Omaha’s firefighters union wanted Mayor Jean Stothert charged with felony witness tampering over comments she made to a character reference who went to bat for an embattled fire union president.
The character witness the fire union says Stothert tried to tamper with: Rep. Don Bacon.
Under state law, a person tampers with a witness if they attempt to induce a witness to “testify falsely or withhold any testimony, information, document or thing.”
Michael Dowd, an attorney for the Omaha fire union, said it was tampering for Stothert to urge Bacon to pull his letter of support for the union president, Steve LeClair, who had been fired by the city after a bizarre off-duty incident with a woman.
Eventually, Douglas County Attorney Don Kleine declined to file charges against the mayor. Stothert said last week that the issues being raised weren’t new.
Bacon wasn’t the only one targeted over statements in support of LeClair, Dowd said.
Three current or former Nebraska state senators “testified (to) what they feel was inappropriate pressure placed upon them to alter their testimony in connection with these proceedings,” according to Dowd.
Attorneys for the mayor and the city, hired on a contract basis from Omaha’s Baird Holm law firm, either called or sent letters warning that they were going to subpoena various character witnesses — including State Sens. Steve Lathrop and Justin Wayne and former State Sen. and U.S. Rep. Brad Ashford — if they continued their support of LeClair.
“Given the fact that you have backed Mr. LeClair against the City of Omaha despite the behavior that resulted in his discharge, we have decided to subpoena you to testify under oath about your relationship with Mr. LeClair and ongoing support for him,” attorney George Martin III wrote to Lathrop and Wayne.
Those letters, which Lathrop described as an “attempt to intimidate,” didn’t work. All three men, who are also attorneys, went forward with their support of LeClair.
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Bacon told others that he was going to do what was right. The Republican congressman sent a letter of support for LeClair.
“It’s painful because the mayor and Steve are both my friends and I’m sure the partisans will twist things, but honesty is always (the) best policy,” Bacon said, according to a document submitted to the arbitrator.
LeClair, who remains the union president, has appealed his termination. Dowd is representing him before the arbitrator — an administrative judge who will decide whether the termination was justified. A decision is expected soon.
After questioning Stothert during LeClair’s arbitration hearing in August, Dowd took the transcript, a text message and two exhibits to Kleine for review.
Kleine, a Democrat in his 13th year as Douglas County attorney, 33rd year as a prosecutor and 42nd year of practicing law, reviewed the documents and declined to charge Stothert, a Republican. Before he made a decision, Kleine said, he had a veteran prosecutor in his office also review the transcript. That prosecutor agreed that there wasn’t enough to charge Stothert.
One important factor, Kleine said: Bacon was not deterred from sending the letter of support for LeClair. Another: At the arbitration hearing, Stothert said she was simply informing Bacon that he might be subpoenaed to testify if he sent a letter on LeClair’s behalf.
Kleine said Stothert would have been better off not approaching Bacon about his support for LeClair. But her actions didn’t add up to felony tampering.
“I don’t see evidence that rises to the level of tampering,” Kleine said. “There has to be criminal intent. I just didn’t see this rising to the level that her intent was to impact the outcome of this investigation or hearing.
“It’s just kind of informing (Bacon), ‘Hey, you’re going to have to testify if you send this letter.’ ”
The fire union argued that it was much more. The union alleges that Stothert’s behavior was the result of a festering grudge she has held against LeClair for 10 years — an accusation the mayor denies.
Dowd suggested that the mayor and the city’s contract attorneys combined to interfere with witness testimony and, thus, influence the outcome of LeClair’s effort to get his job back, according to transcripts of the arbitration hearing.
For her part, Stothert issued a statement Friday that said: “The issues being raised today are not new. They were raised by Mr. LeClair’s legal counsel during the arbitration nearly two months ago. We are confident that the arbitrator will appropriately address them.”
Stothert went on to defend the attorneys’ efforts to subpoena Bacon, Lathrop, Ashford and Wayne.
“That strategy was the only means to ensure that the arbitrator would learn what Mr. LeClair’s attorneys did not want her to know: that those elected officials had an extremely limited understanding of Mr. LeClair’s discharge when they wrote their letters of support and no informed opinions about whether he should get to keep his job,” Stothert said.
The World-Herald and other news outlets reported extensively about LeClair’s behavior in a November 2018 incident in which LeClair struck a black woman at a bar and said “white power” after she resisted his advances. The four elected officials indicated that they had read the news reports but that they wrote their letters because they thought such behavior was an aberration compared with their dealings with LeClair.
Omaha Fire Chief Dan Olsen, a Stothert appointee, fired LeClair after the bar incident.
In June, LeClair was sentenced to six months of probation after pleading no contest to misdemeanor assault and disorderly conduct.
In August, he went to arbitration to try to get his job back. The fire union argues that LeClair did not deserve to be fired, especially after his years of service, including his involvement in public safety legislation and in advancing diversity in the Fire Department.
According to a transcript of the arbitration hearing obtained by The World-Herald:
Dowd spent considerable time questioning Stothert in August, suggesting that the mayor was thrilled to have the opportunity to try to fire LeClair after a contentious relationship.
Stothert and LeClair have had their share of turbulence over the past decade, going back to Stothert’s first days as a city councilwoman.
After one spat in 2009, Stothert texted LeClair: “It will be a long 4 years if your goal is to turn OFD against me.” At the time, Stothert said she wrote that because, after questioning whether the department was using city funds to train in Belize (it wasn’t), she had received “a stack of some of the most disrespectful, threatening emails” from firefighters.
During that August hearing, Dowd suggested that Stothert had spread “false rumors” that LeClair had threatened her in 2009. “Stothert alleged she had heard a secondhand report ... that I made statements to the effect that I was going to ‘pull the trigger’ on her ‘like I did in Iraq,’ ” LeClair, a U.S. Army reservist during the Persian Gulf War and the Iraq War, said in 2010.
Later, LeClair said, Stothert “alleged that I stated I would ‘do to her what (I) did in Afghanistan.’ I have never been to Afghanistan.”
After detailing their rocky relationship, Dowd focused on whether it was fair to fire LeClair over an off-duty incident when another Fire Department administrator received a two-day suspension for racially charged behavior.
Dowd pointed out that a Battalion Chief Joe Salcedo received the suspension after he shared Facebook posts comparing President Barack Obama and the Black Lives Matter movement to terrorist organizations. Salcedo was on duty at the time he shared the posts.
“And the only distinction between he and Steve LeClair, at least in terms of their employment, is that he is management and Steve is a labor leader,” Dowd said at the hearing.
He then turned to Stothert’s exchanges with Bacon. The mayor said that she and Bacon are friends and that Bacon had gone around Omaha with her on National Night Out in early August. The next night, at Bacon’s request, she went with him and his wife to a town hall the congressman held in Waterloo. LeClair’s arbitration hearing was set for the following week.
On Aug. 9, Stothert and Bacon spoke by phone.
During questioning, Dowd told the mayor that Bacon “has described the contact as getting heat regarding the letter that he submitted in support of Steve LeClair.”
Stothert: “I would not say that that’s accurate.”
Dowd: “How would you characterize it?”
Stothert: “I was trying to — well, what I did is, tried to educate him because what he told me is that he submitted a character reference letter because Steve LeClair called him and asked him to do so. He had no idea ... where it was going to be used or how it was going to be used.”
Dowd: “So your conversation with seated congressman Don Bacon was that you were educating him, you weren’t putting heat on him?”
Stothert: “No I wasn’t putting heat on him because I told him, I said, ‘This is a termination arbitration.’ And he said, ‘I wasn’t aware of that.’ He said Steve just asked him to write a letter of — a character reference letter for him.”
Dowd showed the mayor a text message that Bacon sent in which he said “the mayor wants me to pull my letter but I won’t.”
Stothert: “That’s not accurate.”
Dowd: “You disagree with what Don Bacon has written in that regard?”
Stothert: “I do ... he said, ‘I’m not going to even be in town, I’m going to be on vacation (during the arbitration hearing) ... And I said to him, ‘I’m not sure you’ll have a choice.’ And he asked the question, he said, ‘Well, I don’t — I don’t know what to do, I’m not going to be there.’ And I said I think the only thing you could do would be to withdraw your letter to avoid the testimony but I didn’t tell him to.”
Dowd: “You just suggested that he do that?”
Stothert: “No I just told him that that would be a way that he would not have to testify because we are — I knew our lawyers were going to subpoena him and if he didn’t have a character reference letter, they weren’t going to subpoena him but I didn’t tell him to pull it at all.”
Stothert wasn’t the only one accused of pressuring LeClair’s supporters.
George Martin III, a Baird Holm attorney hired to represent the mayor, sent Lathrop a subpoena and a letter. The letter characterizes the assault at the bar, Tiger Tom’s. It describes LeClair’s “boorish advances” to a “female, African-American patron.” It goes on to say that after being rebuffed, LeClair struck the woman in the back with enough force to “cause her to fall of her barstool and drop her cell phone.” Martin then writes that LeClair said “White Power! at least once.”
The next line says: “Given the fact that you have backed Mr. LeClair against the City of Omaha despite the behavior that resulted in his discharge, we have subpoenaed you to testify under oath about your relationship with Mr. LeClair and your ongoing support of him.”
Lathrop, a Democrat and personal injury attorney who once edged out Stothert for a state legislative seat, said he knows many attorneys he respects at Baird Holm.
“I’ve never seen anything like (the letter) in my 40 years of practicing law,” he said.
The subpoena from the city was unnecessary, Lathrop said, because he was already scheduled to testify on LeClair’s behalf.
“The subpoena became a vehicle to send the letter,” said Lathrop, chairman of the Legislature’s Judiciary Committee. “And the letter was an attempt to intimidate ... as if I’ve never seen a subpoena before.
“It didn’t work. In fact, it turned into a pretty good fizzle.”
Wayne, an attorney since 2005, said he had just planned to write a letter about LeClair’s involvement in his youth mentoring program. Then he got the same letter from Martin warning that he would receive a subpoena “given the fact that you have backed Mr. LeClair against the City of Omaha.”
“I’ve never seen a letter like that before in my life,” Wayne said. “It was extraordinary considering I wasn’t a material witness — I wasn’t there to testify to what happened that night.”
Ashford, another longtime attorney, said lawyer Scott P. Moore of Baird Holm called him twice to suggest that he withdraw his letter of support for LeClair. In one call, Moore asked Ashford if he wanted to see the video from Tiger Tom’s.
Moore also asked him if he really wanted to support LeClair, suggesting that it could harm wife Ann Ferlic Ashford’s run for Congress, Ashford said.
“I thought, ‘This can’t be happening,’ ” Ashford said. “Has the practice of law really gotten to this point in Omaha? I thought the whole thing was inappropriate.”
Martin and Moore did not return phone calls seeking comment.
At the hearing, Martin tried to play the surveillance video of LeClair’s actions so that Ashford could watch it. Dowd objected. The arbitrator, Peggy McNeive of Kansas City, refused the city’s request to play the video.
McNeive noted that Ashford had no knowledge of the Tiger Tom’s incident and was there to simply testify to his general impressions of LeClair, Ashford recalled. Ashford said LeClair had been nothing but professional when he advocated at the Legislature — and had gone to great lengths to increase diversity in the ranks of the Fire Department.
Lathrop said another Baird Holm attorney called him and asked if Martin could discuss his plans to testify. Lathrop declined to take Martin’s call.
While the arbitration hearing was still going on, an attorney for the U.S. House of Representatives sent a letter indicating that Bacon would not testify.
Bacon himself sent a text that said: “The House lawyers told me my letter is good and advised I stand by (my) letter and not comply with subpoena. A House member doesn’t have to comply with an Admin subpoena.
“The mayor wants me to pull my letter but I won’t.”