreenson.

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About The Author

Thadeus Greenson

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Thadeus Greenson is the news editor of the North Coast Journal.

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