2018-03-02 / Community

Council may grant itself greater access to attorney

By Duke Harrington
Staff Writer

SOUTH PORTLAND — If a compromise proposal on access to legal services goes forward, South Portland City Councilors may soon be granted one hour per month, each, to consult privately with city attorney Sally Daggett.

Councilor Eben Rose, who has frequently voiced frustration with Daggett during his first term, made a request more than a year ago, on Feb. 9, 2017, to conduct a workshop on how and when councilors may interact with Daggett.

A 2008 “executive department” policy states that “the need for legal advice shall be determined by the city manager or the mayor,” and that the default will always be to seek advice from the Maine Municipal Association. However, if it is determined to consult with the city’s contracted legal services provider – Jensen Baird Gardner & Henry of Portland – “Initial contact with the city attorney . . . shall be made by the city manager or mayor.”

“No individual councilor shall contact the city attorney to seek legal advice without having first contacted the mayor,” reads the policy, adopted when James Soule held that office.

During Tuesday’s workshop, several councilors said that the legal access policy was never officially voted on and adopted by the full council, although it has remained in force ever since.

During his presentation, Rose noted that Daggett receives no formal performance review from the council, and stumped for a new legal services mode, that would dump the outside contract in favor of an in-house attorney answerable directly to the council, with a “deputy corporate counsel” assigned to aid the city manager and other department heads. Rose said this new city attorney would be tasked primarily with “housekeeping” of the city’s code of ordinances, clearing up inconsistencies and recommending revisions, but would be available for consultation with each councilor for up to one hour per week.

However, some saw in Rose’s proposal an ulterior motive.

“Let’s cut to the chase,” said Councilor Claude Morgan. “I think what we are talking about is firing our current legal counsel and hiring someone else. I really question your motives here as to why you feel that Sally must go.”

Morgan said any issues with Daggett’s performance was a human resources issues inappropriate for a public airing.

Morgan also noted that South Portland used to have an in-house attorney, prior to the current contract with Jensen Baird, a period he referred to as “the bad old days.”

“This is someone who would lobby individual councilors to get her way and had an agenda,” Morgan said, suggesting that because councilors could come and go and spend whole afternoons chatting it up in the attorney’s city hall office, “she never got her work done.”

“Why we went with outside counsel is because we had so many bizarre lawsuits that required us to go out (for specialized advice) anyway,” Morgan said.

However, Councilor Adrian Dowling called Morgan to the carpet for his review of the pre-Daggett era.

“I think it is inappropriate to speak ill of the dead, and I mean that literally,” he said. “The former corporation counsel is dead and cannot defend herself. So, let’s let that go.”

Mary Kahl, who served South Portland’s last in-house city attorney, from 1991 to 2008, died in 2011.

Still, other council veterans shared Morgan’s view of the Kahl era, and of Rose’s motives.

“I honestly was sort of offended when I even saw this whole (proposal),” said Councilor Maxine Beecher, who claimed South Portland once had 30 lawsuits against it going simultaneously under Kahl. “In all honestly this sounds like an individual wants their own attorney, and I’m not willing to go that way.”

“It kind of makes me sad to hear this taking an angry turn,” Rose said.

“I’m not saying it has to be in-house, it just has to be the council's,” Rose said, observing that, under the current policy, the city manager acts as a gatekeeper to legal advice.

“It’s not an affront, it is a fact, the executive branch is not elected,” Rose said. “And I think, as a whole, we can all agree that regardless of how it happens, someone has to be the guardian of our code.”

Rose said that because councilors cannot question Daggett directly, but must send questions through the city manager, the resulting work does not always reflect council intent.

“It’s not the council's voice that is coming through, it’s this other voice that is high and distant and unassailable,” he said. “We’ve has situations where the will of the council has gone out (to the attorney) and has come back (in the form of an ordinance draft) completely different.”

Rose also faulted the current process for either locking the city into “progressively weird, expensive battles,” based on interpretation of ordinances by the code enforcement officer – and during debates over tar sands and propane tank storage yards – or locking councilors out of getting any legal opinion at all, as with the failure to secure a definition of what is meant by an “inn.”

“There were all these questions I had but couldn’t get answers to,” Rose said. “When the oxygen is sucked out of the room for four months on short term rentals because we are not really addressing the language in our code, that is a loss to everyone.”

While no one but Rose supported changing the status quo with Jensen Baird, several councilors did say they would like greater access to legal advice. However, even those who were for allowing individual contact wanted to limit it to no more than one hour per month.

“It should be to ask questions but not to engage in debate about what the answers are,” said Councilor Kate Lewis. “I am concerned taxpayer dollars could quickly and easily sink into overuse of legal counsel.”

Councilor Adrian Dowling, on the other hand, expressed confidence he and his peers would not abuse the privilege.

“We talk about taxpayers as though there are someone other than us,” he said. “I’m not going to waste my own money. I’m not going to go hang out with Sally at however many hundreds of dollars just for funsies.”

Daggett questioned how she would tally the time spent with each councilor. Moreover, she asked, should she count only time spent answering questions, or also account for any research time required.

“I don’t want to have seven conversations that the rest of you don’t all know about,” she said. “Somebody’s got to be tracking what got asked and what the answer was.

“And when is the decision made that something is an issue that needs to involve the entire council and who is going to make that call?” Daggett asked. “This needs to be thought through. I think there are some practical considerations.”

The council agreed it was in no rush to make any changes, but did ask City Manager Scott Morelli to come back with a series of new policies it can review and approve regarding legal services, to include some provision for allowing councilors an hour, each, with Daggett per month.

“I just want to have some of the rich dialogue that can avoid the problems and fractions that we have had. That’s really the objective of this,” Rose said.

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