Former County Mayor Mike Foster wants the Upper Cumberland Development District to pay his legal expenses in a federal criminal case which was brought against him last September stemming from the "Living the Dream" investigation. The charge against Foster was dropped in February. But UCDD has not yet reimbursed Foster and wants the Chancery Court to weigh in on whether it is legal to do so.
As a result of being indicted, Foster was required to retain counsel to defend himself and incurred $61,675 in attorney's fees. Foster has requested that the UCDD reimburse him for attorney's fees, costs and expenses incurred in defending the criminal charge against him.
In June the UCDD filed a petition for declaratory judgment in Putnam County Chancery Court asking the court to "declare whether it would be legal or illegal for the UCDD to indemnify or reimburse Foster for the fees, costs, and expenses he claims, under Tennessee constitutional, statutory, or common law."
UCDD also requested that "Foster be made a party to this proceeding as he has an indispensable interest in the outcome of this decision".
WJLE obtained a copy of UCDD's petition for Declaratory Judgment and Foster's response to UCDD's motion for Summary Judgment from the Putnam County Clerk and Masters Office Wednesday.
According to the UCDD's petition, Foster claims that he was indicted exclusively because of his participation in his role as Chairman of the UCDD Board, and not because of anything that he did in his personal and individual capacity. Foster contends that he only read what he was asked to read in a meeting as Chairman and did not otherwise or separately engage in improper conduct personally.
Foster was referring to a UCDD board meeting in 2012 which resulted in a federal indictment charging him with a single count of making false statements involving the use of federal money regarding the Living the Dream project.
The controversy stemmed from Foster's tenure as the chairman of the Upper Cumberland Development District, at the same time that longtime UCDD boss Wendy Askins was allegedly diverting hundreds of thousands of dollars of agency money into that million-dollar Living the Dream facility in rural Putnam County. What was supposed to become a home for needy seniors also became Askins' home.
Federal prosecutors indicted Foster for a moment caught on television cameras where Askins gave him language asking the UCDD board to retroactively approve a bogus set of minutes in an attempt to justify a $300,000 transfer. Foster's attorney, Hal Hardin, argued that Foster should never have been charged with making false statements because the video showed he was being manipulated by Askins and because he had expressed some uncertainty about whether the minutes were really accurate. Faced with a motion to dismiss, federal prosecutors agreed to drop the charge against Foster in February and the federal judge signed the order to make it official.
However, under the "Agreed Order of Dismissal" Foster had agreed that he "shall not authorize, file, or otherwise pursue any alleged claims he may have against the government for failure to prosecute him, for a claim that he is a "prevailing party" or any other claims he may have."
According to the petition, the UCDD has considered but not determined whether it should indemnify or reimburse Foster for the costs incurred. But the UCDD cites an old Tennessee Supreme Court case in which the high court stated that in "Smith versus Nashville" the governmental entity could not appropriate money to defray the cost of an official who had been prosecuted for official misconduct, although he be acquitted.
However, in his response to UCDD's motion for summary judgment filed Friday, September 12, Foster's lawyer Hilton Conger contends that the Alabama Supreme Court, while concurring with the Tennessee Supreme Court ruling in "Smith versus Nashville" also stated in the case of "Birmingham versus Wilkinson" that "the same policy which demands the holding of public offices to strict account in matters of public trust, also demands their protection against groundless assaults upon their integrity in the discharge of public duty".
According to Foster's response, "Mike Foster, along with 31 other County Mayors and Mayors of cities and towns in the Upper Cumberland area, were drafted into service on the boards of governmental agencies because of a statutory scheme devised by the General Assembly, not because of any financial gain or remuneration. If the citizens of the Upper Cumberland are to continue having good, decent representatives who are willing to serve and participate on the Boards of the various Public agencies gratuitously, those representatives must have the confidence that they have the backing of and protection of the Board if they should ever find themselves in the precarious position which Mike Foster finds himself."
UCDD is being represented in this matter by Daniel H. Rader, IV of Cookeville.
The case was to go before Chancellor Ronald Thurman but he has recused himself. Instead, Circuit Court Judge Amy Hollars will hear the case.