In a dying declaration, former Eureka Councilman Lance Madsen details an investigation he compiled regarding what he considered to be improper and unethical conduct by the city attorney over how a reported department head "hit list" — written by the former city manager — was distributed around city hall.
In an affidavit provided to the Times-Standard, Madsen claims City Attorney Cyndy Day-Wilson lied to him about city business and attempted to convince another city employee to lie to cover up her alleged role in distributing a confidential memo emailed from then-City Manager Bill Panos to the council on Oct. 4 — Panos' last day in the office.
Multiple calls seeking comment from Day-Wilson were not returned.
"The incidents that I witnessed and that I investigated to the best of my ability given my medical condition are to me of serious and significant concern for the City of Eureka, its elected officials and its employees," Madsen wrote. "I provide my investigative information and statements in the sincere hope that other members of the City Council, employees of the City of Eureka, or other appropriate persons will take up the matters I have raised and see these matters to an appropriate and proper conclusion for the ultimate benefit of the City of Eureka."
Legal experts said the city's options for addressing the allegations include having the Human Resources Department conduct an investigation, with the council making a final determination on the findings during a closed-session meeting.
Written in the last months of his life, Madsen states that the inquiry had been a priority for him since Jan. 17. He also makes clear that he never opened the email attachment from Panos. The affidavit was executed on March 6 and delivered to the council on June 4 by Eureka attorney Daniel E. Cooper. Madsen, who worked as a Eureka Police Department officer and child abuse investigator, lost his battle with lung disease on April 5.
Reached by phone from his new position with the Wyoming Governor's Office, Panos said he hadn't heard about the affidavit. He did confirm that he sent an email to council members sharing his thoughts on reorganization within the city and provided them with a blueprint.
"It's a confidential request by the council to me that I completed at their request," Panos said. "I can't comment any further than that."
When the council approved the 2013-2014 fiscal year budget in June 2013, the number of city departments was reduced from nine to seven, which Panos at the time described as a streamlining measure to improve the city's overall effectiveness and efficiency.
Mayor Frank Jager said he doesn't recall the council requesting the reorganization email, but Councilman Mike Newman said he had continued to ask Panos about the plan.
"I wanted to find out what he was looking to do," Newman said.
Jager declined to comment on the affidavit.
"It's a personnel issue, and I really can't comment on it right now," Jager said.
Councilwoman Marian Brady said the entire council received a copy of the document. Attempts to reach council members Chet Albin and Linda Atkins were unsuccessful.
The city has not responded to a Times-Standard public records request for a copy of Panos' email.
According to the six-page inquiry, which contains several misspelled words and names, incorrect dates and a cut-off section, Madsen states he had a series of conversations with staff and some council members in October and November 2013 after hearing "mutterings" about the "reorganization document" email while in city hall.
Madsen's affidavit describes a meeting with Day-Wilson over the memo.
"She stated that the memo was very negative about her and a number of department heads," the affidavit said. "She stated that it was unfortunate that it got distributed and she wasn't sure how that happened."
Madsen states in the affidavit that he repeatedly questioned Day-Wilson about where she got the memo until she named Councilwoman Melinda Ciarabellini.
Madsen writes in the affidavit that he later met with Ciarabellini, and that the councilwoman told him that she didn't know how the memo had been distributed among city staff. Madsen states Ciarabellini said she had given a copy to Day-Wilson over concern that the memo might spark litigation by those named in the document.
When contacted by the Times-Standard, Ciarabellini declined to comment.
Madsen's affidavit also recounts his conversation with then-Community Development Director Rob Wall about the email, which is also referred to as a "hit list." Madsen's affidavit states that Wall told the councilman that Day-Wilson provided both him and Personnel Director Gary Bird a copy of the memo at a meeting, and that Wall was later approached by Day-Wilson and asked to say he read the document after seeing a copy on her desk while waiting for her. Wall refused to comply, the affidavit said.
Wall declined to comment for this story.
Madsen's affidavit states that when he attempted to have the issue of the memo put on the council's agenda on the advice of outside counsel, he was shut down by two unidentified council members who "walked out in defense of the City attorney and in protest" over Madsen having consulted an outside attorney.
Legal experts' view
Center for State and Local Government Law Director David Jung, of the University of California Hastings College of Law, said Madsen's inquiry into the memo incident was not a violation of Eureka's city charter.
"It's really more of a whistle-blowing situation than an interference with staff," Jung said. "This is a situation that I have not seen before. And I'm tempted to say the council member isn't attempting to influence staff and is not giving orders to staff. He is just bringing a situation to their attention. I'm waffling here, because I really haven't seen a situation just like this."
Jeffrey Hare, a local government adjunct professor at the Santa Clara University School of Law and former assistant city attorney for the city of Sunnyvale for nine years, said the issue "appears to be a personnel matter."
"With the council member investigating the case on his own, and not at the direction of the majority of the council, their allegations are treated the same as any citizen making a complaint about an employee," Hare said.
Hare said the city's Human Resources Department would have to conduct an investigation, with the council making a final determination during a closed session meeting.
Investigations by council members "happen from time to time, but there is a procedure for dealing with it," he added.
City Manager Greg Sparks said the city views this as an employer-employee relationship issue.
"I think it will be up to the council on what to do with this," Sparks said. "No decision has been made at this time."
Bird declined to comment. Finance Director Paul Rodrigues, also mentioned in the affidavit, directed the Times-Standard to Sparks.
Sparks said his goal is to make sure the city is functioning at a high level, and providing services to the community.
"We really want, just as a staff, to move past any problems that may have existed in the past," Sparks said.
Contact Lorna Rodriguez at 441-0506 and Will Houston at 441-0504.