Correction: A previous version of this story misstated the percentage fee Councilman Brent Ackerson said he took for the EMT case. This has been fixed.
Only this time O’Connell is making the same accusation against Councilman Brent Ackerson, who will be his opponent in the Democratic primary for county attorney. If O’Connell prevails, the councilmen could lose out on hundreds of thousands in legal fees for representing two severely injured EMS workers.
The dust-up stems from a case in which Ackerson and Yates, who have separate private law firms, are suing an auto company on behalf of their clients after one of its employees — an alleged drunken driver — hit a city ambulance in a head-on collision during an emergency run.
The driver, who died in the crash, and the auto company had no assets, but the company did have a $1 million insurance policy.
In a motion filed in Jefferson Circuit Court on Wednesday, O’Connell’s office claims Ackerson and Yates should be barred from collecting legal fees from their clients. The county attorney says the council members are breaking state law, which carries a fine up to $5,000, that forbids local officials from being involved in a case in which the city has an interest.
“This is a political stunt by Mike to try to get me to look bad in the press and a retaliation by Mike against me for running against him,” said Ackerson, D-26th District.
Yates said O’Connell still has bad blood from their clash over the Explorer sex abuse scandal. O’Connell argued that Yates had a conflict of interest in that case because he couldn’t sue the city and stand to personally profit while serving on the council.
In January, Yates was disqualified by a judge from representing several former Scouts who allege they were sexually abused and harassed by Louisville police officers. He said the county attorney is using his public office to harm Yates’ private practice.
“For them to challenge the fees, I think anyone who is paying attention will understand there are ill motives here and that this is a political play to try and tarnish an opponent,” Yates, D-25th, said Friday. “There’s been no love loss between me and O’Connell’s office since I challenged his reasoning with regards to the victims of child sex abuse.”
Metro Councilman Brent Ackerson speaks during a press conference with members of the Democratic Caucus about current legislation in the Kentucky General Assembly and the “War On Louisville”. March 2, 2017 (Photo: By Michael Clevenger, C-J)
The Louisville government spent about $1.7 million on workers’ compensation, medical care, lost wages and other costs for the two EMTs, John Morgan and Johnathan Johnson, according to the county attorney’s office.
Morgan, who is being represented by Ackerson, was in the passenger seat of the ambulance and suffered a crushing wound to his leg that later resulted in amputation, according to court records. The arbitrator said he suffered $5.6 million in damages alone.
Johnson, who is being represented by Yates, was driving the ambulance and sustained “significant injuries and mental trauma” worth $2.9 million, according to court documents.
Under state law, a third party, which in this case would be the city, isn’t entitled to recover expenses unless the victims are made whole.
The city claims it has a right to some of that money, but O’Connell’s office said it won’t seek any as long as Ackerson and Yates do not collect their fees. His office cites the EMTs’ pain and suffering, adding that the city has “significant interest in seeing them recover as much as possible in an attempt to be made whole.”
The county attorney’s motion said the EMTs should be paid about $612,900 from the pool of the auto company’s insurance money. But it argues that the court should withhold the roughly $364,600 the city estimates will be paid to Ackerson and Yates.
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Citing state law, O’Connell’s office said in its motion Wednesday that two council members cannot have claim to a pool of money before the city they represent collects. It adds that as council members, Ackerson and Yates, “should be interested in recovery on behalf of the government they represent” rather than themselves.
Ackerson obtained an opinion from the Metro Ethics Commission, which oversees those guidelines for city officials, that affirmed in July 2017 that he was “acting as a private attorney” and had no conflict.
He also said that O’Connell’s assistants acknowledged in a letter that month that while the county attorney’s office believed there was a conflict of interest, it was irrelevant to the case. Ackerson noted that was before he filed to run for county attorney.
“The only wrong I have committed is to have the audacity to challenge Mike O’Connell for an office that he believes he’s entitled to,” Ackerson said. “For that wrong I will not apologize nor will I concede ground to.”
O’Connell spokesman Josh Abner said the motions, “speak for themselves in that (state law) controls this purely legal question.”
David Yates, Metro Council President. March 2, 2017 (Photo: By Michael Clevenger, C-J)
His office claims Yates is seeking a whopping 45 percent of his client’s damages while Ackerson is seeking 33 percent. The court records say Ackerson acknowledged that was his fee but that Yates had not responded to their inquiry.
Yates told Courier Journal on Friday that the amount in the motion was “fabricated” by the county attorney. He said his fees are 33 percent prior to litigation and 38 percent afterward.
“That might be what Mr. O’Connell charged in his private practice but I charge less,” Yates said.
“If you contact any personal injury attorney you will find that these type matters are taken on contingency fees, usually 33 percent to 40 percent,” Ackerson said. “I took Morgan’s case at 33 percent, a reasonable fee under all the circumstances.”
In its motion, the county attorney also alleges that before filing the suit two years ago, Ackerson and Yates reached out to the city’s budget office asking if the city would waive its claims to the settlement.
O’Connell’s office said that request by itself wasn’t unusual but that it raises concerns because Ackerson and Yates are council members.
Ackerson told Courier Journal that the county attorney’s “motion is lying when it says” they reached out to the budget office. He said their case never involved Louisville government because the EMTs were no longer employed by the city when they took on the case.
Yates also denied that he approached the Office of Management and Budget about the city releasing its liens in the case.
Reporter Phillip M. Bailey can be reached at 502-582-4475 or firstname.lastname@example.org. Support strong local journalism by subscribing today: www.courier-journal.com/philb.