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Thursday, January 16, 2014

Town lawyers acting badly

Dubious billable hours in Woonsocket, North Kingstown cases
By Will Collette
amazing (2799) Animated Gif on GiphyTwo of Charlestown’s special counsels have been in the news lately for dubious work they performed for two other municipal clients. The lawyers are Charlestown’s Special Counsel to Fight the Narragansett Indian Tribe Joe Larisa and Charlestown’s Union-buster Counsel Daniel Kinder.

The Larisa story comes out of Woonsocket and the Kinder story out of North Kingstown.

First, Larisa. Charlestown has paid Larisa over $300,000 in the past few years to fight against anything the Narragansett Indian Tribe tries to do on its own property. Why? Because you just can’t trust ‘em not to put up a casino without making sure Larisa dogs their every move.

Yeah, all that money to watch the Tribe to make sure they don’t do anything. But that’s not Larisa’s only lucrative cause. The Woonsocket Call revealed that after reviewing records left behind by recently defeated Republican incumbent mayor Leo Fontaine, Larisa had found himself another revenue stream.

Joe Larisa
Fontaine had set up a legal defense fund to defend a religious memorial on municipal property, a stone cross memorializing a World War I veteran, against potential lawsuits over the Constitutional issue of the separation of church and state. No such lawsuits ever emerged, but ex-Mayor Fontaine nevertheless hired Larisa to prepare a defense, even though there were several offers to the city from lawyers willing to defend the monument for free.

Even though there was no case, Larisa billed the town for 78 hours of work – he later gave them a “discount” by cutting his billable hours to 58 – and collected $9,806. Click here to read Steve Ahlquist’s commentary on this case in Rhode Island’s Future.

If you review Larisa’s bills to Charlestown (click here to start the thread), you’ll see a lot of hours devoted to research and legal prep on issues involving the Tribe that never involved litigation. Classic.

attorney Daniel K. Kinder
Daniel K. Kinder
The second Charlestown Special Counsel in the news for his work in another town, Dan Kinder, is Charlestown’s go-to guy when the town wants to muscle town employee unions. Kinder has the well-earned reputation as one of the top anti-union lawyers in southern New England. If you want to take a harsh stand with your workers, Dan Kinder’s your man.

So when the North Kingstown Town Council decided it wanted to break its contract with North Kingstown’s professional firefighters, the task fell to Dan Kinder to make it happen.

At issue was whether the Town Council could tear up the firefighters’ contract and impose a draconian new work schedule that including punishingly long work shifts and work weeks of up to 70 hours.

It’s an unsustainable position: a contract is a contract and cannot be changed without negotiations. We all have a vested interest in preserving the integrity of the contract as a binding, legal document because without the firm knowledge that a contract is sacrosanct, commerce would be greatly damaged. After all, how can you make a deal, of any kind, if a contract isn’t a contract?

But Dan Kinder took on the task of trying to prove it isn’t, going up against millennia of established law. And he lost. He lost in arbitration. He lost in front of the State Labor Relations Board. And he lost several times in court.

The most recent defeat was well covered by our friend and colleague Tracey O’Neill who has been following this story in depth for months.

Last week, Judge Brian Stern once again ruled against North Kingstown and validated the decision by the State Labor Relations Board that North Kingstown was guilty of unfair labor practices in its violation of its contract with the fire fighters. Stern dismissed the town’s argument (i.e. Dan Kinder’s argument) that somehow the North Kingstown Town Charter took precedence over state law, calling it “tautological and without merit.” Stern also said it was just as easy to see a mandate in the North Kingstown Charter that requires the Town Council to obey state law in this matter and engage in collective bargaining with its employees.

Kinder gave a statement to the North Kingstown Patch apparently intended to apply a cold pack to the professional black eye he received from Judge Stern. He told the Patch that Stern’s decision was completely predictable since the fire fighter’s case used Stern’s own prior ruling in this case as the basis for the action that led to this latest ruling.

Kinder does not acknowledge that this is what you’re supposed to do – if a judge makes a finding of law, of course you’re going to want to use that as the basis for your additional arguments. But I guess Kinder needed some way to rationalize his losing streak.

Kinder’s statement also reiterates talking points and legal arguments the court, the arbitrator and the SLRB have already rejected – that the new schedule is safer, that it is reflects trends in fire-fighting, that it’s all the union’s fault that no negotiated agreement could be reached, etc.

I understand that lawyers are bound under the lawyers’ Code of Professional Responsibility to honor their clients’ interests and to rigorously represent their clients. However, lawyers can also be held responsible for making meritless arguments and courts sometimes lose patience with lawyers who repeatedly make the same meritless claims.

But more to the point, there sometimes are political consequences for the elected officials in cases like these who throw taxpayer money away on pointless ideological crusades. It’s hard to see the merit in Mayor Fontaine’s use of Joe Larisa’s services, or North Kingstown’s stubborn choice to have Kinder continue to rack up the billable hours in their feud with their own firefighters. 

But we’ve done the same thing in Charlestown.