2018-07-06 / Community

City councilors to get attorney access

By Duke Harrington
Staff Writer

SOUTH PORTLAND — It took several hours and created no small amount of apparent animosity, but the South Portland City Council has reached a compromise on its standing rules, which will now allow each member one hour per month of private consultation with the city’s contracted attorney.

The question of how and when – and, indeed, even if – councilors could speak directly to legal help was first raised nearly 18 months ago by Councilor Eben Rose, who, since his 2015 election, has voiced frustration with City Attorney Sally Daggett of Portland firm Jensen Baird Gardner & Henry.

After he and former Councilor Brad Fox were publicly rebuked for efforts to secure an opinion from Daggett outside of a regular meeting or executive session, Rose asked to review the council policy on council contact with the city attorney.

Drafted in 2008 and followed since – although apparently never formally voted on – the rule states that “The need for legal advice shall be determined by the city manager or the mayor,” would be the sole point of contact with the attorney.

“No individual (councilor) shall contact the city attorney to seek legal advice without having first contacted the mayor,” according to the policy.

That, however, did not stop some on the council from picking up the phone.

Although Rose denied being one of the councilors involved, Councilor Maxine Beecher said instances of her peers reaching out for legal resources extended beyond Daggett. Foley Hoag, which is representing South Portland in its lawsuit with Portland Pipe Line Corp. over tar sands oil, piled up “an extreme amount of hours,” she said, fielding questions from unnamed councilors, resulting in “billing that went on far too long.”

When the council finally addressed Rose’s questions in February, he initially stumped to dump Daggett in favor of hiring an in-house attorney answerable directly to the city council, with a deputy corporate counsel assigned to aid the city manager and other department heads.

That proposal was a non-starter for most of Rose’s peers, however, and after a second workshop May 22, a new seven-point policy governing how councilors could interact with Daggett (or other legal resources) was drafted.

The council took up that addition to its standing rules June 19. However, Rose was taken aback by the language of the finished product brought to vote, claiming that much of it had been created by Daggett, who, he said, added passages the council didn’t ask for at the workshop.

Rose’s rejection of the proposal was supported by a former councilor and city mayor, Rosemarie De Angelis.

“I think this is the most ridiculous thing I’ve ever read. It’s just completely absurd,” De Angelis said, taking up Rose’s view that the attorney, like the city manager and city clerk, is a direct hire of the council, and thus answerable directly to it.

Unlike the case with all other city employees, the council should be able to interact with the attorney directly and not work through the city manager as a go-between, she said.

Drawing particular ire from De Angelis was a passage that called on the manager to sit in on all conversations between Daggett and individual city councilors.

“That’s really absurd,” she said. “That’s offensive and it should be offensive to you, as councilors. You shouldn’t have to be monitored by somebody, to have your employee oversee what you do.”

De Angelis also faulted the legalese of the policy, saying she read it through several times and still found trouble understanding exactly what it said.

“It’s so wordy and thick with confusion, it’s really a mess, and it really ties your hands as councilors as to what you ought to be able to do,” she said.

However, Summit Street resident Jeff Selser, an attorney, deemed the document, “a very good policy.”

Selser argued that the attorney is hired by and works for the council as a whole, not each one on an individual basis.

“It is a complete waste of taxpayer money to even give each councilor the one hour, separately, with corporation council,” he said. “Everything the city does should be funneled through a single point of contact, which is extremely common in any legal representation.

“As a taxpayer, I feel comforted by the fact that councilors cannot run amok with corporation council and run up the bill,” Selser said, estimating that even the new one-hour per councilor provision would likely cost the city more than $3,000 per month.

Selser then went on to question Rose’s motivation in raising the issue.

“I think this has gone on long enough,” he said. “We are beating a dead horse here for what appears to me to be like a personal vendetta against a city employee.”

Rose asked to send the proposal to a third workshop to address “the main issue of power relations and power dynamics.”

Councilor Claude Morgan, however, would have none of it.

“Really, we’ve written this, Councilor Rose, to indulge you,” he said. “All that you have asked for, we have made concessions. There are no surprises in here.

“If we go back to workshop, we go down the rabbit hole again,” Morgan said. “And that’s what this started out as. I think we have done our best to make something that is a workable, functioning council rule, but this started out as an attempt to oust the corporation council, and it has frankly been ugly, and it has been public, and I would say it has been publicly humiliating (for Daggett).”

Councilor Sue Henderson took umbrage with Morgan’s characterization of the issue as Rose’s alone.

“By saying it’s Councilor Rose’s issue makes it not my issue, and that’s very demeaning to me, because it is an issue for me, too, as to what is the best way to govern ourselves,” she said.

Rose, Henderson and Adrian Dowling favored going back to workshop. What resulted instead was more than two hours of amendments, offered primarily by Dowling, attempting to “fix” the policy on the fly, he said.

Most of those amendments failed, with only Dowling and Rose in favor. One amendment that passed was to strike a passage that would have barred councilors from asking questions about past issues decided by the council.

Still, the bulk of the policy remained.

Although Dowling had more amendments to make and admitted only giving up as the clock approached midnight, Rose appeared satisfied with the result.

“What this whole effort was trying to obviate, or lessen, was some of the awkward interactions we have had, lo, these past couple of years, where I have had, or some councilor has had, very specific questions, only to then have to go through a group process that doesn’t allow those very specific questions to be answered,” he said.

“Sometimes I have asked the city manager, because he’s the one I had access to, about why we were doing something, what was our legal strategy and I never actually got an answer, because I didn’t have that face-to-face communication (with the attorney),” Rose said. “And, if I had that, I might have actually got an answer. That, to me, is an important goal.”

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