Here’s a phrase you don’t see every day in a court hearing transcript:
“A complete whopper.”
That’s how Bryan Diemer – a labor attorney on the payroll of the International Union of Operating Engineers Local 150 – characterized an argument Woodstock attorney Robert Hanlon used in defense of his client, Algonquin Township Highway Commissioner Andrew Gasser, during a contempt hearing earlier this month.
That argument, in short, was this: “... given the government shutdown, no matter what Mr. Gasser would have done, there’s no way you’d have a panel [of arbitrators] at the end of the month,” Hanlon told the court.
Earlier in hearing, Hanlon – who is paid $400 an hour for his services – told the court this: “I point out to the court that the Federal Mediation and Conciliation Service was closed.”
“Why were they closed?” Lake County Circuit Court Judge Daniel Jasica asked.
“Because there was a shutdown of the federal government,” Hanlon said. “And I’ll ask the court to take judicial notice that Mr. Trump and Congress don’t necessarily always get along, and as a result, because he wanted a wall, the federal government was shut down.”
Later, Jasica asked: “So what period of time is it your position that the Federal Mediation and Conciliation Service was effectively unavailable because of the government shutdown?
“All the way up until the 28th, Judge,” Hanlon said.
“From when?” Jasica asked.
“They started on December 22nd, and the government was shut down until January 25th,” Hanlon said.
Hanlon delivered that argument on March 1 – but documents obtained by the Northwest Herald revealed Gasser’s attorney received an email from the FMCS Director of Arbitration Arthur Pearlstein informing him the government shutdown at no time impacted the office, and the FMCS remained open throughout January.
In response to a brief Hanlon filed before the contempt hearing raising the government shutdown argument, Diemer contacted Pearlstein and asked if the FMCS had closed. It did not, he said.
“At the request of Mr. Diemer, this is to confirm that the Federal Mediation and Conciliation Service was fully funded through the end of the 2019 fiscal year [ending on September 30, 2019] and was at no time subject to what has commonly been referred to as the ‘government shutdown,’ ” Pearlstein wrote in an email to both Diemer and Hanlon. “We have been continually open for business and have been processing arbitration requests without interruption throughout this period. The fact that we were open for business was prominently displayed on the home page of our website throughout the shutdown period.”
At the March 1 hearing, Diemer tried to illuminate the court about his findings.
“I want to address what I’ll characterize as a complete whopper,” Diemer said. “Mr. Hanlon has asked the court to take judicial notice of the federal – the shutdown of the federal government that occurred from late December to January 25th. Now 75 percent of the federal government remained working through the shutdown. When I received the brief on Wednesday night, the first thing I did on Thursday morning was call FMCS, because this was news to me. We were processing cases the entire month of January. I talked to the Director of Arbitration for the Federal Mediation and Conciliation, and he sent an email to myself and Mr. Hanlon.”
“Objection,” Hanlon said.
“Sustained,” Jasica said.
“Counsel can’t testify – ” Hanlon said.
“It’s sustained,” Jasica said. “All right. Anything else you would like to tell me?”
“So what I would tell you is that if the court is going to take judicial notice of the shutdown, and if that’s going to be a basis to evaluate any claims, I would also ask the court to take judicial notice of the fact that the Department of Defense, the Department of Labor, Health and Human Services, Energy, Education, Veterans Affairs, Social Security, Nuclear Regulatory Agency, National Labor Relations Board, National Mediation Board, Railroad Retirement Board, the list goes on and on, and FMCS were all open for business, were all processing and doing work of taxpayers,” Diemer said. “So this is a frivolous, false argument that’s only being proffered to obfuscate the issues before the court.”
Later, Diemer cross-examined Gasser on the stand and asked him about Hanlon’s government shutdown argument.
“Now Mr. Gasser,” Diemer said, “we heard in Mr. Hanlon’s opening, and we also saw in his brief that the Road District has asked the court to take judicial notice of the fact that the federal government was closed or shut down between December 22, 2018 and January 25, 2019?”
“Yes, sir,” Gasser said.
“And you agree with that?”
“You’re a public official and a learned man and presumably follow the news?” Diemer asked.
“Objection, Judge,” Hanlon said. “Well, I’ll withdraw it for now.”
“You can answer,” Diemer said.
“I just said yes, sir,” Gasser said.
“You follow the news?” Diemer asked.
“Not nearly as closely as I used to, especially federal news,” Gasser said. “I’m more worried about snowstorms and stuff like that.”
“Were you personally – excuse me, say again?” Diemer asked.
“I’m more worried about snowstorms and stuff like that.”
“You’re more worried about snowstorms?”
“Yes,” Gasser said.
“You were aware of the federal shutdown?” Diemer asked.
“I was aware of it,” Gasser said, “but I didn’t follow its daily tracking or anything like that.”
“You were aware that 75 percent of the federal workforce remained working despite the shutdown?” Diemer asked.
“I did not know the percentage of it.”
“You did not?”
“No, sir,” Gasser said.
“Were you aware that much of the federal government continued working despite the shutdown?” Diemer asked.
“No, sir,” Gasser said.
“You were not aware of that?”
“No,” Gasser said. “Only critical services, I think the main takeaway, whatever that was.
“Only critical services?” Diemer asked.
“I remember that being a headline on Drudge,” Gasser said.
“Critical services remain open,” Gasser said.
“And everything else you believe was closed?”
“Yes, sir,” Gasser said.
“So if I told you that the shutdown only affected 25 percent of the federal government, you would ...” Diemer said.
“I’d agree,” Gasser said.
“You’d agree with that?” Diemer asked.
“Objection, Judge,” Hanlon said. “Mr. Diemer’s testifying at this point because he’s introducing facts –”
“Sustained,” the judge said. “The objection is sustained. The answer is stricken.”
“Can you tell me which federal agencies were shut down?” Diemer asked.
“No,” Gasser said.
“Do you believe that the FMCS was closed during the government shutdown?” Diemer asked.
“You did,” Diemer said. “Why did you believe that?”
“Because all the news agencies were reporting that there was a government shutdown,” Gasser said.
“You understood that it wasn’t a complete shutdown?” Diemer asked.
“So you mentioned the Drudge Report,” Diemer said. “Is that a source that you go to for news?”
“Do you go to any other sources for news?” Diemer asked.
“Whatever pops up in my newsfeed,” Gasser said, “but normally it’s Drudge.”