This isn't a run-of-the-mill municipal pissing match. The way this mayor's dealing with dissent is stirring up images of mining and timber companies bullying tree-huggers:
To get critics to shut up, Annette Mandel -- the top elected official in Creve Coeur -- sued them.
In May, Mandel and an ally, Councilwoman Judy Pass, filed libel and defamation lawsuits against six city residents, including a City Council member.
The brain behind the two lawsuits: Alan Mandel, the mayor's husband and a high-rolling personal-injury attorney.
The result of months of quibbling over seemingly insignificant issues, the Creve Coeur lawsuits mirror a strategy used by businesses in recent years to muzzle critics.
But when public servants act like cattle ranchers going after Oprah Winfrey, folks take notice. In local government and political circles, the Creve Coeur lawsuits are seen as potentially precedent-setting.
Among free-speech advocates, they're seen as chilling.
For the Mandels, the fight's personal -- and woe to anyone who stands in their way.
· They've sought copies of news reporters' e-mails and correspondence.
· They've tried to subpoena one defendant's entire private-sector personnel file -- a maneuver that brought an allegation of professional misconduct against Alan Mandel.
· They've tried to gather incriminating evidence on individuals who haven't been named defendants. Shortly after the lawsuits were filed, says Creve Coeur Councilwoman Pati Trout, Alan Mandel showed up at a council meeting and kept his video camera trained on her. The Mandels see Trout as a source of discord in city government; Trout calls the episode an effort to intimidate her.
· When the American Civil Liberties Union learned of the lawsuits, the organization filed a friend-of-the-court brief describing the cases as efforts to stifle free speech and dissent. Alan Mandel responded by deriding the ACLU and asking a judge to fine and punish the organization.
Mandel's not the kind of lawyer who retreats -- especially not when he's battling people he describes as "miscreants," "loose cannons," "hateful" and "halfwits."
But the more the Mandels and Pass have pressed, the more defiant they've made their critics.
Bob O'Connor, a defendant, describes the Mandel approach: "'To hell with the rules, to hell with what the requirements are -- let's just do it this way.' The rules apply to everybody but them."
Annette Mandel, once a rising star in the local Democratic Party, is emerging as the poster child for proposed state legislation to bar lawsuits against citizens who commit the crime of criticizing the government.
But that's still a long way off.
For now, free speech in Creve Coeur comes with a complimentary court date.
Before the lawsuits, there was a question.
Creve Coeur Councilwoman Laura Bryant wanted to know why one member of an important planning committee was deemed to have a conflict of interest but another wasn't. The issue was sensitive: The committee, formed in early 2000, was charged with putting together a major land-use plan; members of the committee had a say in the city's future development.
One of Mayor Mandel's appointees to the committee was Judy Pass, whose husband, Jeff, was a lawyer and partner in the Stolar Partnership, a law firm that was a legal consultant to the committee.
In October 2001, Bryant sent an e-mail to two city officials asking why Pass could serve on the committee when the city attorney had raised conflict-of-interest questions about Gene Rovak, the city's planning-and-zoning commissioner. Rovak is employed by Horner & Shifrin, an engineering firm that was also advising the committee.
Creve Coeur's ethics code bars elected and appointed officials from having an "interest" in any contract with the city. One of the code's definitions of a contract interest is the "receipt by an individual or his spouse of a salary [...] of six thousand dollars or more per year from any [...] partnership."
Because Pass' husband was paid more than $6,000 by the Stolar Partnership and the law firm was paid for advising the committee, Bryant and another committee member, Jeanne Rhoades, worried that Pass might be violating the code and that the ethics rules weren't being consistently applied.
Bryant and Rhoades weren't the only ones raising the issue.
In December 2001, Creve Coeur resident Terry Johnston presented the City Council with a petition asking the city's ethics commission to review "multiple inconsistent conflict-of-interest decisions." In March of this year, Rhoades read a letter at a City Council meeting demanding a written response to the petition Johnston had given the council. Mayor Mandel responded by asking Rhoades whether she was aware "that recently there was a case in Maryland Heights where an individual was held liable for slanderous and libel actions against city officials."
Later that month, Bob O'Connor, a former president of the Creve Coeur/Olivette Chamber of Commerce, sent the mayor a letter requesting an investigation into Pass' alleged conflict of interest. When the mayor refused, O'Connor showed up at a council meeting to request an investigation of the mayor, accusing Mandel of failing to do her duty. And the Chamber added fuel to the fire when its executive vice president, Vi Smith, published excerpts of O'Connor's and Rhoades' letters in a citywide newsletter.
Pass fought back -- and she had some arguments on her side. Back in 1991, a similar question of conflict had come up when she served on a community-center committee at the same time her husband's law firm represented the city in a boundary dispute with St. Louis County. The city's ethics commission, at the time, absolved Pass of any conflict -- and Pass argued that the same advisory opinion applied this time around.
Pass also noted that she'd stepped down from a consultant-selection committee in late 1999, when she discovered that the Stolar Partnership was going to be part of a team trying to get the business. Once the Stolar Partnership was selected and Mayor Mandel asked her to serve on the new committee, Pass went to the city attorney and asked whether it would be a conflict. He said no. She also looked to a different section of the Creve Coeur code that made it a conflict of interest if her husband owned 10 percent or more of the firm. He didn't, so she believed she wasn't violating the code.
And after the state ethics commission was asked whether Pass had violated any state conflict-of-interest laws, it "voted to take no further action on this complaint and to close our file."
The mayor stuck with her appointee. The city's ethics commission dodged the specific question of whether Pass had violated the code. And the City Council voted 5-1, with two abstentions, to exonerate Pass. Bryant voted against the motion; Pass and another councilman abstained.
But the dissidents weren't finished.
On April 22, O'Connor, the former Chamber president, filed a writ of mandamus against the city, asking a St. Louis County Circuit Court to order the City Council to remove Pass from office. The writ was dismissed in September.
But O'Connor's letter accusing the mayor of violating her official duties, and his suit, pushed Pass and Mayor Mandel over the edge.
On May 2, they sued their critics. Named in the lawsuits: Councilwoman Bryant and her husband, Keith Prokop; O'Connor and Smith, the two Chamber of Commerce leaders; and Johnston and Rhoades, who had pushed for a Creve Coeur Ethics Commission investigation.
Annette Mandel fed her "letter to the citizens of Creve Coeur" into the city's fax machine. But it spit copies out in newsrooms, not living rooms. In the letter, the mayor explained her reasons for suing.
"I refuse to allow a handful of mean-spirited destructionists to impugn my character, slander and libel me, and tarnish the accomplishments of the last ten years."
The expenses of her "personal" lawsuit would be borne by the Mandel family.
On May 3, Post-Dispatch columnist Jerry Berger, a resident of Creve Coeur, reported on the lawsuit. The spin on the mayor was positive: "With public officials increasingly the legal target of every disgruntled activist with a word processor, Creve Coeur Mayor Annette Kolis Mandel has struck a blow likely to be followed in every government building from St. Louis City Hall to the state Capitol."
The "Berger Bit" was news to Jeanne Rhoades. "I read the Berger column and saw that I was getting sued," she says. "I got served a day or two later."
Some weren't amused that the city's fax machine had been used as a conduit to tip Berger and other media outlets. The mayor agreed to reimburse the city $28 for the use of the fax.
There was another embarrassing gaffe.
Because Laura Bryant says she was asking questions in her role as councilwoman, the city's insurance policy was on the hook for her legal defense. The remaining defendants had their costs covered by homeowners' insurance.
Annette Mandel's core allegation is that by claiming that she breached her official duties and violated the city charter, Bob O'Connor had maliciously defamed her. Other defendants, Mandel claims, conspired with O'Connor to smear her name.
Several defendants say they were just concerned about the same city issue -- and they deny the conspiracy claim. As for Keith Prokop, nobody's sure what he's done to be sued other than remain married to Bryant.
O'Connor defended the case, saying he was merely expressing an opinion, an opinion protected by the First Amendment.
But Mayor Mandel disagrees.
In an interview, the 49-year-old mayor says, "Anybody can question anything, but when you've been told that your interpretation is not correct time and time again, I think that's the point at which those statements are abusive."
And just because she's an elected official doesn't mean she's got put up with being called nasty names, she says: "I think there are other public officials throughout the area that are looking at this to see what the outcome is because it is not right that people have carte blanche to abuse a public official that they don't like."
The mayor also dismisses the notion that the defendants are simply asking for an investigation into the application of conflict-of-interest charges.
"I think it is a witch hunt. We had a councilperson say that this is McCarthyism. This is just abuse," Mandel says.
The comparison to McCarthyism is something Alan Mandel echoes. Mandel, 50, serves on the executive committee of the Missouri Association of Trial Attorneys and is co-counsel for the Urban League. He intimates that he's got an inside track in Missouri's Democratic Party. And even though Mandel's wife recently lost her bid for a County Council seat, Joyce Aboussie -- U.S. Representative Dick Gephardt's trusted right-hand woman -- was on board for that campaign.
Alan Mandel rejects the idea that the lawsuit is merely an attempt to silence his wife's critics.
"I don't think you'll find a bigger defender of the First Amendment than I am, OK?" he says in an interview. "This is not about being able to tolerate political opposition; this is about acting like idiots."
But shortly after the case was filed and eight attorneys lined up for the defendants, Alan Mandel offered to drop the cases in exchange for an apology. The defendants refused.
Not much later, Judge David Vincent granted O'Connor's motion for a summary judgment.
On August 8, he ruled that O'Connor merely was exercising his right to free speech and offering the opinions of a public official. "The language only addresses the Mayor's official duties, and the Mayor is in no way accused of any criminal conduct in this letter," Vincent wrote. "There is also no dispute about the fact that the letter written by Defendant O'Connor contains phrases such as 'in view of' and 'it would appear,' which are clearly statements of opinion."
The judge also ordered Annette Mandel to pay the costs in the case.
But Alan Mandel says Vincent shouldn't have entered the ruling so quickly -- the judge had been given until August 10 to reply.
"He made a mistake -- that's not a mistake I'm taking up on appeal," Mandel says. "He was kind of apologetic about it."
Mandel is appealing the judge's ruling.
"I have a lot of respect -- he's a good, young judge," Mandel says. But "those are issues, and I think Judge Vincent agrees, that are better decided by an appellate-court judge."
At one time, Alan Mandel was paired up with the American Civil Liberties Union of Eastern Missouri. It was in 2001, and the ACLU had filed a voting-rights case. Mandel helped out, and the ACLU was appreciative.
But the association didn't end happily ever after, especially when the ACLU filed an amicus brief that wasn't friendly to the Mandels.
In a letter to the organization's legal director, Denise Lieberman, Alan Mandel wrote: "The recent decision of your organization to get involved in my wife's libel and slander action without discussion with me or attempting to ascertain all the facts shows a lack of institutional character that cannot be forgiven or forgotten.
"Please be assured that I will use my right of free speech to let my friends in the community know about the mismanagement and lack of judgment now present in a once great organization."
According to ACLU executive director Matt LeMieux, Mandel did indeed exercise his free-speech rights, and the organization received two phone calls from people asking them to step out of the cases. LeMieux won't identify who made the calls on Mandel's behalf.
"When we bring a case, regardless of who we are defending, it is a case brought on principle, and the principle is the First Amendment," LeMieux says.
In its brief, the ACLU called the cases "baseless" strategic-lawsuits-against-public-participation -- SLAPP -- cases, whose sole aim is "chilling public participation in, and criticism of, their government."
According to the brief, the defendants had a constitutional right to "petition the government for redress of grievances. This lawsuit effectively silences these defendants, and sends a clear message to other citizens in their community that it is ill-advised to raise concerns about conflict of interest standards to elected officials."
Alan Mandel says of the ACLU filing: "That brief is stupid."
Annette Mandel's reaction: "The ACLU advocates for unpopular causes, the Ku Klux Klan and the Nazis."
Says Judy Pass: "Up until now, I've been very supportive of the ACLU."
Though the ACLU filed briefs in both cases, Mayor Mandel's lawsuit was dismissed before her husband could respond. But he got his chance in the Pass case.
"That said filing by the ACLU was intended to harass and intimidate the plaintiff, mislead this Court as to the issues in this case and give the ACLU cause to file a misleading press release which serves its own interests to harass and ridicule the plaintiff," Alan Mandel wrote. He asked the judge to sanction the ACLU.
It's the first time since LeMieux's been with the ACLU in St. Louis that he can recall the organization's being threatened "for daring to participate in a case." But that, he says, only lends credibility to the ACLU's view of the lawsuits: "I think that noting that we issued a press release and that that was somehow harassing fits within the pattern of what we've seen in this case, which is, anyone who dissents will be dealt with in court."
LeMieux ticks off several characteristics of SLAPP suits: They're filed to financially cripple defendants, who fork out dough for lawyers, and they're used to embarrass and burden defendants in the discovery process. They're a warning to everyone else: Wade into the fracas and you'll get filleted -- and that includes journalists.
"I had a discussion with one of the reporters -- I can't recall if it was from the Post-Dispatch's West Post or the Suburban Journals, but it was a new reporter and she expressed some hesitation in doing this story because other reporters had been called as witnesses in various litigation and she was concerned about being dragged into a lawsuit," LeMieux says.
"That is the silliest thing I've heard," Pass says. "Journalists come to our meetings all the time."
Alan Mandel thinks the other side is the real problem: "The Post, from what I understand, the reporters are sick of them. They're not sick of us, but they're sick of them." He adds, "I'll be curious to know how frequent the communications are that Ms. Bryant e-mails you between now and the time you write this story."
He's already trying to find out what the Suburban Journals and its reporter Jennifer Pope had to say to Bryant, the councilwoman. In a discovery request to Bryant, he asked for "copies of all correspondence including but not limited to e-mail communications, letters and memos from January 1, 2001, to present date, sent or received by Laura Bryant to or from the Suburban Journals or Jennifer Pope."
Alan Mandel explains: "Ms. Bryant cc's everything to the Suburban Journals. The reporter for the Suburban Journals had her picture on her computer monitor. I believe there is a personal relationship there."
Pope won't comment.
Alan Mandel's also interested in how Bryant got her job, so he subpoenaed her entire personnel file from her private employer. He admits that Bryant's day job "has nothing to do with" the case. But while he was looking for a motive, he says, it was brought to his attention that Bryant "had a considerable period of unemployment." And he believes that a high-ranking official with her employer -- a resident of Creve Coeur who had sued the city before -- had a hand in her getting the job.
"The reason for trying to get those records was to see whether the individual had a hand in the application process. I could care less about her work performance, whether she's on time, what she makes," Mandel says.
But the actual language of the subpoena requests "the entire personnel file of Laura Bryant, including but not limited to references, referrals and applications."
Moreover, the personnel file was supposed to be brought to a deposition on October 1 that Bryant's attorney didn't know anything about. Alan Mandel signed and sent a letter to the employer's litigation coordinator saying it would be OK to skip the deposition and just send a certified copy of the personnel file. Bryant's attorney didn't get a copy of that letter, and neither the subpoena nor a notice of deposition was filed with the court.
Bryant's attorney, James Cantalin, found out about the request for her records from her employer. He asked the court to quash the subpoena, alleging that the "plaintiff's attorney improperly and in direct violation" of a professional rule of conduct notified the coordinator that she could send the documents and skip the deposition.
Cantalin alleged: "That, it is professional misconduct for requesting attorney to review or otherwise use privileged [documents] that a provider mails contrary to a subpoena requiring production of documents at deposition."
Alan Mandel says he didn't violate the ethical rules. He notes that for twelve years he served on the Missouri Bar Association's disciplinary committee, and he's got a paperweight to prove it.
"It should not have been phrased that way," Mandel says, referring to Cantalin's motion. "I received an apology."
Cantalin denies apologizing.
Alan Mandel also places the blame for the way the subpoena was handled on a colleague:
"One of the young associates here, his wife had a baby and the baby didn't do well initially, and he did that, OK? It was not the way I would have done it, OK? And, frankly, had the records arrived here under those circumstances, I wouldn't have opened them."
The judge invalidated the subpoena and soon thereafter sent the case to a mediator. But all of the defendants have opted out.
"How the hell am I supposed to mediate my constitutional rights?" O'Connor says.
Alan Mandel sits in his spacious downtown office near the Civil Courts Building. Resting on a window ledge behind his desk and chair is a statue of a rearing king cobra, hood flared, ready to strike. A secretary walks in and hands the lawyer a settlement check to endorse.
He says people in Creve Coeur support his wife and Judy Pass, not the dissidents.
"There are probably only about half a dozen people in the whole city involved in this. They have no constituents," he says.
Asked what he thinks is at the root of the criticism leveled against Pass, Mandel says, "We've been looking into motives. How much of this is caused by a power vacuum, I don't know."
He is especially puzzled by Bryant's outspokenness, noting that she attended a Bette Midler concert with his wife and Pass just a few years ago. He pulls out a copy of an e-mail from Bryant to Pass saying it was a shame that Pass had to resign from the plan-selection committee.
"Either her memory is very selective, OK, or she's crazy -- which is, by the way, a possibility," Mandel says. "Anybody who sends e-mails at four or five in the morning regularly is a problem."
He also thinks Pati Trout is part of the problem. The councilwoman was just elected in April. Since then, she's criticized the lawsuits.
"She may end up in the lawsuit," he says. "Pati is a tool. She's a loose cannon. She's just ignorant and mean and very, very hateful of Annette and myself. I don't mind saying this -- Annette, she's educated, she's attractive, she's affluent -- she's everything that Pati's not."
When the mayor ponders the question of motive during an interview in her tastefully arranged home, one that's about to undergo a facelift with the help of an interior decorator, she also mentions Pati Trout.
"Ten years ago, the city was in exactly the same position, and the one common factor is Mrs. Trout," the mayor says, referring to the fact that Trout served on the City Council in the early 1990s.
Later, when asked about the mayor's comment, Trout says, "I'm not the common denominator. This has been going on for years and has absolutely nothing to do with me." And Trout dismisses Alan Mandel's sharp criticism as "typical [of] a man who has no self-esteem and who lives on harassment, intimidation and bullying."
Annette Mandel says the strife could also be caused be a "question of who controls what goes on in government.
"I think the bottom line of when all these issues began to get bad was when Mrs. Bryant was not named chairman of our planning-and-zoning commission. And from that point forward, she had tried to, in my opinion, she has tried to find flaws in the operation of our city government."
The mayor also mentions money as a motive. In her letter to the citizens, she refers to the land-use plan, which really started the whole fuss: "Some of these individuals wrote large portions of the plan, and some even have financial interests in the plan."
Jeanne Rhoades, one of the defendants, says that her financial interest in the plan is "not more than any other taxpayer or resident in the entire city." She began raising Sunshine Law questions when she noticed that data she had compiled from questionnaires hadn't shown up in the draft plan -- and things the committee had never discussed were in the plan. Around the same time, Bryant compiled a conflict-of-interest timeline detailing inconsistent statements. Then Terry Johnston started to ask questions. Rhoades says, "They were all stonewalled."
So Rhoades decided she needed to get involved: "Inconsistencies are not good for the city; they're not healthy for the process; they're not healthy for the comprehensive plan because they're going to make it vulnerable to litigation."
Bob O'Connor says that as president of the Chamber of Commerce, he'd heard some of the concerns raised about conflicts but didn't get involved because at the time he believed his overriding concern should be Chamber business. The business community and the Chamber had been the most vocal critics of the plan.
But once O'Connor's term with the Chamber ended, and he listened to the issues at an ethics-commission meeting, he decided to "step to the plate."
"I didn't like how the city and its committee/commission were treating people's inquiries," O'Connor says. "They weren't doing what they could do to alleviate concerns, and they appeared to be significant concerns."
Defendants Vi Smith, Terry Johnston and Keith Prokop declined to comment on the lawsuits, as did Bryant, who instead provided a voluminous written record containing many e-mails, letters and other papers that are already part of the case. The records suggest Bryant is indefatigable, and it's no surprise that her e-mails, correspondence and letters to the editor have annoyed recipients. Often she responds to answers in e-mails with a new volley of questions. But being annoying and critical isn't against the law.
Neither Pass nor the Mandels point to any financial ties with developers. And it is hard to draw a line of Republicans versus Democrats in Creve Coeur city politics. At the municipal level, elections are held without reference to political affiliation. There are no primaries, just general elections pitting independent against independent. The only thing the defendants have in common is that all except Smith live in the same ward.
When Mayor Mandel is asked whether the land-use plan would be invalidated if it was determined that Pass' service was a conflict of interest, she says, "I just don't even understand how that could happen."
She was probably just as perplexed when state Senator John Loudon (R-Ballwin) identified her by name as the reason the Missouri General Assembly needs to pass anti-SLAPP legislation.
The ACLU is trying to find bipartisan sponsorship for its own proposed legislation, which is already law in several other states. Under this plan, the defendant has the burden of proving that the speech was related to a public issue. If the defendant can do that, the case is dismissed quickly, before discovery proceeds, and allows him or her to recover attorney's fees and costs.
That setup, LeMieux says, would protect defendants while ensuring that the law doesn't "stifle a plaintiff's legitimate libel claim."
Despite the claims that lawsuits would take the city's government out of the controversy, the battle over Pass' conflict of interest was waged once again in Creve Coeur, only a few weeks ago, at an ethics-commission meeting.
In December 2001, Terry Johnston asked the commission to determine, once and for all, whether Judy Pass had incurred a conflict of interest. The commission refused to act on the petition, then answered a generic set of questions supplied by Laura Bryant and Jeanne Rhoades. In September, four months after filing suit, Pass filed a request for an advisory opinion from the commission about the conflict-of-interest accusations.
On October 9, the commission members convened, but without their chairman, Dr. Robert Packman. The respected retired physician had resigned two days earlier.
In a letter to Annette Mandel, Packman wrote, "[T]he Ethics Commission has become involved in an imbroglio, possibly personal, but definitely paralyzing.... [I]t seems as if the Commission is being thrust into a position of being used as a pawn in personal agendas."
Alan Mandel attended the meeting of commission-turned-pawn. So did Bob O'Connor and Pati Trout.
Mandel was asked to speak about Pass' request for an advisory opinion.
"We received a written advisory opinion as far back as 1991," Alan Mandel reminded the commission members. "Certain elements of the community are either not aware of this opinion or are purposefully ignorant."
Mandel then lauded his client's "courage" in asking for a new advisory opinion. He called on the commission "to give Ms. Pass a clean bill of health based on the past ten years because she deserves it."
Carol Schulman, the acting chairwoman, asked, "Are any of these matters concerning the litigation?"
"No," the lawyer responded. "Oh yes they are," muttered Trout.
O'Connor started to speak, but Schulman shot him a look and rebuked him: "We can't have discussion!" she snapped. "We decided this some time ago."
"But Mandel's talking," O'Connor said.
"He's the legal representative!" Schulman replied.
O'Connor sighed loudly, crossed his leg and shifted his weight in the chair. Trout tightened her arms across her chest.
"Do I hear a motion?" Schulman asked.
David Lipman, former Post-Dispatch managing editor and Packman's predecessor as commission chairman, weighed in heavily during the debate. At first, he seemed to want to dodge the question once again, but after some bickering, the consensus seemed to be to defer to the 1991 ruling.
Finally Lipman asked whether the commission members were ready to vote.
"If I may," Mandel said, "the only motion on the floor is deferring to the '91 opinion at this time."
The motion was seconded and passed unanimously.
"He just slipped them a mickey," Trout grumbled.
Then she leaned over to O'Connor and whispered that she had to leave for another city-government meeting:
"From this to sewers -- it is about the same."
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