I Do Requests: Castle v. Esslinger

[Seriously, you should hear my karaoke version of "I Can't Help Falling in Love with You" -- it'll break your heart if it doesn't break your eardrums first.]

Babblemur wants me to chime in on the Castle-Esslinger imbroglio, so without further ado ...

First, may I ask you all, dear readers, to put your hand to your ear and listen closely ... can you hear that soft and repetitious thud in the distance? That's me slamming my head against a brick wall.

Let's look at what is clear: there was no wrong-doing on Esslinger's part at the closed door meeting. The DOJ report makes this very certain. In particular, may I suggest close readings of pages 4-6 of the report where the issues of privilege and "good faith" are discussed. So if there is any silver lining to this whole mess, it's that no one is going to jail.

Now the issue does not seem to be if whether a crime was committed, but if Bill Castle owes Paul Esslinger restitution for the legal fees incurred during the investigation. Cheryl Hentz argues that Esslinger is responsible for his own legal bills. Kent Monte thinks Esslinger is the last person who should pay the bill. Paul Esslinger himself wants Bill Castle to foot the bill and has sent him a letter asking for as much.

Now, remember how I stressed a close reading of pages 4-6 of the report? Well, Esslinger would do well to follow this advice. This part of the report, in a nutshell, says that there is no reason to prosecute Mr. Esslinger because, while what he did during the closed door meeting may have been inappropriate in the eyes of his colleagues, he was acting in "good faith" according to his position as a member of the common council, which is to say that his questioning of Mr. Wollangk did not constitute extortion.

In other words, the report very politely says: Esslinger may have been pushy, but he wasn't trying to blackmail anyone. End of story.

Let's backtrack a bit and examine Castle's position in this mess. As an officer of the council, Castle would likely have an obligation to report any illegal actions (I'm not 100% as to what this entails, but clearly there is an obligation of some kind). Clearly, Castle believed that Esslinger crossed the line during the closed meeting and asked DOJ for an investigation.

Since the investigation has concluded that basically nothing happened, it's my understanding that Esslinger and Castle basically start back at square one in the eyes of the law. If Esslinger wants Castle to pay for his legal bill, Esslinger will now have to prove that Castle acted in "bad faith" when he requested the DOJ investigation.

Note to Esslinger: the bar for the burden of proof in these kinds of cases is set very high. Unless you can find someone who heard Castle say "Yes, I ordered a frivolous investigation of a political opponent to embarrass him in the media, sully his reputation, and marginalize his stature on the council!" or you can find an e-mail that says same (or something similar to that effect), you will lose any lawsuit you file against Castle seeking damages. Furthermore, he could conceivably counter-sue (see where this is going?) and by the time this whole thing is over a $1700+ bill for legal fees will look like a mighty good alternative to the bill you could be looking at.

The question of the city attorney's legal advice is actually pretty straight forward. Kraft's advice was that Esslinger's conversation with Wollangk regarding the "city employee" was legal, but that he should tread lightly. Evidently, what got Esslinger in trouble -- and not just in the eyes of Castle, but also with several other council members, according to the report -- was that he did not tread lightly. Many people in the past have seen Kraft's legal advice as being simply exercises in one hedging his bets -- not so, in this case. In my reading of the report, Kraft very correctly seems to say "Proceed with caution." Perhaps he should have used those exact words when dealing with Esslinger, but by now Paul should start seeing yellow flashing lights whenever he hears a lawyer talk about "appropriateness."

Anyway ... Moral of the story: when in doubt, tread lightly.

Being an elected official isn't all about zoning variances, cracking down on underage drinking and getting your name in the paper -- you know, the sexy things. It also comes with countless occupational hazards that are not to be screwed with. Being investigated is one of them. We hold our public officials to a higher standard than the rest of the citizenry and this is the ultimate price of assuming a leadership position in the community. Anyone who is unable to accept this risk has no business in public life.

Mr, Esslinger, if you're reading this, here's what you should do: If paying the legal fees is a financial issue, go to the state Elections Board and see what you can do about holding of fund-raiser to help cover the cost of your representation during the investigation. Last April you got 4269 people to vote for you for mayor. If 345 of those people (that's all of 8% [*] of the people who voted for you) all chipped in $5 each you could go over to the Dempsey Law firm yourself, pay the bill, and still have enough change left over for a few beers across the street at Screwballs. Many of your supporters are very vocal participants in online civic discussions -- I don't think it would be too much to ask them to put their money where their mouths are.

You're not going to get a dime from Bill Castle or City Hall (nor should you) and if you continue to pursue either of those avenues you will only succeed in further lining the pockets of your lawyer. Politically, this is not something you want to have festering on in the pages of the Northwestern for weeks on end. The sooner you're able to get beyond this, the better.

[*] CORRECTION: Yeah, I do math pretty: Originally I said 12.5%. This figure is obviously wrong. My bad.