IN THE MATTER OF THE DISCIPLINE OF R. SHAWN TORNOW, AS AN ATTORNEY AT LAW.
ARGUED MAY 21, 2013
ROBERT B. FRIEBERG Disciplinary Board Counsel Beresford, South Dakota Attorney for Disciplinary Board.
DARRELL A. JESSE of Crary, Huff, Ringgenberg, Hartnett & Storm, P.C. Dakota Dunes, South Dakota Attorneys for Respondent.
GILBERTSON, Chief Justice
[¶1.] The City Attorney for the City of Sioux Falls, David A. Pfeifle, filed a complaint with the Disciplinary Board of the State Bar of South Dakota against R. Shawn Tornow, a member of the State Bar of South Dakota. Tornow appeared at the Disciplinary Board hearing and waived his right to counsel. Following the hearing, the Disciplinary Board filed its findings of fact and conclusions of law and its recommendation that Tornow be publicly censured. This filing constitutes a formal accusation. SDCL 16-19-67.
[¶2.] Pursuant to SDCL 16-19-68, Tornow answered the formal accusation and denied the allegations against him. This Court referred the matter to Circuit Judge Jack R. Von Wald. SDCL 16-19-68. Following a hearing where Tornow appeared pro se, Referee Von Wald filed findings of fact and conclusions of law and recommended that the matter be remanded to the Disciplinary Board for a "private reprimand and admonishment to [Tornow] by the Disciplinary Board." See SDCL 16-19-35(5). Tornow failed to respond to the Referee's recommendation. At oral argument before this Court, however, Tornow asked that the matter be remanded to the Disciplinary Board for a private reprimand.
[¶3.] Tornow is forty-nine years old. He has been married for twenty-eight years and has an adult daughter and two teenage sons. He and his family reside in Sioux Falls.
[¶4.] Tornow graduated from the University of South Dakota School of Law in December 1987. In 1988, he became an Assistant Attorney General and worked in that office for over five years. After a year and a half as the full-time Deputy State's Attorney in Hughes County, Tornow worked for the Department of Social Services in the Medicaid program.
[¶5.] In 1995, Tornow became the Chief Assistant City Attorney for the City of Sioux Falls and later became an Assistant City Attorney for Sioux Falls. He was terminated from the City Attorney's Office on August 27, 2010. Tornow believes he was wrongfully discharged, has exercised his civil service appeal rights, see Tornow v. Sioux Falls Civil Service Bd., 2013 S.D. 20, 827 N.W.2d 852, and served a notice of intent to bring legal action for damages against the City of Sioux Falls for § 1983 violations.
[¶6.] Tornow is currently in the private practice of law in Sioux Falls. Since his admission to practice law in South Dakota in 1988, he has had no substantiated disciplinary complaints.
[¶7.] While Tornow began his career in the Sioux Falls City Attorney's office as the Chief Assistant City Attorney, at the time of the allegations in question he was a mid-management Assistant City Attorney. Among his responsibilities were advising city government officers and employees on city matters, enforcing city codes, prosecuting city ordinance violations, and providing legal counsel to the City's Board of Ethics. This board is comprised of citizens of Sioux Falls who are appointed by the mayor of Sioux Falls. By city ordinance, Board of Ethics proceedings are confidential.
[¶8.] In 2010, former Sioux Falls City Council member Kermit Staggers was running for mayor of Sioux Falls. In a March 31, 2010 e-mail to City Attorney Robert Amundson, Tornow wrote:
Finally, please note there also is a pending nearly lock-solid violation by KS [Kermit Staggers] of Charter Sec. 2.05-prohibition of council members holding other elected office that's just come to light. That violation too could/should be investigated under the authority of the Board of Ethics, if someone might want to go there by filing or calling for a complaint/investigation. RST.
[¶9.] On April 8, 2010, two Sioux Falls city employees filed a complaint with the Board of Ethics alleging that Staggers "possibly used confidential city information to promote his personal interests as a candidate for Mayor of the City of Sioux Falls." The employees were concerned that Staggers used his position on the City Council to obtain their confidential home addresses.
[¶10.] The Board of Ethics investigated the complaint during April/May 2010 for possible violations of Sioux Falls city ordinance and charter provisions. During the Board of Ethics' investigation, Tornow told the board members that Staggers served as a State Republican Party precinct committeeman while serving on the City Council and violated a provision of the city charter prohibiting council members from holding other elected offices.
[¶11.] The Board of Ethics investigated the precinct committeeman issue and ultimately reprimanded Staggers for it. This issue, however, was not the subject of the filed complaint where the Board of Ethics found no ethics violations. The reprimand resulted in Staggers publicly castigating the Board of Ethics for what he characterized as a "fishing expedition." Staggers also repeatedly attempted to contact the chair of the Board of Ethics to discuss the reprimand. As a result, the chair of the Board of Ethics asked Tornow to talk to Staggers and explain that the matter was resolved and there would be no further contact.
[¶12.] Tornow called Staggers at approximately 5:25 p.m. on May 18, 2010. During the course of the eight-minute conversation, the two discussed whether Tornow brought up the issue of the precinct committeeman with the Board of Ethics. Tornow told Staggers, "I didn't bring anything up." Tornow suspected that Staggers might sue the City over the ethics matter and recorded the phone conversation on the City's IT system which was routinely used by city officials who elected to record some phone conversations held in the discharge of their duties. The conversation was recorded without Staggers' knowledge.
[¶13.] On June 17, 2010, Staggers e-mailed Tornow at 10:30 a.m., asked to "obtain a copy of the recording of our 5:30 PM, May 17th telephone conversation, " and said he would pick it up the next day at the City Attorney's office. Upon receipt of Staggers' request, Tornow e-mailed Sioux Falls Mayor Mike Huether and wrote, "FYI, I just rec'd a fairly strange e-mail request from Kermit Staggers in regard to the Board of Ethics most recent dealings with him based on the complaint filed against him." Tornow told Mayor Huether that he was in a "quandary how best to respond, if at all, as Kermit apparently continues to snoop around about the ethics complaint and the BOE's (finalized) actions in response." Tornow asked to meet with the mayor to discuss Staggers' request. Mayor Huether, however, forwarded Tornow's e-mail to City Attorney Amundson and Chief Assistant City Attorney Gail Eiesland, who had succeeded Tornow as Chief Assistant City Attorney.
[¶14.] Amundson e-mailed Tornow at 3:50 p.m. on June 17 and directed him to forward Staggers' e-mail to him and Eiesland for review. Tornow did so at 5:57 p.m. on June 17, telling Amundson that, "please keep in mind that there was no phone call to Staggers on May 17th . . . I called Kermit at approx. 5:25 pm on Tues., May 18th." Tornow told Amundson that he had "a personal copy of the phone call, " and that the phone call was not a public record "based on the clear and unambiguous provisions of SDCL 1-27-1.5(12)." Tornow characterized the phone call as a "non-public phone conversation[ ]" that was "simply kept in an employee's personal record(s)." While Tornow had "absolutely nothing to hide in or during my conversation with Staggers, " he did not want the conversation released for a variety of reasons.
[¶15.] The next morning, on June 18 at 9:15 a.m., Amundson e-mailed Tornow and directed him to have the phone call with Staggers transcribed. In an email response at 11:43 a.m., Tornow told Amundson that, "[m]y personal record of the Staggers 8 min. phone conversation should not be turned over to KS[.]" He also informed Amundson that:
As to an audio copy of the May 18th conversation for potential internal review purposes: it's an audio file not on the city system, however, I have a copy at home that I'll try to get into file format in order to get to media services and, if so, they should hopefully be able to transcribe it, if necessary.
[¶16.] Later on June 18, Amundson directed Eiesland to attempt to obtain a copy of the recording of the Tornow/Staggers phone conversation. At 4:45 p.m. on June 18, the City's Information Technology manager found the recording on the system's backup files. The manager believed the recording had been deleted from the City server between 1:00 a.m. and 2:00 p.m. on June 18, but could not determine who deleted it.
[¶17.] Staggers e-mailed Tornow again on Monday, June 21 at 9:30 a.m. saying he stopped to get the recording but nobody at the City Attorney's office had a copy. He asked Tornow to leave a copy of the recording at the front desk. At 7:42 p.m. that evening, Tornow e-mailed Staggers saying, "Not sure what you're attempting to dig up here—there was/is no such recording, " and suggesting that Staggers contact the chair of the Board of Ethics. The next afternoon, Staggers responded, "My understanding was that in accordance with standard operating procedures important phone calls were taped. Thank you for clarifying the issue with our phone call."
[¶18.] The City hired an outside investigator, attorney Cheryle Wiedmeier Gering,  to conduct a workplace investigation of Tornow's possible dishonesty and deception in the Staggers matter. In the course of the investigation, Gering asked Tornow if he raised the precinct committeeman issue with the Board of Ethics:
Mr. Tornow stated that he "may have" in response to an inquiry from a Board of Ethics Committee member as to what ordinances they needed to be looking at as they reviewed the ethics complaint involving Mr. Staggers. Mr. Tornow went on to say that if he did, he may have "overstepped."
[¶19.] The investigation also revealed that Tornow recorded the May 18, 2010 conversation on his office phone system. After receiving Staggers' request for a copy of a May 17th recording of "our 5:30 p.m., May 17th telephone conversation, " Tornow played back the May 18th conversation and recorded it on his personal hand-held digital recorder. He then deleted this recording from the City's phone system.
[¶20.] The investigator's report detailed Tornow's reasons for deleting the recording:
[Tornow's] system had a large number of saved messages/ recordings on it (there is a maximum number that can be saved/recorded); the recording was about a confidential Board of Ethics (BOE) matter; the recording was not a public record pursuant to state law (SDCL 1-27-1.5(12)); he believed that Mr. Staggers would use the mere fact that the conversation had been recorded against the City Attorney's Office and the BOE; Mr. McKnight's [the chair of the Board of Ethics] strong feelings expressed to Mr. Tornow that the recording should not be given to Kermit Staggers (note that Mr. McKnight did not tell Mr. Tornow to delete the recording); and Mr. Tornow was protecting his client (the Board of Ethics) and himself by deleting the recording from the City phone system in the event that a subpoena request was received for the recording.
[¶21.] The investigator concluded that Tornow knew what conversation Staggers was asking for, but did not tell Staggers that he had the wrong date:
According to Mr. Tornow, when he told Mr. Staggers there "was/is no recording, " he was "word-smithing" his response to Kermit Staggers as Mr. Staggers' e-mails inquired about a "May 17th" conversation and there is no recording of a May 17th conversation as there was no conversation between Staggers and Tornow on that date.
[¶22.] Shortly after Tornow was relieved of his duties in the City Attorney's office, Staggers threatened a lawsuit against the Board of Ethics and the City. The recording would have been a part of the evidence in that proceeding. The matter was settled. Staggers also filed a complaint with the State Open Meetings Commission which found that the Board of Ethics violated state open meetings law and issued a public reprimand.
[¶23.] In March 2009, Tornow's 20-year-old daughter, Megan, was cited by a Sioux Falls police officer for a state no seat belt violation and a city speeding in a school zone violation. Because of Tornow's position in the City Attorney's office, the prosecution was handled by the Minnehaha County State's Attorney's office. The City Attorney's office had a long-standing practice with the State's Attorney that the State's Attorney would prosecute cases in which the City had a conflict.
[¶24.] Megan was represented by attorney Dan Brendtro. On the eve of trial, Brendtro called Tornow at home and asked him if there was a joint powers agreement between the State's Attorney's office and the City Attorney's office that allowed prosecution in Megan's case. Tornow told Brendtro that there was no joint powers agreement allowing the State's Attorney to prosecute a city citation.
[¶25.] At a June 12, 2009 appearance in magistrate court, Brendtro moved to dismiss Megan's case because the State's Attorney lacked the jurisdiction to prosecute. The motion was granted without prejudice.
[¶26.] A deputy state's attorney notified Chief Assistant City Attorney Eiesland of the dismissal and told her that Brendtro received advice concerning the motion from someone in the City Attorney's office. When questioned by Eiesland, Brendtro told her that he had spoken with Tornow.
[¶27.] Tornow admitted speaking to Brendtro about the jurisdictional issue and claimed he was obligated to do so pursuant to Rule 3.3 of the South Dakota Rules of Professional Conduct.
[¶28.] After the dismissal of Megan's citations, she was recharged with violations of state law. Following her conviction, Tornow represented her on appeal to the circuit court. In his appellant's brief, Tornow alleged that the case was a "strangely mishandled traffic case" involving "this bungled state prosecution." Tornow submitted that the State "improperly filed its June 23d complaint as a factually retaliatory measure against [Megan Tornow]." Tornow referred to the "State's ignorance or obfuscation" of statutory requirements, the "State's feeble attempt to cover their mistaken charge, " and the "State's concocted careless driving charge." Tornow also wrote:
Unfortunately, this retaliatory prosecution effort was further bolstered by Magistrate Sage as a part of his review of the case when he astonishingly complained and/or criticized on the record that:
"The more despicable thing to me is we all know who this is and . . . I think this is pretty despicable on Mr. Tornow's part, if that's the case. It was charged [as] a city offense to start with and then you end up in state court and fight it . . . ."
[¶29.] In its findings of fact, the Disciplinary Board, in addition to entering findings on the Staggers and Megan Tornow matters, found:
34. [Tornow's] written responses to the Board deny any rule violations on his part. He claims Pfeifle's complaint was made for the purpose of ". . . bolster[ing] their discriminatory and pretextual personnel action through their discharge of my employment." [Tornow] states further, ". . . this complaint was submitted as an improper attempt to bolster the City's lack of just cause for its discriminatory and pretextual discriminatory action on August 27."
35. [Tornow's] frequent requests to delay the Board's investigation because of [Tornow's] inability to obtain evidence necessary to support his reply to the complaint [were] pretextual.
36. [Tornow's] misconduct constitutes violations of the Rules of Professional Conduct and has been prejudicial to the administration of justice in bringing into ...