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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 />disagreement between the manager and council. He continued to hear in the conversation that the attorney <br />was doing what the manager wanted him to do rather than what the council wanted him to do. If there was a <br />disagreement or fundamental lack of trust between council as a body and the manager or individual <br />councilors and the manager the council needed to deal with that one a one-on-one basis. He thought the <br />attorney was rendering the best opinions he could based on the questions he was asked. <br /> <br />City Manager Taylor suggested that direction by a council majority would give him direction to seek a <br />second opinion. <br /> <br />Mr. Clark believed that the issue was not what the attorney thought but what the courts thought and how <br />good the attorney was at anticipating the court’s thoughts. He thought that could be easily tabulated with a <br />look at the firm’s success rate in court. Mr. Klein said it was not merely a matter of tabulating success as <br />the cases that went to court were generally more problematic in terms of who was right and wrong. He <br />could not claim a 100 percent success rate. <br /> <br />Ms. Bettman said the law was a question of interpretation or there would be no need for lawyers. One could <br />construe a legal issue in many different ways, and in some cases it might behoove the council to look at all <br />those ways as interpreted by reputable experts, including its own, and then make a decision that was best for <br />the public. With regard to second opinions, Ms. Bettman suggested the council could direct the City <br />Manager to seek a second opinion or could direct the manager to issue a Request for Qualifications (RFQ) <br />and return with a list of qualified legal firms from which the council could request more than one second <br />opinion. There were many ways the council could seek a second opinion. The council could bring second <br />opinions into a discussion if there were precedents set through the League of Oregon Cities or other cities <br />that had experienced similar litigation. Those were credible legal opinions that should be considered along <br />with that of the City Attorney. She did not object to the recommended way of seeking a second opinion but <br />it was not the only way. In addition, she thought that approach would take the City Manager and the <br />politics out of the situation. <br /> <br />Mr. Klein agreed that was not the only way, but he did disagree that the City Council could use an RFQ <br />process. He said the Request for Proposals process mentioned by Ms. Bettman was different from hiring an <br />attorney. Under public contracting law related to property and the urban renewal agency, the council had <br />authority to select the developers. Under the charter, authority was given to the manager to select <br />contractors and employees. He did not think the council could choose the attorney that provided a second <br />opinion. <br /> <br />Ms. Solomon had no objection to the discussion but was not hearing any agreement about how a second <br />opinion should be sought. She thought such opinions should be sought by the entire council, and not by a <br />select few councilors reading second opinions behind closed doors. She asked if other councilors interpreted <br /> <br /> <br />MINUTES—Eugene City Council April 9, 2007 Page 11 <br /> Work Session <br /> <br />