2018-09-14 / Front Page

Attorney accused of plagiarism

Councilors defend attorney, let her rebutt
By Duke Harrington
Staff Writer

SOUTH PORTLAND – City councilors have set two meetings and approved a third yet to be scheduled to review the job performance of city attorney Sally Daggett, following accusations that she billed South Portland for work taken from other sources.

It’s a decision that has stirred up some hard feelings among councilors, with one referring to two of her colleagues as “disgusting.”

In a Saturday, Sept. 8 workshop proposal form, Councilor Eben Rose noted that Daggett’s Portland-based firm, Jensen Baird Gardner & Henry, billed the city $437.50 for work done by Daggett to prepare an Oct. 30, 2017, email advising City Manager Scott Morelli on the best way to approach short-term rentals.

It was that email that laid the groundwork for South Portland’s approach the regulating short-term rentals as a licensing issue, rather than updating and clarifying zoning rules. As Daggett noted at the time and in subsequent emails, state zoning statutes provide a defined path to legal action. As such, she wrote, “There is a risk under this course of action of a Board of Appeals decision or subsequent court decision that is not consistent with the city council’s policy directive on shortterm rentals.”

South Portland has been embroiled in controversy ever since, with its efforts to regulate short-term rentals twice overturned by citizens petitions. The second version is now bound to voters for their approval, or not, at a Nov. 6 referendum.

At a council meeting Tuesday, Sept. 4, Rose questioned why Daggett’s October 2017 guidance referenced two towns in California and the pitfalls they encountered in trying to rein in short-term rentals, while failing to raise South Portland’s own experience. In a 1999 case, the Maine Supreme Court overturned a lower court decision, ruling that homeowners cannot rent rooms under South Portland’s home occupation ordinance if the building is not their primary residence.

“That’s the same law we have on the books bow,” Rose said. “How come we were not told about that case early on? Instead we got a legal opinion about what they do in California, from language that was taken word-for-word from HomeCompliance.com.

“That’s the legal advice we got and that’s what’s shaped this (debate),” Rose said, addressing the audience at that meeting, which had gathered for a council vote on sending the repealed regulatory package to referendum.

“And that’s how much power we as a legislative body lack, that we can’t get the kind of vehicle we need to do what all of you want to have done,” Rose said. “And that problem will continue and will not be solved even if this ordinance passes.”

As he has done since the start of South Portland’s messy minuet with short-term rentals – an approach expressly cited at an April Maine Municipal Association workshop on the topic as how “not” to do it – Rose said city code defining and regulating inns and tourist accommodations should have been at the center of the discussion all along. Instead, on Daggett’s advice, the council focused on erecting the new licensing framework, while refusing to call on Daggett or Code Enforcement Officer Matt LeConte to provide an interpretation of South Portland’s current zoning language and whether any of it applies to short-term rental units, as many vocal opponents of short-term rents have maintained.

“In not starting with where we are, we waylaid the rule of law,” Rose said.

In his Sept. 8 filing, Rose highlighted where Daggett’s Oct. 30, 2017, email copied a 2016 white paper authored by HomeComplince.com founder and CEO Ulrik Binzer, entitled, “A practical guide to effectively regulating shortterm rentals on the local government level.”

The lifted paragraph portions reference the California towns.

Although titled “Plagiarism by Corporation Counsel” – a title that would raise the ire of some of Rose’s fellow councilors – Rose did not ask for a review of Daggett’s work or a ruling on her continued employment. Instead, “The suggested action in response,” he wrote, “is to retain another law firm as the city’s legal counsel.”

That request drew some support from the handful of city residents who attended a Tuesday, Sept. 11 council workshop at which Rose’s proposal form was taken up. Among those backing Rose were George Corey of Franklin Terrace, Willard Street resident John Murphy – who urged the council to return to its old practice of keeping an attorney on staff, rather than contracting out for legal advice – and Hillside Avenue resident Linden Thigpen.

“This is not just about the (short-term rental) issue. That is just the most recent event that calls into question the legal services our city, and hence, our citizens, our taxpayers are receiving,” Thigpen said. “Plagiarism is only one of the issues.”

However, others said lawyers lifting whole passages from sources without citation is a common practice in the legal profession and not at all something over which to raise the alarm. Speaking in particularly strong terms was Summit Street resident Jeff Selser, himself an attorney.

“This is ridiculous,” he said. “Here we are, yet again, with Councilor Rose’s personal vendetta against Sally Daggett and Jensen Baird as corporation counsel. This is a complete waste of your time, our time, the citizens’ time, Sally Daggett’s time, and our money.

“First of all, this was not a legal opinion that Sally Daggett wrote, it was an email outlining why she gave certain advice,” Selser said. “When we are writing as lawyers, writing in emails or letters to our clients, it is extremely ordinary, overwhelmingly the norm, not to include all of our citations. We are trying to get the information across quickly because for the most part we are paid by the hour, and I, as one person who is paying for that hour, don’t want my attorney burning time trying to come up with original language in a few sentences that is just outlining what her thinking was.”

Others who could not attend Tuesday’s meeting submitted their comments via email.

“Eben Rose has showed nothing but disdain, prejudice and outright hostility toward Miss Daggett since he has been on the council,” wrote Colchester Drive resident Peter Stocks, adding, “Interesting we have never seen him attack a male figure in any such manner since he has been on the council.”

“Mr. Rose deliriously believes himself to be a brilliant legal mind. He is not,” Stocks wrote. “And, he is also not a lawyer. As a licensed lawyer in the state of Maine and a former lawyer who practiced for the U.S. Department of Justice and litigated in federal court for many years, and was a law clerk for a federal judge, I find most of Mr. Rose’s legal arguments inane and often, at best, misguided.”

Still, the concern for some was that Jensen Baird appeared, at least on the surface, to have billed for Daggett’s time as if she had conducted original research.

Meanwhile, others complained that Rose’s request to workshop the issue was accompanied by a rebuttal from Daggett.

“It’s as if that resolves the question and ends potential discussion,” Thigpen said.

In her response Daggett described her October 2017 email as an “informal communication,” saying, “I don’t typically provide citations in that type of a communication.”

The work was indeed taken from the white paper, Daggett said, and it is copyrighted material, but it also is a document widely available online and “part of written materials posted on many municipalities’ websites regarding short-term rental regulation issues.”

Because her appropriation of the copied material was for non-commercial purposes, it fell under “fair use,” Daggett said.

“I assume that the white paper’s author wants municipalities to be exposed to these various articles and the information therein to promote his short-term rental monitoring and compliance business,” Daggett wrote. “I did not write the email, or reference the checkered experiences of the two California towns, in any attempt to misappropriate another’s intellectual property or ideas. These were just factual references to what had actually happened in two other municipalities.”

For its part, the council refrained in large part from discussing the alleged plagiarism issue. Mayor Linda Cohen limited debate to whether or not Rose’s request for a future workshop on the issue should be honored. By drawing a second from Councilor Adrian Dowling, it was added to the council’s list of pending topics, although it has not yet been placed on any upcoming agenda.

Instead, as a more immediate action, the council agreed to bump up one other pending item, which is the first ever council review of Daggett’s job performance.

Along with the city manager and city clerk, the city attorney is one of three direct hires of the South Portland City Council. But one of Rose’s bugaboos from the beginning of his council tenure in 2015 has been the fact that the council never conducts a formal evaluation of its lawyer.

To some degree, it has been argued that this is because the city actually contracts with Jensen Baird for legal services, which then provides Daggett. However, as part of protracted council debate this past May on how individual councilors should or should not be allowed to solicit Daggett directly – it was eventually decided to give each councilor one hour per month of personal attorney time – it was agreed to conduct an evaluation of Daggett’s job performance.

The council agreed to take that item off its list of future workshop topics and scheduled the evaluation for Tuesday, Oct. 23.

In preparation for that closed meeting, the council will conduct a public workshop Tuesday, Oct. 9, at which it will settle on just what the evaluation criteria should include.

However, setting those duel sessions was not quite the period on the sentence. Before it adjourned, the council entered into a convoluted process of suspending its standing rules – a trip down the parliamentary rabbit hole that appeared to confuse most on the council.

The need was prompted by a motion from Councilor Kate Lewis to change the name on Rose’s workshop proposal form to add the words “Accusations of . . .” so that the more pejorative, “Plagiarism by Corporation Counsel,” does not sit in the public domain on the city website until a workshop on whether or not to seek a new law firm is finally scheduled.

“As a city we are saying that we are going to publicly humiliate our corporation council until we take this up,” Lewis said.

Cohen ruled the only way to change the form title was to suspend the council’s standing rules for scheduling workshops, even though, as Dowling pointed out, those rules say nothing on the naming of workshop agenda items.

The question soon became moot, however. In need of a two-thirds majority to suspend the rules, the motion failed, 3-2, with Dowling and Rose opposed. Councilors Claude Morgan and Sue Henderson were not at the meeting.

Immediately after the meeting, Lewis sent an email to Rose, indicating that some hard feelings persisted past gaveling of the session.

“I feel disgusted that you and Councilor Dowling of all people find it acceptable to resort to public humiliation before you would go through a valid performance review process. Disgusting,” she wrote.

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