Metro Council President David Yates removed as attorney in LMPD Explorer scandal
After multiple contentious hearing between County Attorney Michael O’Connell and Yates, Judge Judith McDonald-Burkman ruled Tuesday that Yates “cannon simply abstain from acting as a Metro Councilperson on a matter of this magnitude.”
LOUISVILLE, Ky., (WDRB) – A Jefferson Circuit Court judge has disqualified Metro Council President David Yates from serving as attorney for an alleged victim in the Louisville Metro Police Explorer program sex abuse lawsuit, ruling “his duties conflict with each other.”
After multiple contentious hearing between County Attorney Michael O’Connell and Yates, Judge Judith McDonald-Burkman sided with the prosecutor, ruling Tuesday that Yates “cannot simply abstain from acting as a Metro Councilperson on a matter of this magnitude.”
Yates had repeatedly sought to separate his role as an attorney from that of council president, while also maintaining that he was stepping up to right a wrong that has been hushed up in Louisville for years. He has recused himself from several Metro Council discussions and votes involving the police department.
Yates said he did not learn of the alleged abuse of teens in the Explorer program through his position at the council, but word of mouth in the community and discussions with alleged victims around June 2016.
But McDonald-Burkman ruled that any settlement would be paid by the city, either through insurance premiums or deductibles and Yates stands to “benefit substantially and directly from this action.”
The day after the lawsuit was filed on March 9, Yates proposed a “confidential settlement demand” with the city for $6 million.
In addition, McDonald-Burkman said the investigation into the Explorer scandal is ongoing and could “land at the Metro Council’s door,” according to the ruling.
She said there is a risk that Yates' representation of alleged victims will "materially limit his duties" to the council.
In an interview, Yates said he would not appeal the judge's ruling, saying co-counsel Tad Thomas had spent hundreds of hours and could carry the case forward.
"I want them to be able to move forward and have justice swiftly," Yates said of of the alleged victims. "Appealing and holding it up will not be in the best interest of the clients."
In a statement, O'Connell said "this was a fight I neither sought nor relished, but it was of such importance that I felt duty-bound to bring it to the court’s attention.
“... The plaintiffs and defendants deserve their day in court, one that is untainted by President Yates’ conflict of interest. Now that the issue of disqualification has been resolved, this case can proceed in an orderly manner in the pursuit of justice.”
The victim in the initial lawsuit, identified only as "N.C." claims former Officers Kenneth Betts and Brandon Wood sexually abused him while he was a teen in the department's youth Explorer program between 2011 and 2013.
In addition, police officials are accused of concealing evidence of the conduct by intimidation, destruction of evidence, deletion of information and refusal to comply with the Kentucky Open Records Act, as well as a conspiracy to cover up the wrongdoing, according to the suit.
N.C. is suing Metro government, the police department, Wood, Betts, retired Maj. Curtis Flaherty and the Boy Scouts of America.
Three other lawsuits have been filed, yet they are sealed.
O’Connell argued that Yates used his position as council president to convince a victim to come forward and sue the city.
O’Connell showed a series of Facebook messages between the alleged victim in which Yates offered his legal services and made reference to his “unique position.” O’Connell says that position referred to his role on the council.
But Yates said he was referring instead to his time as a prosecutor with the Kentucky Attorney's General's office, helping to write sex abuse legislation, prosecuting defendants in abuse cases and representing victims in civil litigation. In addition, he said, his own youth basketball coach sexually abused children.
“My unique position is the empathy and understanding that I bring, in addition to practicing law and the skill set,” he said, adding that he has talked with many police officers about these allegations.
McDonald-Burkman, however, noted that Yates' law firm website highlighted his position on the council "more than his legal experience."
"It suggests a use of his position as a Metro Councilperson and Metro Council President to influence prospective clients," McDonald-Burkman wrote. "As both an attorney and politician, Yates is cognizant of the importance of word choice, and that a significant difference exists between 'experience' and 'position.' The meanings are not interchangeable as Yates would suggest."
As a member of the Metro Council, a settlement in the case would be a conflict for Yates because he votes on the city budget, which funds lawsuit settlements, O’Connell has argued.
Asked in one hearing if he doesn't have a "fiduciary duty" to the city as president of the council, Yates responded that he does not have a duty to participate in the "cover-up of children being raped."
"My duty is not to government in general," he said. "My duty as a legislator is to do the right thing."
Yates's witnesses, including Louisville attorney Peter Ostermiller, who defends lawyers in bar disciplinary cases, did not testify Friday. Yates has also cited a letter from attorney Deborah Kent, who was retained by Yates to advise him on any possible conflict.
Kent, former general counsel for the Louisville Metro Ethics Commission, concludes that any complaint against Yates for a conflict would be “dismissed for lack of probable cause,” according to her letter.
And a Kentucky Bar Association opinion, from March, concludes Yates' representation is "permissible" but noted the "possibility of lack of understanding by the public," a fact which "deserves serious consideration."
Judge McDonald-Burkman downplayed these opinions, finding instead that Yates is bound by the Metro Government Code of Ethics and the Rules of Responsibility, prohibited from acting in his official capacity if a private or financial interest "might reasonable be expected to impair his objectivity, according to the ruling.
Wood has been indicted on seven counts of sexual abuse with one alleged victim, a juvenile, stemming from incidents in 2011 and 2012.
Betts was charged with two counts of sodomy involving two different alleged victims. The indictment alleges Betts engaged in "deviate sexual intercourse" with one of the victims through the use of "forcible compulsion" over a five-month period in 2007.
And Betts is accused of committing sodomy on July 26, 2013 with a minor "he came into contact with as a result" of his position as a police officer.
In the interview Tuesday, Yates said he didn't regret taking on the case and "exposing a ring of child sex abuse and hopefully shutting it down and hopefully sending bad people to jail."
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