Michael: Kathleen Dunbar - Protecting Precedent Against KidsI have a very interesting email. It is the response of the Democratic Party's lawyer to the threatened defamation lawsuit by Dunbar against her political critics over her handling of a voluntary per unit contribution by a developer to offset the impact on local schools. It pretty clearly lays out the history of this sad chapter in Tucson politics. I share it with you in full.
Dear Mr. Gonzales:
Just prior to 7:30 a.m. this morning your client, City Councilwoman Kathleen Dunbar, awakened retired Amphitheater school teacher Ms. Alison Newman, and threatened to have her "lawyer sue you personally."
Her threat followed Ms. Newman's refusal to "write a retraction" of the contents of a letter she and two other retired school teachers wrote to fellow educators urging that they not vote for Kathleen Dunbar because she has demonstrated that she "does not support our schools and children."
Later that morning you separately e-mailed Karin Uhlich and the Pima County Democratic Party threatening legal action against the party committee "and ALL persons and organizations" who you claim will be "subject to the same legal action which will be brought against Mr. Jaeger and the Amphi School District."
Please accept this letter from my law firm on behalf of Ms. Newman, the Democratic Party and Ms. Uhlich.
At the May 10, 2004 regular session of the mayor and council there was a remarkable exchange between Mr. Todd Jaeger, Associate Superintendent and General Counsel for the Amphi School District and your client, Council Member Kathleen Dunbar. Mr. Jaeger said his appearance at the council meeting was on behalf of the District and that they were paying him to be there. He outlined for the mayor and council the financial impact on the District of new residential construction that filled to capacity their schools and the difficulty of the district to build new schools or to bus students within the district from one school to another. Consequently, the district had sought voluntary agreements with developers to pay the district an impact fee to lessen the burden of their project.
Mr. Jaeger, on behalf of the district, had negotiated such an agreement with The Kemmerly Companies that would have resulted in the Amphi School District receiving approximately $250,000 from the developers. After the agreement had been made but before final signatures your client, Ms. Dunbar, utilizing the powers of her office, threatened to punish the company by voting against the project and soliciting the votes of other council members to stop the project.
A partial transcript of Mr. Jaeger's own words at the May 10, 2004 council meeting are quoted below.
"Ultimately on or about 4/21 we received final word after exchanging drafts of the agreement, that the developer would in fact enter into an agreement with the district providing $1200 per home which would essentially enable us to build 4 classrooms at the schools and allow us in fact to overcome the capacity deficiency. Oddly enough then you might wonder why we are here. We're here because the developer just a few days later contacted us and said after reaching an agreement they were withdrawing that agreement. They said quite candidly that they were withdrawing from the agreement because Ms. Dunbar had told them that if they entered into an agreement she would see to it that this development was voted down. I had my own conversation with Ms. Dunbar on or about 4/21 and she told me in fact she would fight us on this project. I cannot understand for the life of me why she would oppose a voluntary agreement that would benefit students at 2 Title I schools. But that is the status. We would ask that this applicant be denied at this time until the school district's serious concerns about capacity at the schools are addressed."
Mr. Jaeger's description of events were confirmed by emails of the negotiating process.
On April 21, 2004 at 1:26 p.m. Connie McFarland of the Amphi School District sent the proposed agreement to Larry Rollin, the Kemmerly Companies lawyer.
She said: "Sir, per your discussion with Todd Jaeger yesterday, I have attached a form of agreement drafted for your initial review. For your reference, I have also included an agreement (Rooney Ranch) that we have recently utilized."
Some fifteen minutes later Mr. Rollin responded that he had spoken with his client who was "on board with the $1,200 program." His e-mail reads in full:
"Thank you for the documentation. Please inform Todd that I spoke with Chris Kemmerly and he is on board with the $1,200 program. Our only internal issue is whether we will increase the house price by the amount or have the buyer pay it as one of a number of buyer costs due at closing."
Less than twenty minutes later at 1:59 p.m. the "final form of agreement" was emailed back from Amphi to the Kemmerly Companies lawyer. That email reads in full:
"Thank you. I have attached a final form of agreement (I deleted references to apartments in paragraphs 5 at Todd's instructions). If you will facilitate Mr. Kemmerly's signature on the Agreement and return an original to our office, I will place the Governing Board's ratification of our Superintendent's signature on the May 11th Board agenda. Following the ratification, I will forward a completely executed Agreement for your files."
Only two days later Kemmerly Companies backed out of the agreement. The email from Todd Jaeger to Vicki Balentine, Superintendent of the Amphi School District is a contemporaneously recorded recollection of what happened. Again, that email is quoted in full:
”I am so ticked.
“I called Larry Rollin, who had previously told me we had a deal on Kemmerly. He told me that now they're pulling back a bit because Kathleen Dunbar has told Kemmerly that if they enter into an agreement with us, she and other members of the city council will vote no on the project. She told them that this is between the City and the District and the City will "take care of" the District's concerns. She said she doesn't want to set a precedent.
“She is obviously playing games - games that ultimately and shamelessly hurt kids at Title I schools. Unbelievable. Larry said he wants me to know this information "off the record" and is worried about retribution against him and his client if Dunbar's antics are disclosed. I told him I could make no commitments, but I would do my best. I said I would certainly have to tell my clients.
“He said they now want to wait to see how the council will vote. If the majority will vote in favor of project without agreement with us, they will not go forward with agreement. I asked him why the city should care if his client decided to give us donations. He said Dunbar is upset and is threatening failure of the project. They now feel like small fish caught between two sharks."
As you will note Mr. Jaeger's appearance before the major and council occurred ten days after the Todd Jaeger email to Superintendent Balentine while the events were fresh in everyone's mind. It is telling that Ms. Dunbar did not deny his version of her conversation with him nor did she or Mr. Kemmerly who was present at the council meeting deny the reason the company decided not to give Amphi the agreed upon money.
For ease of analysis I have quoted Ms. Dunbar's response to Mr. Jaeger below.
CM Dunbar: “Mr. Mayor, With response to the comments made by the attorney for Amphi, I guess I would like to point out that this property is already zoned and it is zoned for manufactured housing. As a matter of fact it is zoned for 220 to 225 units. This is a rezoning. It has actually gone down from the 220 to a maximum of 185. So it is actually by my map 40 houses less than zoning in place right now. As for the comments as to who did what, you know the letters were sent to our office and out comments were in response to your letters. We just had a gentleman come up and talk about the 2 story versus the 1 story - I am a little bit confused on that so could we even now clarify exactly the 2 story versus the 1 story. At a maximum I mean."
As you know Ms. Dunbar has twice been voted as the Southern Arizona Homebuilders Association's (SAHBA) favorite elected official. Consequently, she has become known as the "Special Interest Council Member." Her strong opposition to impact fees at that point in time is a matter of public record. Her shocking intervention to prevent the Kemmerly Companies from giving $250,000 to the Amphi School District is consistent with her reputation on the council.
Your letter to the Pima County Democratic Party Committee made the following claim as justification for your "legal action which will be brought" against "your committee and all persons involved in this defamation . . ." You said: "I represent Ms. Kathleen Dunbar with respect to her defamation claims arising from the false and malicious allegation that Ms. Dunbar interfered with Amphi school construction."
Since truth is a defense to a defamation action I call your attention to the negotiated agreement between the Kemmerly Companies and the Amphi School District which provided $1,200 for each residential home in the project. The agreement provided in ¶ 9 that "the Education Donations received by the district pursuant to this agreement shall be used to improve, or expand, school facilities in such a manner as to mitigate the impact of enrollment, resulting from the Developer's Project." Mr. Jaeger told the mayor and council those funds, some $250,000, would "essentially enable us to build four classrooms at the schools."
As Mr. Jaeger's letter and statement made clear Ms. Dunbar told Kemmerly that she and other members on the council would vote no on the project if they entered into the agreement they made with Amphi. Ms. Dunbar's stated motive was that "she said she doesn't want to set a precedent." Regardless of her true motive it can certainly be fairly stated that she "interfered" with the Amphi and Kemmerly Companies' agreement that would have resulted in enabling them to build additional classrooms. In fact, "interfering" is a quite soft word for strong arm and bullying tactics that amounted to extortion.
Mr. Jaeger succinctly expressed his feelings when he wrote "I am so ticked." Please add my name to the list of those outraged by Ms. Dunbar's abuse of her office.
We invite Ms. Dunbar to point out the errors in the written record made at the time of the negotiations. Until then my clients will rely on that record which is informed by her known voting record on the city council. Please respond to this office if you choose.
RISNER & GRAHAM
William J. Risner