Originally Published: August 3, 2014 6 a.m.
PRESCOTT - In the wake of Prescott's recent decision to appeal a local board's ruling on retirement benefits for fallen Hotshot Andrew Ashcraft's family, the attorney representing the board has resigned, and an Ashcraft attorney says two other Hotshot retirement hearings are "in limbo."
In early July, the City of Prescott filed a notice of appeal on the Prescott Public Safety Retirement Board's May decision to grant retirement benefits to the family of Ashcraft, one the 19 Hotshots who died in June 2013 fighting the Yarnell Hill wildfire.
Since then, the law firm representing Ashcraft filed a notice of appearance in the case, indicating that it would defend against the appeal. However, the local board - the other defendant - did not respond within the time allotted.
Within days after the deadline for the notice of appearance, David Niederdeppe, the attorney who represented the local retirement board during its May hearings, submitted his resignation to the city.
Niederdeppe later declined to comment on the reasons for his resignation, and his July 28 letter of resignation to the city gave little indication, stating simply, "With this correspondence, we withdraw from our representation of the board."
Even so, Patrick McGroder, the attorney representing the Ashcraft family, maintains that an "unanswered question" in the matter is why Niederdeppe chose to resign just days after the deadline for the notice of appearance.
McGroder points out that the basis for the city's notice of appeal was "essentially an attack on the board members and their apparent inability to discern the evidence."
The notice of appeal that the city filed in Yavapai County Superior Court claims that the local board's decision was "based solely on emotion and is wholly devoid of any basis in law regarding (retirement) eligibility."
McGroder maintains that "The credibility and honor of the board members is under attack. I don't quite understand why the board is not in the appeal, defending its own decision."
But City Attorney Jon Paladini said he expects McGroder's firm to "zealously defend the board's decision."
He added: "I don't see it as inappropriate that the local board doesn't participate. I don't think it really would have any practical difference if the board doesn't participate."
Although McGroder said he agreed that his firm would defend the board's decision, he said, "It's disappointing to us that the board, for whatever reason, has now lost its attorney, and has not filed a notice of appearance."
Prescott Mayor Marlin Kuykendall, who by state statute serves as the chairman of the local retirement board, agreed that participation by the local board was unnecessary.
"I don't know what there would be to defend," Kuykendall said.
The mayor, who cast the only vote against the board's decision to award retroactive retirement benefits to Ashcraft's family, emphasized that he has stayed out of the City Council's consideration on the matter because of a possible conflict of interest with his role as chairman of the retirement board.
And of Niederdeppe's resignation, Kuykendall said, "There is no need for an outside attorney if there is nothing going on of a legal nature."
Paladini explained that state statute requires the local retirement board to have legal counsel (other than the city attorney), and requires the city to pay for the service.
Usually, an attorney is not on hand at the board meetings, he said, because past proceedings have been fairly routine. "(Niederdeppe) was retained primarily for dealing with Ashcraft, Misner, and Warneke," Paladini said, adding that the contract began in about February or March.
The board likely will have to retain new legal counsel, Paladini said, especially for coming hearings on retirement benefits for other fallen Hotshots Sean Misner and William Warneke.
McGroder noted that the hearings for Misner and Warneke have yet to be scheduled, "despite our repeated requests."
Although he said his firm agreed to allow the Ashcraft hearing to proceed before scheduling of the other hearings, McGroder said, "We're in limbo right now."
Meanwhile, the city attorney's department is working on its appeal on the Ashcraft decision. Paladini said the appeal is due in Superior Court in late August.
Follow Cindy Barks on Twitter @Cindy_Barks.