throws in the towel
'The votes aren't there'
reimbursing misconduct legal bills
By GEOFF DAVIDIAN
Putnam Pit editor
COOKEVILLE, Tenn. (Feb. 19, 1997) -- City Councilman
Don Wagnon today told The Putnam Pit that he withdrew his request
for city reimbursement of his $10,000 legal bill incurred successfully
fighting a felony official misconduct charge because he couldn't win.
"The votes were not there," Wagnon said. "I'm just beating
a dead horse."
Wagnon said he spoke this week with City Manager Jim
Shipley about how the rest of the council felt about reimbursing the money,
and Wagnon said Shipley told him there were two members for and two against
Shipley had no comment today.
Wagnon said he would not identify who was for or against
his bid to recoup the money. "I [would] just as soon not raise names,"
he said. "But it was split, two for and two against."
Every phone call received by one member of the council
was opposed to reimbursement. "Right now, I'd have to say I oppose it,"
the council member said.
who voted with the unanimous council Jan. 16 in favor of asking the
state attorney general for an opinion on the legality of a reimbursement,
said he would not have voted to break the tie. Nor could he have because
of the obvious conflict of interest.
Shipley's spokesperson, Gail Fowler, said Shipley would
issue a press release Friday (Feb. 21) on Wagnon's withdrawal.
In January, Shipley said he thought taxpayers should
pay the politician's legal bills.
Shipley told The Pit that discussions with Wagnon
about the reimbursement began several months earlier.
"He asked me if we could look into it, as you might
imagine," said Shipley. Shipley said he asked Wagnon to obtain from his
lawyer, Don Dickerson, "a written defense of the case." The item was then
placed on the agenda for the Jan. 16 council meeting. Shipley stated that
while he put Wagnon's request before the council, "I did not make a recommendation."
But asked whether he thought Wagnon was entitled to the money, Shipley
said, "Yes, I do."
Meanwhile, Councilwoman Bettye Vaden moved the council
seek the advice of the state attorney general before the council voted
on the reimbursement issue. No answer to that request has been received,
according to city officials.
In his letter dated Dec. 24, 1996, Dickerson wrote:
"To Whom It May Concern:"
"Mr. Don Wagnon has requested I outline to the Cookeville
City Council the basis of his defense against the outrageous indictment
brought against him by District Attorney General Bill Gibson. As you all
know, Bill Gibson initiated an investigation of certain members of the
Cookeville City Council pertaining to Sunshine Law violations. From my
view of the record, he used four T.B.I. agents of a period of approximately
four months to investigate certain members of the Cookeville City Council
pertaining to everything they had done since they were in office.
"It appears the investigation was a waste of time
since the only criminal charge Gibson presented to the Grand Jury was against
Don Wagnon for allegedly using his elected position to wrongfully influence
former Cookeville City Police Officer Tim Lane to reduce a $50 ‘failure
to yield right of way citation' to a warning. This citation was issued
to 80-year-old Henry Thrasher.
"First and foremost, it was and still is my opinion
that Don Wagnon was absolutely innocent of this specious charge. Don Wagnon
met with Tim Lane in his front yard on only one occasion approximately
one month after the ticket was issued to Henry Thrasher, who filed a complaint
against Tim Lane with the Cookeville City Police Department the day after
he was cited. Henry Thrasher complained that Lane was physically abusive
toward him. Don Wagnon inquired about the Thrasher matter with Tim Lane
only because he was concerned about another lawsuit against the City based
on abusive conduct by a police officer against a citizen. Don Wagnon had
no personal interest and he never talked to Henry Thrasher at all about
the ticket. On this one meeting with Tim Lane, Tim Lane assured him that
he had no hard feelings against Mr. Thrasher, and would go and see him
and work it out. Tim Lane never did this. Tim Lane instead tried to cast
Don Wagnon in an unfavorable light in order to transfer the heat off himself.
"The defense maintained to the jury was that
Don Wagnon was in fact innocent and was in fact only acting in the interest
of the City of Cookeville. The jury unanimously acquitted Don Wagnon."
In a Dec. 31, 1996, letter, City Attorney T. Michael
O'Mara wrote in a letter to Shipley that after reviewing material on the
matter he decided the council would be acting within its authority to give
tax money to Wagnon to pay off his lawyer because, in O'Mara's opinion,
Wagnon was acting "within his authority under Section 2.05 of the Cookeville
City Charter when he undertook the investigation into Mr. Tim Lane's conduct."
"While the criminal action against Councilman Wagnon
is not expressly an action where the legal expenses were incurred in the
performance of Councilman Wagnon's official duties, it is clear that the
allegations against the councilman rose out of the councilman's performance
of his official acts."
It is not clear whether Don Wagnon meeting "with Tim
Lane in his front yard on only one occasion approximately one month after
the ticket was issued to Henry Thrasher," as Dickerson wrote, constitutes
an "investigation," as O'Mara states in his letter.
This much we do know: When The Putnam Pit asked
for documents regarding the reimbursement issue, the city manager's office
provided Dickerson's and O'Mara's letters.
The original story out of Shipley's office was that
Wagnon came to visit Shipley in December and had Dickerson's letter with
him. Shipley read the letter then immediately called O'Mara to ask what
authority the city council had to reimburse Wagnon. A week later, O'Mara
wrote back to say it would be within the council's authority.
However, a Pit search of public records
showed O'Mara included the Wagnon legal fees issue in his Dec. 6, 1996,
$5,058.75 bill for professional services.
Thus, the letters from O'Mara and Dickerson were generated
after the discussions and research were carried out. Furthermore, Shipley
said that should the city decide to pay Wagnon's legal fees, he did not
think it necessary to request an itemized statement of actual costs. Nor
was it clear whether the city would look into whether Wagnon had already
paid Dickerson. Generally, lawyers keep two sets of books -- one to show
the court when it comes time to ask for legal fees, the other based on
what was agreed upon between the lawyer and client in case the client has
If Wagnon has actually paid $10,000 to Dickerson, then
it would be reimbursement. However, if the city assumes responsibility
for reimbursement of the fees, it would be up to the city to inspect the
charges and determine they were warranted, and at the same per-hour amount
that Wagnon would have paid had the city not taken up his cause.
There are also some questions about the bill that need
to be answered. For example, Dickerson charged Wagnon, if the bill is legitimate,
$250 for the video deposition of Thrasher. However, a deposition is part
of a civil case, not criminal. Also, if the city is going to pick up the
tab, would Wagnon's file, now with Dickerson, have become a public record?