CC Minutes - 04/09/07 Work Session

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Ms. Bettman observed that a past manager had signed waivers for Peace Health and Hyundai and asked if they were still clients. Mr. Klein said that Peace Health and Hyundai were once clients of his firm but he could not say they still were. He confirmed that Phillip Morris had been a client of the firm. Ms. Bettman determined from the City Manager Taylor that he granted a five-year contract extension for the City Attorney’s firm in 2004. She asked if anything in the contact precluded the City from using the services of another attorney. City Manager Taylor thought there was such a provision. Ms. Bettman noted that many of the documents she reviewed were confidential and she could not quote them, but she did have the legal framework for cities from the firm Harrang Long, and the last statement under “how to use the attorney” was “Use the attorney’s advice or get a second opinion if you believe the legal advice may be wrong and do not want to follow it.” Ms. Bettman did not see anything in statute related to how to secure a second opinion and suggested there were at least four ways the council could seek such an opinion without a charter amendment. She pointed out that the council just told the manager to contact with one or two developers for downtown. Mr. Zelenka also felt the advice given by the City Attorney was good, and determined from Mr. Klein the firm had 35 to 40 employees located in Eugene, Salem, and Portland. Mr. Zelenka was interested in having more clarity about second opinions. He asked what happened if a second opinion differed from the attorney’s opinion. Mr. Klein suggested that the answer depended on what the council wanted to do and the reason for the second opinion. Where the courts stated that the advice of counsel could be relied upon, it was generally in regard to general counsel. If the council liked the second opinion, it could follow it. Mr. Zelenka suggested that in situations where no case law existed to provide guidance it became a matter of interpretation and opinion, and there was a wide variety of opinion on the council and among attorneys. He thought that was where the council needed clarity. He posited a situation in which the council directed the manager to seek a second opinion and it differed from the first opinion, saying “then what?” Mr. Klein suggested the answer depended on what the council wanted to do and why it requested a second opinion. If the council was trying to get a different opinion to be able to have the defensive advice of counsel, the handful of court decisions that existed with regard to the liability of governing bodies and their reliance on the advice of counsel spoke to an entity’s general counsel. He thought there had been very few City Attorney opinions related to possible personal liability, and hundreds of opinions that did not speak to the issue at all. Mr. Klein suggested that if the council did not like the opinion provided by the City Attorney’s Office and sought a second opinion that it preferred, it could follow the second opinion. Mr. Klein said that when he offered an opinion, he tried to identify any ambiguities that existed, the existing statutes and precedents, his interpretation, and suggested a certain percentage success rate. If an area was unclear, a knowledgeable attorney would point that out. He said if the council decided against his advice he would provide the council with the best defensible arguments he could. He thought the advantage of a second opinion was that another attorney might suggest an argument he had not thought of, and if the situation involved a decision so important to the council it was willing to pay for a second opinion, he thought it worth the cost. He suggested in the case of a land use decision, the applicant could be the party that bore the cost and the applicant’s attorney could provide the council with legal advice. MINUTES—Eugene City Council April 9, 2007 Page 10 Work Session