LECLAIR vs. NABITY
and OMAHAALLIANCE.COM SETTLE LAWSUIT
December 2, 2011
By now, news outlets have released information about the settlement reached in the above-captioned lawsuit. Below are various statements either entered into by the parties or released from party representatives. As usual, opponents of Dave Nabity and the OmahaAlliance.com accuse private citizens, like Dave Nabity and our organization, of having an “agenda” and being anti-union. WE DO HAVE AN AGENDA – it is to seek reform of our local government and weed out waste, inefficiency, and corruption.
That any public sector union or its supporters can complain or sue or malign that purpose IS THE WHOLE POINT and the reason we seek reform. It is undemocratic to silence objectors, especially those who speak out against any misuse or abuse of power. The Alliance stands for accountability, responsibility, transparency, and the proper use of authority in local government. Please read the following and make up your own mind. We include the deposition of the Fire Chief for the public’s edification. Once you have read it, decide for yourself if his description of how your tax dollars are accounted for in the Fire Department is what you would expect to satisfy accurate payroll records.
Release from Dave Nabity:
Memo to Omaha Alliance Members Regarding Settlement of Defamation Lawsuit
(Omaha, NE) As many of you may know, last year the President of the Firefighters Union filed a lawsuit against me and the Omaha Alliance for the Private Sector (OAPS) after I spoke out against the practices that were exposed when State Auditor Mike Foley investigated the fire department. The main issue regarded the misuse of “detached duty” service and the concerns that a select group of firefighters were not following the labor contract and not properly keeping track of their union hours. On November 29th, 2011, both parties came to an agreement to settle the lawsuit and not proceed to trial. OAPS agreed to do so for he following reasons:
- The OAPS board felt that even if we exposed all of the misdeeds that we believe are happening within the OFD, the Mayor has already shown that he is unwilling to fire anyone who is violating the labor contract or mismanaging the epartment. So, the time, energy, effort and cost would gain virtually nothing.
- Our efforts and money would be better spent on working towards influencing the City Council to make sure the labor contract that is currently being negotiated is more comparable with what other cities have offered their firefighters.
- We can also work to empower the City Council to demand strict compliance to the labor agreement, so that nobody, including the Chief, OFD employees, or union officers, can take liberties that needlessly cost the taxpayers.
- On an individual note, I and many of my peers, believe that the best course of action is to spend our time and financial resources on finding “reform- minded” candidates to run for office in 2013 to replace those who have been willing to upport these horribly expensive labor contracts and department heads who run “fast and furious” with taxpayer resources.
Much of the decision to “settle” the lawsuit was driven by our insurance company. The law explicitly allows liability insurers to settle claims or lawsuits as the insurer “deems expedient.” Thus, if the insurer can pay less to settle a claim than it would cost in attorney fees to defend the case, the insurer can settle the lawsuit. Under no circumstance was I willing to step back from my initial statement and assessment of the situation. Today, I continue to believe that the taxpayers were being taken advantage of by the officers of the fire department and the union. When LeClair’s counsel indicated a willingness to settle the lawsuit without a retraction on my part, I instructed my attorney to proceed with settlement negotiations. We had the option of terminating our insurance coverage and proceeding to trial at our own expense, but it seemed foolish to spend between $25,000 and $50,000 on a trial and possible appeal when the facts of the case were not in dispute. The depositions of both LeClair and McDonnell clearly revealed the games that we believe they were playing to get around the labor contract. Just as I had been told, LeClair worked at the Union Hall on a daily basis and worked almost exclusively on union matters. Through an absurd reading of the labor contract, McDonnell did not require LeClair to account for activities that I believe any reasonable person would understand to be union activities. No trial was needed.
On the one hand, I was looking forward to the trial because we had a great group of witnesses that I am confident would have told the truth and exposed (in my opinion) how a few individuals have so taken advantage of the city that taxpayers have lost in excess of $10,000,000 over the last three years. On the other hand, even if we prove all of this, what changes? The mayor had his opportunity to show he was going to hold people accountable after the Auditor’s Report, and he didn’t. Therefore, the best strategy is to focus our time, effort and money on the future to make sure that Omaha is finally rid of individuals who take advantage of the city, waste significant amounts of money and cover for each other when a light begins to shine on their
activities.
We will be posting on our website the final documents from the suit. You will see, I made no apology and I strongly believe hat I stated was accurate. We will also be posting the actual depositions from both union President Steve Le Clair and Chief Mike McDonnell. You will be shocked at the way they have answered the questions and amazed at how little they can recall in one area and how much they remember of another. These depositions clearly show to me (in my opinion) that they took huge liberties with the labor contacts that no mayor or city council should allow and there should be significant consequences for the Chief for allowing this game to be played. The department has run over budget in the past by $5,000,000 a year and they have done very foolish things that have significantly cost the taxpayers.
It is time to move on from this battle and look toward the most important one, the 2013 elections.
Feel free to contact me if you have any questions on these matters and thanks so much for being a part of our organization and roviding us support as we have worked to make Omaha a better managed city.
Sincerely,
David Nabity
Release from Attorney for Dave Nabity and OmahaAlliance.com:
Yesterday, David Nabity and Omaha Alliance for the Private Sector, Inc. settled their lawsuit with Steve LeClair. Attached are the relevant documents.
David Nabity did not apologize for the statements he made on KFAB and he did not retract them. There has been no admission of liability or damages, whatsoever. Neither David Nabity nor Omaha Alliance will pay a single dime to Steve LeClair.
Omaha Alliance’s liability insurer, Great American Insurance Company, made a business decision that it was in the insurance company’s best interest to pay the minimal sum of $9,000.00 as opposed to paying legal fees for a weeklong trial. Right before trial, Steve LeClair was willing to settle his lawsuit for a fraction of what he had paid in attorney’s fees over the last year but he no longer demanded an apology or retraction or public vindication. Up to that point, the insurance company could not compel
Nabity or Omaha Alliance to apologize or retract the statement and would have paid for trial. Until Nebraska enacts some type of loser-pay lawsuit reform, plaintiffs’ attorneys can continue to collect from insurance companies without having to set foot in court and individuals will continue to have money paid on their behalf without having an opportunity to contest liability.
Regards,
Joshua W. Weir
Dornan, Lustgarten & Troia, PC, LLO.
1403 Farnam Street, Suite 232
Omaha, NE 68102
Ph: (402) 884-7044
Fax: (402) 884-7045
Other statements, releases, and depositions on the matter:
Nabity Joint stipulation for dismissal with prejudice (2).pdf
Release and Settlement Agreement.pdf
Final McDonnell Deposition.pdf
