The City of Denison will pay a $13,500 bill from Des Moines Attorney James Gilliam who, from late December last year through late February, served as the independent investigator into actions of three city administrators.
The investigation resulted in no action taken against the three, who were reinstated after being placed on paid administrative leave from December 18 through January 8.
Gilliam’s bill had not been paid until now because of claims that Mayor Jared Beymer personally should be responsible for it, not the city.
The claims for Beymer’s responsibility are based on the existence of two versions of a contract, or engagement letter, with BrownWinick Attorneys at Law, a Des Moines firm that was hired as the city’s special counsel to direct officials through personnel matters pertaining to the investigation. The two versions are dated December 14 and December 21.
When the city council members voted to hire BrownWinick at a special meeting the morning of Friday, December 21, they had seen only the December 14 version, which was sent to Beymer’s official city email address.
The December 21 version that Beymer signed (two days later) was not emailed – to Beymer’s city email address – until 6:18 p.m., nearly 11 hours after the 7:30 a.m. meeting began.
Among the differences in the two versions is the language regarding what the city would be responsible to pay for. The December 14 contract says, that in addition to certain named services, the city would be responsible for other costs and expenses incurred on its behalf and that certain large costs and expenses would be forwarded directly to the city for payment to a third party or may be requested in advance of the cost being incurred.
The December 21 contract specifically said the scope of representation would include engaging an independent investigator.
Before Tuesday’s meeting, the last time the bill was on the city council’s agenda was May 21. At that time the city was in the process of appointing a new city attorney. At the next meeting, on June 4, the council said it would not act on the bill because it was waiting for the opinion on the new attorney, Matthew Brick, of Brick Gentry, P.C., of Des Moines.
Councilman John Granzen said at a number of meetings that Beymer should pay for Gilliam’s invoice, as well as all costs involved in the investigation, because the council had voted on the December 14 version of the BrownWinick contract, not the December 21 version that Beymer had signed.
When Beymer came under fire at the March 19 meeting for the two versions of the contract, he said he had uploaded the wrong version to the city’s drop box, calling it a draft.
At another meeting, Beymer was challenged on that response because the time on the December 21 version was 6:18 p.m. the same day.
Former police chief Rod Bradley was the individual that first pointed out in a public meeting that two versions of the contract existed and had said Beymer should be responsible for Gilliam’s bill.
However, Brick’s opinion is that the city is responsible for Gilliam’s bill, based on what he called standard language in the December 14 contract - that the city would be responsible for other costs and expenses incurred on its behalf.
But Brick also said in his opinion that the December 14 contract is the legal contract and that the December 21 contract is void because the council never approved the language of that agreement. He cited the city ordinance that the city is not bound by a contract unless it is approved by the city council.
He said given the standard language in the December 14 contract, the city agreed to the investigation.
Based on Brick’s opinion, the council voted 4-1 on Tuesday to have the city pay Gilliam’s bill. Councilmen David Loeschen, Corey Curnyn, Nathan Mahrt and Granzen voted yes; Greg Miller, who was appointed to the council earlier at Tuesday’s meeting, voted no.
Before the vote, Mahrt questioned the expenses on Gilliam’s invoice that involved calls and time spent between the independent investigator and Mark Sherinian, a Des Moines attorney who represents two of the city officials who were investigated, City Manager/City Engineer Terry Crawford and City Clerk Lisa Koch.
“I don’t know what the ramifications of that are,” said Mahrt. “Is that the way it works? I don’t know.”
“He was getting information that he needed,” Crawford replied.
Beymer said that he had asked Ben Morrell with BrownWinick that question, but then the city terminated its agreement with the law firm and the question was not answered.
Bradley also spoke on the topic before the vote was taken. He pointed out that the December 21 contract was void because the entire process was not handled correctly as it was done without the council’s consent.
“He (Brick) only decided to pay this bill because he felt the first contract was ambiguous enough that it would include the charges by Mr. Gilliam,” Bradley said. “I feel bad for Mr. Gilliam. I think that guy has been held up the longest on this whole thing. His bill should have been paid a long time ago, but the bottom line is it goes back to it was not handled properly from Day 1, and certainly not handled properly with this contract that the council had never seen.”
Gilliam’s bill had not been sent specifically to city hall until April 22, according to a copy of an email in the city’s drop box. The document said the city received the bill on April 23.
The bill is in the form of two invoices, one for $12,500 for services from December 19 through February 1, and the other for $1,000 for services from February 12 through 26.
However, Bradley had received a copy of Gilliam’s two invoices in an email on April 9 as part of an open records request made to the city pertaining the two versions of the BrownWinick contract. Included in the documents was a March 1 email chain that originated from Gilliam. He had sent the email to Merrill and Ann Kendell, of BrownWinick, and said the invoice for his February services was attached. Gilliam’s email had been forwarded by Merrill to Beymer and copied to then Assistant City Attorney George Blazek on March 13.