In re Tornow

• Decision Date: 07 August 2013
• Docket Number: No. 26430.,26430.
• Parties: In the Matter of the DISCIPLINE OF R. Shawn TORNOW, as an Attorney at Law.
• Court: South Dakota Supreme Court

835 N.W.2d 912
2013 S.D. 61

In the Matter of the DISCIPLINE OF R. Shawn TORNOW, as an Attorney at Law.

No. 26430.

Supreme Court of South Dakota.

Argued May 21, 2013.
Decided Aug. 7, 2013.

Original Proceeding.

[835 N.W.2d 915]

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]

[835 N.W.2d 916]

by the Disciplinary Board.” SeeSDCL 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.

GENERAL BACKGROUND

[¶ 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.

FACTS A

[¶ 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

[835 N.W.2d 917]

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 p.m. 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 e-mail 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

[835 N.W.2d 918]

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,¹ to conduct a workplace investigation of Tornow's possible dishonesty and deception in the Staggers matter.² In the course of the investigation, Gering asked Tornow if he raised the precinct committeeman issue with the Board of Ethics:

Mr....