Michelle Barber’s Abuse of Power and Misappropriation of City Resources
If you have been following the debate on Kaysville Fiber, you know that I’m neck deep in opposition. What you may not know is what some city officials have done in an attempt to silence this opposition.
Because of my opposition to Kaysville Fiber, Michele Barber, along with at least Katie Witt, Nic Mills (the city attorney), and Shayne Scott (the city manager) attempted to ruin my career as an attorney by filing an ethics complaint, which the Utah State Bar declined to investigate. They also used their position in the city government to ask the police chief to investigate my actions for criminal extortion (he wisely asked the County Attorney’s Office to investigate to avoid any conflicts of interest). After reviewing Ms. Barber’s statement, the county investigator said, “it does not appear a criminal offense had occurred.” That’s right, in response to my right as a citizen to be vocal, involved, and in opposition they tried to use their position in government to try to ruin my career and punish me criminally. And they failed miserably.
This is the kind of stuff that happens in Putin’s Russia. Not Kaysville.
The ethics allegations were particularly troubling. As an attorney, if you have been found to violate the rules of professional ethics, you can be disbarred and cannot practice law. This was a serious accusation. This could have affected my ability to support my family. It’s also quite personal. I hold myself to high ethical standards (ask my clients, they will attest to as much). This was squarely a direct attack on my character.
Admittedly, I have been aggressive in opposition to Kaysville Fiber. I know I have made some people feel upset and according to some, I have been “inflammatory and disagreeable”. But it is not unethical or criminal to do so. And I have a fundamental right as a citizen to be vocal, aggressive, disagreeable, and inflammatory. I also have the right to upset people and make them uncomfortable. We all do!
You may be thinking I must have done something horribly wrong to justify this. Well, you can read the documents I have obtained (see below) and decide for yourself. But remember, two independent parties that know a thing or two about ethical and criminal investigations, the Utah State Bar Association and the Davis County’s Attorney office, looked into the allegations and both declined to investigate. That’s right, the allegations were so weak neither pursued an investigation beyond reviewing Ms. Barbers complaint. Indeed, the County Investigator after interviewing Ms. Barber and only having facts in her favor concluded that “it does not appear a criminal offense has occurred.” The Utah State Bar similarly declined to investigate based on her statement.
So what happened? Well, in the fall of 2019 I was invited to negotiate a compromise between the Coalition and proponents of Kaysville Fiber. We were asked to compromise like “two fierce saber warriors coming to the negotiation table for peace.” We happily agreed. On November 6, 2019, a colleague and I met with Ms. Barber and Andre Lortz (now a city council member) and two other member of the fiber committee: Jordan Stephenson and Brett Tarbox. We attended the meeting with the goal of being open and honest about our plans moving forward and the various options at our disposal.
I thought the meeting went quite well. The analogy of the two saber warriors was again used. And I recall both sides stating we were putting our sabers (or swords) on the table as a gesture of peace. We were open and honest about everything. This included discussions about reaching an agreement that would make the referendum, the appeal at the district court, and a potential lawsuit regarding the open meetings violation unnecessary. In that context and to be conciliatory, at one point I did say in the meeting we would “lay all of [our] swords on the table.”
After discussing the referendum, the appeal, and potential compromises, I mentioned we had one additional “lever to pull” in regard to what we felt was an open meetings violation. And we would likely pull that lever. If we were seeing the signals from the city we were hoping to see, we might not. Again, this was in harmony with the spirit of the meeting where we were openly negotiating a compromise and laying everything on the negotiating table. I did state this was a “sensitive item” because I had heard feedback from others that Ms. Barber, in particular, was very concerned about the issue. And I was trying to be sensitive. I put the issue on the table in the spirit of openly negotiating a compromise. Bringing this up, however, I felt went against everything I understand about negotiation strategy. But we did it to be transparent. I guess I should have listened to my instincts.
Fast forward a bit, a few citizens and I (not the Coalition) filed the open meetings act (OMA) lawsuit against the city. We did not name any individuals. Instead we only named the city. The district court has since dismissed this suit, and we choose not to appeal.
In response, on February 26, 2020, Ms. Barber, Mayor Witt, Mr. Scott, and Mr. Mills asked the Kaysville City Police Chief to pursue criminal charges (see here). In response, the Police Chief wisely asked the County Attorney’s Office to look into this because of the obvious conflicts of interest. The county declined to prosecute. In the county’s Declined Prosecution Statement, they noted “Mr. Sanders, as anyone, has a legal right to file a lawsuit. His indicating he may do so as part of an aggressive (even hostile) negotiation position would not normally satisfy the burden under the statute to prove the threat constitute a threat to harm the public servant or entity on its face.”
On February 28, 2020, a few days after we heard the city had been served for this OMA lawsuit, Ms. Barber, after consultation with the City Attorney, filed the ethics complaint with the Utah State Bar Association stating I had committed “political extortion”. It appears, Ms. Barber had been telling Mr. Scott as early as January 10, 2020, that she had already filed the ethics complaint (she hadn’t) and that they were working together as city officials on the criminal charges.
I’m an attorney, and to this day, I still don’t understand why they think any kind of extortion took place and neither does the County Attorney’s office. Political extortion usually occurs when a politician uses her government position to grant favors in exchange for money. As the State Bar Association noted in their letter declining to investigate, I was simply notifying Ms. Barber of my viewpoint and future plans. This is not extortion. I’m free to communicate my future intentions as I wish.
Indeed, if telling people in advance you will take some action is considered extortion, then our government commits extortion all the time. Following Ms. Barber’s logic, every statute that proscribes a punishment for taking some action would then be extortion. If you drive faster than the speed limit, the government says the police will ticket you. Extortion! If you build your shed too close to your property boundaries, the city tells us you will be fined for a zoning violation. Extortion! If you don’t pay your taxes, the federal government tells us, you will be fined or jailed. Extortion! Even the filing of a patent or a trademark would be considered extortion because these outline the parameters of a potential infringement: if you build this patented thing, you will be sued. Extortion! I could go on and on.
It appears this all started with Jordan Stephenson. He wrote a memo documenting his understanding of what occurred in the meeting on November 6, 2019. In this memo, he concluded, “I believe that this threat crossed the line of ethical boundaries and potentially legal boundaries. I do not believe that a perceived violation should be used as leverage to extort a sitting council member into taking action that serve one individual’s or group’s interest.” It appears all this started because Mr. Stephenson, an accountant, felt legal and ethical boundaries were crossed. I would hope when accounting issues come up, the city confers with people like Mr. Stephenson. But when legal or ethical issues arise, I would hope the city would confer with similar experts, not an accountant.
It’s quite clear no extortion occurred.
Of course, I’m glad two independent third parties found Ms. Barber’s allegations so meritless they wouldn’t even investigate. But I can’t decide if I should be scared or laugh that these allegations were made. Mostly I’m disheartened. It’s sad when someone gets a little authority, she feels like they have some dominion over others, and she uses that authority to her personal advantage. I guess Ms. Barber is more like Mayor Witt than I previously thought.
I’m also astonished at the amateurism of the people involved. The city attorney, Nic Mils, should have known better. And so should have the city manager, Shayne Scott. After all, it’s their job to safeguard Kaysville City and the city council. But they were also placed in a very difficult position. After all, Ms. Barber is their boss. It’s no wonder my repeated requests for information about this incident under the GRAMA laws were repeatedly denied by the city until I appealed these requests to the state. These correspondences don’t make them look very good. It was unfair and probably unethical for her to put them in such a compromising position.
All of this is quite petty.
And it brings up a number of important questions.
One question is whether Ms. Barber misappropriated city resources by using the Kaysville City attorney, Mr. Mills, for personal legal advice. Ms. Barber filed the ethics complaint as a citizen. She used her personal contact information and does not use city letterhead. And she was not authorized by the city council to file such a complaint on behalf of the city or the city council. In her letter she admits she received legal advice from Mr. Mills about filing the ethics complaint. And within minutes of filing the complaint, she reported the filing to Mr. Mills (see below). Using the city attorney for personal legal advice is a misappropriation of city resources. It’s the same thing as if she had borrowed the city truck to transport personal items. It makes me wonder how often the city attorney gives city council leaders free legal advice?
It is also likely unethical for Mr. Mills to represent both the city and a city council member at the same time. The Utah Supreme Court has made it clear that city attorneys represent the city, not the city council nor individual council members. He’s paid by the city to represent the city’s interest not city council member’s interests. In addition, there could be situations where Mr. Mills is required to give the city legal advice that could be adverse to Ms. Barber and vice versa. Yet, if he represents Ms. Barber, he cannot do so, he’s in an ethical pickle!
Furthermore, using one’s position as a city council member or as the mayor to ask the police chief to investigate a political opponent is an abuse of power. Using the police to silence a political opponent is the kind of abuse of power that happens in authoritarian regimes (Mr. Putin approves!) not nice neighborhoods like Kaysville. To me, this is the scariest part.
The city council has a code of conduct. One provision requires them to comply with all laws including those around “open processes of government; and City policies and procedures.” Another section states the “personal conduct of Members must be above reproach and avoid even the appearance of impropriety.” It goes on to say, members shall refrain from “personal charges” upon the character or motives of members of the public. My character and motives have been attacked, personal charges have been made, and the appearance of impropriety has not been avoided.
Lastly, and probably the most serious concern, what would have happened if the city would have done this to someone without the support and resources that I have? I’m blessed to have the resources to hire an attorney to clear my name of these stupid allegations. I’m also lucky enough to be an attorney and can see these attacks for what they are. I’m also blessed to have the support of family, close friends, and the Sons of Kaysville during such circumstances. But imagine the consequences to someone else, with less resources, and less support. The results could be tragic! Imagine if this had happened to you?
So, why did I write this? Well, I want you to know what some of your elected and city officials are doing behind the scenes and how they use their power and influence. It’s been said that character is shown not by what one does when everyone is watching (or by the number of cute selfies posted on Facebook of doing good around town), but by what one does when no one or few are watching. I leave it to you to judge.
Here’s the ethics complaint filed by Ms. Barber along with the letter sent to me by the bar association.
Here’s the letter I filed in response to Ms. Barber’s complaint along with some attachments.
Here’s the Bar Associations response declining to investigate Ms. Barber’s complaint.
Here’s the email chain and report from the County Investigator.
And the County’s statement declining prosecution.
The January correspondence.
Also, while we are at it, here’s an email from Ms. Barber to someone in the Parks and Rec Department, which she oversees, thanking them for giving her extra Jazz tickets. Nice perk!
Also, note here, that Ms. Barber was getting ready to take the mayoral reins after the kerfuffle earlier this year with Mayor Witt.
Here’s the email Ms. Barber sent to Mr. Mills after filing the complaint.
Here’s the attachment written by Jordan Stephenson referred to in Ms. Barber’s email. From my reading, it looks like this document started the whole extortion mess. Also note that much of this memo is recited verbatim in Ms. Barber’s complaint yet written in the first person.
Below is the email chain between the Police Chief to Ms. Barber, Ms. Witt, Mr. Scott, and Mr. Mills describing why he will not be handling the “extortion matter we discussed last night” and stating the county will look into it. It’s impressive how the police chief wisely side stepped a potential political bomb. He punted to the county to allow the county to decline to investigate rather than let down his bosses. I feel bad he was put in this position.
I love Ms. Barber’s perky response to bringing the police power against an opponent: “Thank you for doing this chief.” Is this a “thank you” for doing a political favor to one of the police chief’s bosses, a city council member? Sure looks like it.
