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Ms. Bettman noted that many of the documents she reviewed were confidential and she could not quote <br />them, but she did not have the legal framework for cities from the firm Harrang Long, and the last statement <br />under “how to use the attorney” was “Use the attorney’s advice or get a second opinion if you believe the <br />legal advice may be wrong and do not want to follow it.” <br /> <br />Ms. Bettman did not see anything in statute related to how to secure a second opinion and suggested there <br />were at least four ways the council could seek such an opinion without a charter amendment. She pointed <br />out that the council just told the manager to contact with one or two developers for downtown. <br /> <br />Mr. Zelenka also felt the advice given by the City Attorney was good, and determined from Mr. Klein the <br />firm had 35 to 40 employees located in Eugene, Salem, and Portland. <br /> <br />Mr. Zelenka was interested in having more clarity about second opinions. He asked what happened if a <br />second opinion differed from the attorney’s opinion. Mr. Klein suggested that the answer depended on what <br />the council wanted to do and the reason for the second opinion. Where the courts stated that the advice of <br />counsel could be relied upon, it was generally in regard to general counsel. If the council liked the second <br />opinion, it could follow it. <br /> <br />Mr. Zelenka suggested that in situations where no case law existed to provide guidance it became a matter of <br />interpretation and opinion, and there was a wide variety of opinion on the council and among attorneys. He <br />thought that was where the council needed clarity. He posited a situation in which the council directed the <br />manager to seek a second opinion and it differed from the first opinion, saying “then what?” Mr. Klein <br />suggested the answer depended on what the council wanted to do and why it requested a second opinion. If <br />the council was trying to get a different opinion to be able to have the defensive advice of counsel, the <br />handful of court decisions that existed with regard to the liability of governing bodies and their reliance on <br />the advice of counsel spoke to an entity’s general counsel. He thought there had been very few City <br />Attorney opinions related to possible personal liability, and hundreds of opinions that did not speak to the <br />issue at all. Mr. Klein suggested that if the council did not like the opinion provided by the City Attorney’s <br />Office and sought a second opinion that it preferred, it could follow the second opinion. <br /> <br />Mr. Klein said that when he offered an opinion, he tried to identify any ambiguities that existed, the existing <br />statutes and precedents, his interpretation, and suggested a certain percentage success rate. If an area was <br />unclear, a knowledgeable attorney would point that out. He said if the council decided against his advice he <br />would provide the council with the best defensible arguments he could. He thought the advantage of a <br />second opinion was that another attorney might suggest an argument he had not thought of, and if the <br />situation involved a decision so important to the council it was willing to pay for a second opinion, he <br />thought it worth the cost. He suggested in the case of a land use decision, the applicant could be the party <br />that bore the cost and the applicant’s attorney could provide the council with legal advice. <br /> <br />Responding to a question from Mr. Zelenka, Mr. Klein said that if he suggested to the council that there was <br />a 30 percent possibility a court would rule in one way and the council decided to pursue that 30 percent <br />possibility, it should do so, and his firm would write as defensible a position as it could. He would provide <br />risk analysis in confidential memorandums or executive sessions so the information could not be used <br />against the City. <br /> <br />Mr. Pryor thought it interesting when people chose to disagree with a professional legal opinion as opposed <br />to matters of interpretation and demanded another one, although he acknowledged people had the right to do <br />so. What was implicit in the discussion and of concern to him was the triangulation between the City <br />Manager, attorney, and council, and the potential the attorney could become involved in what really was a <br /> <br /> <br />MINUTES—Eugene City Council April 9, 2007 Page 10 <br /> Work Session <br />