Tuesday, January 8, 2013

Enigma Wrapped Inside a Conflict

Today the new Council convenes for the first time. Congratulations to all of the newcomers on their election victories and for confronting what are surely the strangest circumstances ever to be faced by a new Council.

Their expected term is just over 4 months long. Among the many issues they will face in that short period of time, the County is dealing with two lawsuits. The lawsuit regarding the propositions may or may not result in this Council serving longer than 4 months. Time will tell.  In addition to that lawsuit, there is yet another lawsuit, involving secret meetings on the CAO, and that suit directly involves two former Council members and one sitting Council woman from the current short-term Council. Depositions were taken recently in the "secret meetings" lawsuit. No details are yet available; however, in that case, the County Prosecutor ostensibly is representing the two former Council members, one of whom (Lovel Pratt) is a current election opponent of two sitting Council members (Bob Jarman and Marc Forlenza). In addition, a Deputy County Prosecutor, Jon Cain, is encompassed by that suit too (since he participated in the "secret meetings"), and Cain could be deposed as well. I guess if that were to ever happen, we'd have the spectacle of Randy Gaylord sitting there in the deposition "defending" Jon Cain of his own office while Cain was deposed.

Does any of this seem crazy to anyone else? Why don't these people have their own attorneys? They are individual litigants. New Council member Rick Hughes went so far as to offer to purchase his own computer so that he doesn't impinge on County resources (bravo btw), and yet we have ex-Council woman Pratt being defended by the County, which is now officially comprised of her election opponents.

I'm probably old-fashioned, but I thought that when attorneys were contemplating representation of multiple clients, they were obligated to conduct due diligence to evaluate whether the collective individual interests might be in potential conflict. I am not sure everyone's interests are aligned here. Depending on the evidence and how this sorts itself out, could not the County have (at least the potential) for claims against the individual litigants (e.g., Pratt, Miller, Fralick, Cain, Hale, etc.)? Could not the individual litigants have potential cross claims against one another? As just a hypothetical, even I can imagine situations where, for instance, evidence emerges from some litigants that suggests another litigant may have perjured themselves, or where testimony from one litigant incriminates another. I am sure there are many other potential misalignments among the parties involved.

Like so many County matters, this whole affair seems rather messy.  Seems like the potential for a classic Prisoner's Dilemma to me.


  1. How does that old tune go . . . "Send lawyers, guns and money, the shit has hit the fan"

  2. Ohhhhh Mr. Heron you have it all wrong.

    It is by design.

    How else could Randy Gaylord decide who takes the fall, who is spared, and therefore, who will ever be beholden to the one, all powerful, Randy. Amen.

  3. What a wonderfully insightful idea that this situation presents a classic prisoner's dilemma.

    For Pareto optimality to be achieved, the County and the three individuals must arrive at a solution where no one can be made better off without making at least one individual worse off.

    But to achieve Pareto efficiency, the parties must have the transactional efficiency that Ronald Coase envisaged. Coasian analysis would dictate that the parties must be able to measure (or perhaps more appropriately, evaluate)the utility of outcomes and then trade with the other prisoners in order to arrive on the Pareto frontier of optimal outcomes.

    The problem here, of course, is that with single representation, the prisoners never achieve the two prerequisites for Coasian efficiency. 1) they cannot accurately measure the utility of outcome; and 2) they do not have the ability to efficiently trade the outcome.

    Good on you Trojan Heron for bringing this to our attention.

  4. "As Gregor Samsa woke up one morning from awful dreams, he found himself transformed in his bed into a monstrous vermin."

  5. Pratt and Miller, and anyone else involved in the secret meetings should never elected to public office again.

  6. Randy working as their lawyer can NOT be legal. Can it?

  7. I'm confused (as I often am ...)

    So, in depositions, the deposed clearly have the right to counsel.

    Did none of them exercise that right to personal counsel?

    And so Randy has sort of been defacto counsel to the deposed as well as his duty of office to protect the interests of the County?

    Is it the case the deposed understood and then waived their right to independent counsel and flung themselves on the mercy of the County Prosecutor to represent their interests, jointly and severally?

    That Kafka quote is beginning to make sense ...

  8. It sounds to me like you understand perfectly.

  9. Do we have a hearing date on the challenge to the 3 member council election?

    I'm hoping that question can be aswered without me needing a full deposition - in which case I will have to file a counterclaim to the prefunctory claim in order to establish standing as a interested non-litigant party. All of which will require a permit.

  10. Feb 4, I think, but don't fret, if a deposition is needed, I don't see why Randy can't represent you too. Randy can represent everyone, on all sides.

  11. we could resolve the issues simply if we could "in addition to public prosecution" Add Public defense to the spectrum of Public Process :) ""Really!""

  12. Prosecuting attny's office stands firmly on the grounds of representing county Government, even if it is the criminal and the public is the victim. the PA website.
    Been there, done that, that is why If you are abused by any part of your County or its employees, This is not a good place to be
    Somebody failed to consider something?

  13. Is a cockroach "vermin" and does anyone here want to buy a Coase book that I purchased by mistake?

  14. Anyone else notice how efficient and functional the new Council was today? What was missing? Fralick? Nah, he didn't muck things up. Howie? Nah, he wasn't awake often enough to. And Patty Miller was absolutely fearless and inspired today! I guess that leaves Lovel Pratt. Hhhmmm.

  15. Is a cockroach a vermin?

    Ah, the genius of Kafka, like the Critical Areas Ordinance, he leaves much open to individual interpretation.