MEMO
A way for citizens to hold them accountable or even oust them from office…
A CITIZEN REMEDY BASED ON FIDELITY BOND CLAIMS…
So I have been considering if and how local elected officials can be forced to comply with the law – asking this question is a sad commentary indeed but well justified…
In particular I am still battling the Idaho County Commissioners on a variety of land use and public access issues. Of course we all know that the driving force on this board is Skippy Brandt – our own local career politician.
I have complained and written to the Board and the newspaper about Skips absurd (and I believe phony) attitude towards what he calls “private property rights”. I have attached one letter which documents some of the issues. This letter is just one of many I wrote.
In short, Skippy thinks anyone can do whatever they want on their property. OK that’s almost true but almost is not a license to damage your neighbor’s property or violate the law. I say phony because Americans believe in private property rights, but Skippy has an unreasonable, wrongful and an extreme definition of “private property rights” which is in direct conflict with the “public rights” that he swore an oath to uphold. Examples:
- Brandt vacates public roads and trails because they impact private property
- Brandt grants variances because he does not believe in the zoning laws.
- Brandt claims if you don’t like what your neighbor does buy their property.
- Brandt refused to follow state land use law until he was personally at risk
- Brandt refuses to follow the county land use ordinance he signed into law
This is absurd. Ignorance and arrogance is a dangerous combination, my friends…
I don’t want to devote too much time describing Skip’s errors because the focus of this memo is to help everyone understand the potential REMEDY. I suspect there are MANY such stories and we want to document them all – my most recent include:
- Closing public road with no grounds – Harming property owner’s access (some land locked) and public use of Milner Trail recreation and access and Elk City Road right of way
- Did NOT follow due process with Validation’s/Vacations (Milner field trip, OSFH18 and others?)
- Variances – illegal issuing of harming private property owners.
- Speed limit – Discouraging by requiring expensive Traffic Study, when is not necessary
- Road Map – Public ROW – did RS2477 map but did not do the required every five year up date Map of ALL the public Rights of ways.
- Wasting tax payers money Paying for “Special prosecutor” – serial prosecution.
- Wasting tax payers money litigation costs for errors – NOT representing PUBLIC representing PRIVATE ( property rights)
- Was threatened by the Attorney General’s office to comply with the law or face personal sanctions.
So now on to the idea – I had this idea but shelved it for a while because it has a lot of issues, and I got distracted with other projects. However, at the last Comm+ meeting I was approached and asked if I would assist in a “FOIA” request [ FOIA = Freedom of Information Act ].
In discussing with this person it turns out he was seeking County documents with an eye to filing a claim on the County bond so that is not FOIA (that’s federal) it’s an Idaho Public Records Request. Anyway, he had a lot to say and I was not sure what the exact incident or issue he was focusing on and he had a variety of different ideas and theories – most of which I did not feel were viable but that’s another story…
So I asked him for some source of his theories and he wrote down a name I googled and this gal – Miki Klann – has filed claims in Arizona against School board members seeking damages and to reverse school board mask mandates. She put out a video and has a website but I caution you her approach is over-simplified.
Why do I say this? Miki correctly points out that every state has what are called “fidelity bonds” which is similar to a “bail bond” which is a fixed sum of money put up to “insure” that you show up for trial – if you fail the state takes the bond money and the bail company wants to find you…..
A fidelity bond is a similar “insurance” which compensates the state in case of employee or elected official theft, embezzlement, or other loss to the state. In the case of fidelity bonds “fidelity” means trust and honor to the company or – in this case – the govt. entity you work for – so it is INTENDED (this is important later) to cover things like employee theft, embezzlement, fraud, and so on. The party to be protected is in theory you the public, but in reality it’s the government entity. So if the county auditor steals money the County makes a claim on the bond to get its money back.
Some states including Idaho allow the government entity to use “fidelity insurance” and not a fidelity bond. It is more efficient for the govt, agencies and entities to deal with. The legislature considers it essentially the same but IMO it is not – but that’s a different topic…for one reason a bond is a tangible property which can be “attached” (seized by a creditor). You cannot do that with a policy…just sayin…
Also every state has a legal requirement that elected officials swear sign and file an oath to uphold the law and constitution of the state. So now some people have fastened on to the idea of connecting the two items – the bond and the oath – the concept being that a breach of the oath can give rise to a claim on the bond. So is this possible? Yes it is, but there are a number of legal and practical barriers which must be considered…
Idaho County has insurance, not a bond. I have a copy of the policy. It provides up to $500,000 coverage for “Employee Dishonesty.” I also have copies of the signed sworn oaths of all 3 commissioners. So the idea is to identify a breach of duty, then make a claim on the policy and/or seek other kinds of relief, and force them to defend.
So first a citizen has to identify an insured “breach.” Does a failure to follow the law make a breach where a citizen can sue? They will say NO — Employee dishonesty coverage is insurance protection for employers, in the event an employee steals from them, not from the public.
In the Miki Klann case her claim is that by imposing health/mask mandates the school board unlawfully practiced medicine and claims millions in damages. I doubt this claim will survive long in the legal system – such that it is – but just the filing and process and the publicity is a good thing. Which brings me to the “barriers”…
I wont try to go through the whole story. Just consider that the bond/insurance and state law go a VERY long way to insulate themselves from citizen claims. In contrast, a claim for, say, embezzlement will be paid without any argument. Second, every public official enjoys a broad IMMUNITY from all citizen claims – yes I said IMMUNITY – which means they cannot be sued – period. There are of course exceptions which we can use and this is a complex topic beyond the scope of this memo. Immunity has historical roots and purposes which like many such, has been WEAPONIZED against the citizens. It’s a VERY bad situation – and I guess I will devote a future memo to that topic… but I digress…
So one of the exceptions to immunity are state and federal laws which PERMIT certain lawsuits against the government. These are commonly known as “Tort Claims Acts” and to make a claim citizens must follow a detailed, difficult and time sensitive process. If you miss anything you LOSE automatically – not nice…Links to the Idaho Code cite and an “instruction sheet” are at the end if you want to see them.
So once you make the claim and get started now the state brings in its team of specialized lawyers to battle you at public expense. No govt employee or official pays a PENNY for this cost or for any damages you prove (with some remote and unusual exceptions). They will file a motion to dismiss and odds are in many cases the court will grant it – that is just the reality of the court system which has also been WEAPONIZED against ordinary citizens – again another long story…. The claims that survive are almost all ordinary personal injury stuff…. (thank you ambulance chasers).
There is one HUGE legal issue which I want you to know – and I can say that the state lawyers and their judge friends either don’t know this or more likely, ignore it because its inconvenient for them and critical to citizen rights. And that is:
THE DIFFERENCE BETWEEN A CLAIM FOR MONEY AND ONE FOR INJUNCTIVE OR DECLARATORY RELIEF
We all know what a money claim is and that is what the Tort Claims law deals with – liability for money damages.
Injunctive relief is the Court’s power to order something to be done or to stop being done.
Declaratory relief is the Court’s power to rule on a controversy in effect giving a “binding legal opinion” to the parties in the dispute.
Why is this important? Because according to long established US Supreme Court decision the state and federal government are NOT immune from a claim for INJUNCTIVE OR DECLARATORY RELIEF. This was the decision in Ex Parte Young, 209 U.S. 123 (1908), which stands for the principle that sovereign immunity does not prevent people harmed by state agencies acting in violation of federal law from suing the officials in charge of the agencies in their individual capacity for injunctive relief.
There was no other possible decision, because to rule otherwise would destroy one of the most important legal devices passed on to us from England: That is the Writ of Habeus Corpus… which is Latin for “show me the money.” That’s only a half joke it means “show me the cause” of incarceration or the court will demand you to RELEASE THE PRISONER.
The great legal scholar WILLIAM BLACKSTONE declared this as the most “great and efficacious writ in all manner of illegal confinement…” If the court applied government immunity to this conduct and writ, there would be nothing left, so this exception has been in place for over 100 years. THAT SAID I have personally been involved in cases where the judge IGNORES this law and dismissed a claim for injunctive and declaratory relief, based on immunity.
My personal goal is NOT to sue for money, but to force the County to follow the law. But courts are more prepared to deal with cases under the Tort Claims Act and certainly the threat of money damages is a strong weapon. So I plan to make a claim under the Tort Claims Act and INCLUDE claims for injunctive and declaratory relief. That way we cover both legal issues. HOWEVER, this does present some additional barriers and issues.
To claim damages we need persons who ARE damaged by the County conduct, and the more the better because the more claims the more risk the County has. I will go this alone if I have to but I hope that is not the case. Any of you that have gripes and complaints with the County – now is the time to step up. I have attached the official complaint form and instructions. I listed my complaints above, and you can use any on the list that apply to you. For example if your neighbor got a variance, or if you want to use Milner Trail etc, but if you have others by all means write them up. Don’t be too bothered by all the details on the form – just do the best you can, and don’t send it in – we will collect as many as we can and submit as a package. The law is clear on this:
A claim filed under the provisions of this section shall not be held invalid or insufficient by reason of an inaccuracy in stating the time, place, nature or cause of the claim, or otherwise…”
Here is one main complaint based on a January meeting:
Jan 6th 2024 MINUTES Commissioner hearing: Brandt proposes closing the portion requested in the petition pending a decision on the vacation-discussion. Brandt moves to close the portion of presented in the petition pending a final decision on vacation. Lindsley seconds. Motion carries with all in favor.
So Brandt has now CLOSED a public road because he wants to VACATE the road and make the private property owners happy – CLOSING Milner Trail without legal process.
I believe this and other decisions led by Brandt violate his oath and also Idaho Code Section 31-855, which provides:
“NEGLECT OF DUTY BY COMMISSIONERS. Any commissioner who neglects or refuses, without just cause therefor, to perform any duty imposed on him, or who willfully violates any law provided for his government as such officer, or fraudulently or corruptly performs any duty imposed on him, or willfully, fraudulently or corruptly attempts to perform an act, as commissioner, unauthorized by law, shall be guilty of a misdemeanor.” https://legislature.idaho.gov/statutesrules/idstat/title31/t31ch8/sect31-855/
Claims under the Tort Claims are VERY time sensitive – the Court will only consider tort claims for things that happened within the last six months. OH would it not be nice if the IRS only had six months to audit INSTEAD OF SIX YEARS? The time limit for declaratory and injunctive relief is different but we will deal with that if and when the time comes…
I also believe this and other decisions led by Brandt violate the citizen’s right to due process.
Idaho’s Constitution follows the Fifth Amendment to the United States Constitution which provides that no person be deprived of life, liberty or property without due process of law, and that private property cannot be taken for public use without just compensation. The Fourteenth Amendment reiterates that no state may deprive any person of “property, without due process of law.”
The purpose for zoning regulations in Idaho are: (1) to promote the health, safety and general welfare of the citizens (2) to carry out the policies of the State and Local Comprehensive Plan; and (3) to provide standards of orderly growth and development and avoid undue concentration of population and overcrowding of land. Brandt refuses to follow the law and creates damage to the entire County.
Neither Brandt, the County, nor any citizen has made a claim of “wrongful taking” of their land and there have been no claims under the Idaho Regulatory Takings Act, Title 67, Chapter 80, Idaho Code. Further there have been no actions under Idaho Code Section 67-6523 which provides authority to County to take actions in an emergency. The actions are arbitrary, unlawful and harm every citizen in the County except a small handful of private property owners who are served by Brandt.
Right now the aim is to present the County with as many valid citizen complaints as possible and force changes in accountability and transparency as well as specific policies. Anyone interested? Let’s see what happens….
NEXT STEP is to launch a RECALL petition on Brandt. It’s shame no one would run against him but we all know why… more to come.
Links
https://adm.idaho.gov/wp-content/uploads/2022/01/risk_Citizen_Claim_Procedure3.pdf
https://adm.idaho.gov/wp-content/uploads/2018/12/Risk_Notice_of_Claim2-2.pdf
