Fairview Heights Mayor Gail Mitchell knew very little about a class action lawsuit the city filed against online travel agencies in October 2005, and did not know how the city would pay for lawyers leading the suit, according to his testimony.
The case, which was originally filed in St. Clair County, but then moved to federal court, hit the wall this week. U.S. District Judge David Herndon on March 31 denied plaintiff's motion for class certification in Fairview Heights v. Orbitz.
Mitchell was deposed by defense attorney Paul Chronis of Chicago on March 9, 2007, about six weeks prior to his bid for re-election to a fourth term.
City attorney Al Paulson represented Mitchell at the the deposition. Paulson had asked for the deposition be kept from public view until after the April 17, 2007 election so that it could not be used for political purposes. It was kept under seal until after the election in which Mitchell narrowly defeated challenger Vic Canty.
Paulson's private lawfirm, Becker, Paulson, Hoerner & Thompson of Belleville, helped litigate the class action suit on behalf of Fairview Heights, as did Richard Burke of St. Louis, Paul Weiss and William Sweetnam of Freed & Weiss of Chicago, Bradley Lakin of the Lakin Law Firm in Wood River, William Harte of Chicago and Karl Barth of Lovell Mitchell & Barth in Seattle.
The Record obtained a copy of the depostion, which can be viewed here in its entirety.
In the following excerpts, questions are asked by Chronis (Q) and answered by Mitchell (A).
Paulson intervenes on Mitchell's behalf throughout the deposition.
Lead plaintiff attorney Burke was present for the deposition.
Q: Do you understand that you are being deposed today in connection with a piece of litigation that the City of Fairview Heights has filed?
Q: And you have already testified that you don't know anything about that lawsuit, correct?
A: That's correct.
Q: All right. Do you know that the lawsuit was filed against on-line travel companies?
A: I didn't know that.
Q: Do you know if any on-line travel companies have a physical presence within the City of Fairview Heights?
A: I don't know that.
Q: Have you ever made an attempt to determine whether any of the on-line travel companies have a physical presence in Fairview Heights?
A: No, sir.
Q: Do you know if any of the on-line travel companies are paying any taxes to the City of Fairview Heights?
A: I don't know.
Q: Have you ever spoken with any of the owners of the eight hotels (in Fairview Heights) concerning this lawsuit at any time?
A: No, sir.
Q: Did you ever ask any of the hotel owners at any time what their position was on this lawsuit?
A: No, sir.
Q: Did you ever speak with any retailers within the City of Fairview Heights concerning their position on whether this lawsuit should have been filed?
Q: Did you ever speak with any restaurateurs within the City of Fairview Heights regarding whether this lawsuit should have been filed?
Q: Do you know if anyone from the Tourism Bureau or the (Fairview Heights) Chamber of Commerce ever attempted to comment on the resolution that resulted in this litigation?
A: Not to my knowledge.
Q: And, to your knowledge, they were never contacted concerning that resolution?
Q: Mr. Mayor, I want to talk to you a little bit more about the resolution that resulted in the filing of this lawsuit. Okay. What committee put together the resolution that was ultimately approved authorizing the filing of this lawsuit?
A: I don't recall exactly which one it was.
Q: Do you recall that -- could it have been one or two committees as opposed to others? Do you have any sense of which one it may have been?
A: I would think it would have been either Finance or Planning.
Q: What is the purpose of the Finance Committee?
A: I'll let my attorney answer that.
A: Do you know what the purpose of the Finance Committee is?
Mr. Paulson: You can answer in general if you know about what they do. Say what you know.
A: Okay. The finance committee makes recommendations to the Council to see about funding or getting funds.
Q: Anything else?
A: Well, that's about it in a nutshell.
Q: Do you understand that this lawsuit relates to hotel/motel taxes?
A: Again, my attorney is handling that. He's been our attorney for about 35 years.
Q: I understand. So it's true that you do not know whether the lawsuit concerns hotel/motel taxes?
Q: Do you know when the resolution was passed concerning the initiation of this lawsuit?
A: No, I don't.
Q: Do you know if -- when was the first time that you saw the resolution relating to the initiation of this lawsuit?
A: I don't want to answer that.
Q: Okay. Is that because you don't remember the first time you saw it?
A: I don't remember. No, sir.
Q: Was the first time that you saw it prior to the time that it was brought before the City Council?
A: I saw it when it was brought to the City Council.
Q: Okay. Was that the first time that you saw it?
A: Yes, sir.
Q: And did you read it at that time?
A: Our attorney advised us of it.
Q: So your attorney at the City Council meeting when this resolution was voted on, advised you of what was in the resolution?
A: More or less, yes.
Q: But you, yourself, did not read the resolution?
Q: Had you ever previously had an opportunity to -- strike that. Did you ever prior to that City Council meeting read the resolution?
Q: Do you know who drafted the resolution?
A: No, sir. I don't at this time.
Q: Do you know whether there was a reading of this resolution at the City Council meeting?
A: No, I don't recall.
Q: Can you tell me what the City of Fairview Heights' fiduciary responsibilities are to the class members in this lawsuit?
Mr. Paulson: Objection. He testified earlier he doesn't know what the term "fiduciary" means.
Q: Do you know who the class members in this case are?
Q: Do you know why the Plaintiff made that representation on behalf of the City of Fairview Heights in their complaint that the City of Fairview Heights is aware of its fiduciary responsibility to class members?
Mr. Paulson: I'll object to the form of the question. It calls for legal conclusion and also invades the attorney client privilege. Go ahead and answer if you can.
A: I don't know.
Q: Do you know why so many law firms are representing and have represented the City of Fairview Heights in this case?
Mr. Paulson: I'll object. That calls for attorney client privilege as to what our strategy is and why we chose or have more than one law firm representing the City of Fairview Heights.
Q: All right. Have you ever made any attempt to determine what law firms were representing the city in this case?
A: I refuse to answer that.
Mr. Paulson: Again, Mayor, if you mean you don't know.
A: I don't know.
Mr. Paulson: Don't say "I refuse to answer it" until I tell you not to.
Q: Do you know if the Becker law firm is being paid on dollars times hours basis for their representation of the city in this lawsuit?
A: To the best of my knowledge, we're not paying their firm anything.
Q: What I want to be certain of is -- let me ask it this way. If the City of Fairview Heights was to prevail in this case, would it have to give any portion of the judgment to the Becker firm?
A: That I don't know.
Q: Did you ever ask that question?
A: No, sir.
Q: Do you know how much -- do you know anything about what financial arrangement the City of Fairview Heights has with the Lakin Law Firm concerning the Lakin firm's represenation of the City of Fairview Heights in this case?
Q: Do you know what financial arrangement the City of Fairview Heights has with the Freed & Weiss law firm?
Q: Do you know what financial arrangement -- what financial arrangment the City of Fairview Heights has with Mr. Burke's firm?
A: I don't know.
Q: Who in the City of Fairview Heights knows that information?
A: Probably my City Attorney.
Q: And your City Attorney works for an outside law firm?
Q: Is there anyone else within the City of Fairview Heights other than your city Attorney that knows that information?
A: I don't know.
Q: So if I was to -- if I wanted to find out the information about the financial arrangement, from your perspective, Mr. Mayor, I would have to ask those questions of the City Attorney?
Q: And that's Mr. Paulson?
Q: Do you know how much money is at issue in this lawsuit that the City of Fairview Heights has filed against the on-line travel companies?
A: I have no knowledge of it.
Q: Do you know if the on-line travel companies were ever asked-strike that. Prior to the time that the City of Fairview Heights filed this lawsuit, do you know if anyone from the City of Fairview Heights ever asked the on-line travel companies to pay hotel/motel taxes?
A: I don't know. I have no knowledge of it.
Q: What would be the cost in your estimation of reaching out to the on-line travel companies to ask them to pay hotel/motel taxes?
A: What would be the cost of it?
Q: Sure. How much would it cost the City to do that?
A: I guess it would just be a matter of a phone call.
Q: Did you ever consider the need to speak with any other mayors or other cities' representatives concerning this lawsuit?
A: No. I kind of leave that in the hands of our attorney.
Q: Did you ever consider the need to find out about whether there were any other lawsuits like this one that had been filed by any cities or counties?
Q: Is it your intent to determine after this deposition how much is being paid or how much will be paid to the attorneys in this lawsuit?
A: I'm only interested in one attorney firm and that's Mr. Paulson.
Q: Why would that be?
A: That's our City Attorney.
Q: I understand. But you agree with me that if other law firms are working on the City's behalf who either are being or will be paid tax dollars, that's something that you should know?
A: I'm sure at the proper time I will be told that.
Q: What is the proper time?
A: I don't know when the proper time is, but I would be notified if there was anything that we had to pay I would be notified of that.
Q: And would you be notified after the fact to the extent that it would be after the amount was due?
A: Not necessarily after, but they would probably keep me a running record of what was coming up.
Q: All right. Well, right now you're not aware of any such running record?
A: No, sir.
Q: And right now you're not aware of any obligation – of what obligation, if any, the City of Fairview Height has to pay its tax dollars to any of the various different law firms that are representing the City of Fairview Heights; correct?
A: That's my knowledge.
Editor's note: The interview concludes with questions regarding the amount of time city employees might have to spend in relation to the lawsuit. At the very end there is a discussion among lawyers about keeping the deposition out of the hands of the media prior to the April 17, 2007 election.
Mr. Paulson: Are you refusing to agree to a protective order that we can agree to without getting the Court's involvement for seven days, or some short period of time, so that this tape will not – or transcript – will not be released to third parties other than those parites working directly for or with this litigation? And you know my concern, I don't want it released to the media.
Mr. Chronis: Could you articulate what you (sic) concern is so I can respond to the question you asked me?
Mr. Paulson: He's running for election. Election day is April 17th. I don't care whether this is Mayor Mitchell or Vic Canty, his opponent. If I take this tape and give it to the right person they can take sound bytes out of it and do one hell of a commercial slamming the Mayor. I don't want that done. I have a responsibility to the Mayor that that doesn't happen. And all I'm asking is that if you don't want to go get an official protective order, I don't want to call the Judge and try to get an emergency hearing this afternoon if we don't have to. Can we agree to a short period of time like – and I think, Rich (Burke), not that you won't do it, but that at least you will give me enough time to do proper notice of a hearing on a protective order, so that the stuff is not released to some bad guy who uses it for the wrong purpose.
Mr. Chronis: Okay, I don't really know what that means to be releasing it to a bad guy for –
Mr. Burke: We already know what the tenor-
Mr. Paulson: I don't want it released to the media or any other person for this to be used for political purposes. You understand what I'm asking. You say you don't, but you could.
Mr. Chronis: I don't understand what your (sic) saying, but let me respond this way. The Mayor's deposition has been set for an extended period of time. The first time that I heard anything about the request that you're making now was literally moments before we began this deposition. What I told you off the record is the same thing that I'm going to tell you on the record, which is I have heard your request. And I think I'm entitled to, and I will take, the opportunity to consider that request. Thank you.