With threat of lawsuit, council attempts second try at hiring in-house attorney
Actions too little, too late for Councilor Cummings
Though not quite admitting fault, the West Linn City Council is looking for a do-over on hiring an in-house city attorney.
After allegations and a threat of a lawsuit from Councilor Teri Cummings and resident Karie Oakes concerning violating open meeting laws, the council will void its earlier decision, re-discuss the issue and vote at its Monday regular public meeting. But that may not be enough to cure Cummings' frustrations with how she says the council routinely conducts itself.
The claim against the city states that the city council violated Oregon law by reconvening a meeting without public notice or announcement; the exemption under which the council met in executive session was incorrect; and the council misused an executive session to evaluate city goals.
The alleged violation occurred March 12, when Mayor John Kovash asked City Manager Chris Jordan to add an executive session to that night's meeting agenda to discuss creating a position for an assistant attorney, who would be hired and supervised by Jordan.
The March 12 executive session was originally exempt from being open to the public under ORS 192.660(2)(a), which pertains to considering hiring a public employee or staff member. On advice from City Attorney Tim Ramis during a pre-meeting, it was changed to ORS 192.660(2)(i), which encompasses a staff member review and performance evaluation, with Ramis as the subject of the review.
Kovash claims there was no intent of holding an inappropriate executive session and that no one expressed concern about it prior to the session.
'In fact, the audio recording of that pre-meeting demonstrates that your client, Ms. Cummings, not only received this advice without any question or objection, but that she also thanked the city attorney for the advice,' wrote Chad Jacobs, one of the city's attorneys with Beery, Elsner and Hammond, in a Tuesday letter to Cummings' attorney. Jacobs was hired by the city to review the tort notice and the executive session recording.
On March 12, the city council adjourned its normal meeting, held the executive session, then reconvened to make a motion and approve giving Jordan the authority to recruit, hire and supervise an assistant attorney.
Disagreeing with the recommended motion, Cummings chose to not return to council chambers after the executive session and did not vote on the motion. Because Cummings didn't return to the meeting and was the only voice against the decision, there was no discussion before the council voted.
Cummings said the mayor did not properly notify the public that the council may reconvene after the executive session and this is just one example of the ways the council is not transparent in its actions.
'I've been trying to get them to stop misusing executive sessions,' said Cummings. 'It's hiding in plain sight.'
Kovash said, 'There's certainly no indication in that process that anybody was trying to hide something.'
When asked if the council intentionally broke public meeting laws, Kovash said, 'Absolutely not.'
'We have not found any evidence whatsoever of an intentional disregard of the law and/or willful misconduct on the part of any councilor,' according to a letter from Jacobs sent to Cummings' attorney, Jeffrey Seymour.
'There was no intent to deceive or do anything in secret,' said Councilor Mike Jones. 'If there was a technical violation there, then we need to fix it.'
The letter continued to state that further litigation from Oakes and Cummings would be frivolous and the city would seek to recover attorney fees if the claim continues.
Besides the meeting violation, Cummings thinks the council is going against the city charter by allowing the city manager to hire an in-house attorney. The chapter 3, section 8(f) of the charter reads: "The council may retain legal advisors as it deems prudent. The legal advisors shall report to and serve at the discretion of the council."
Kovash said Cummings was unhappy with the council's decision to allow the city manager to hire an in-house attorney and so she turned to the lawsuit.
'The genesis of this situation is her incorrect reading of the charter,' Kovash said.
Other members of the council and Cummings are interpreting the charter two different ways, whether or not the city manager has the power to hire an attorney. Cummings believes he cannot.
According to Jacobs, 'City Attorney Mr. Ramis and our office have concluded that the West Linn Charter permits the city council to authorize the city manager to hire and be responsible for supervising an attorney.'
He goes on to explain that because the charter uses the word 'may' instead of 'shall,' it gives the council permission to hire legal advisers, but it is not mandatory that only the council have that power. It also states that only attorneys hired by the council serve under their discretion.
Cummings and Oakes obtained Seymour, who sent the April 30 tort claim notice to the city. The notice is the first step required before filing a lawsuit, which needs to be filed within 180 days.
As of Wednesday morning, Cummings had not heard from her attorney and has not made any decision whether to move forward with a lawsuit.
'They refused to even get legal advice until I forced them to,' Cummings said of the council. 'How sad is that? (The lawsuit) was the only way to get them to address this.'
By placing the issue of hiring an in-house attorney on the Monday agenda, the council will be 'curing' any violations it might have made, according to Jacobs. The item is under 'business from city council' and the council can then decide whether it will accept public comment on the issue. Cummings stated the item appears vague on the city agenda and the standard 10 days of notice was not adhered to.
'This is just gamesmanship on their part,' she said.
According to Assistant City Manager Kirsten Wyatt, the city's attorney fees accrued so far in dealing with this issue are between $3,000 and $5,000.