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HomeMy WebLinkAboutCC Minutes - 04/09/07 Work Session M I N U T E S Eugene City Council Work Session McNutt Room—Eugene City Hall April 9, 2007 5:30 p.m. COUNCILORS PRESENT: Andrea Ortiz, Chris Pryor, Betty Taylor, Bonny Bettman, George Poling, Jennifer Solomon, Mike Clark, Alan Zelenka. Her Honor Mayor Kitty Piercy called the meeting of the Eugene City Council to order. A. COMMITTEE REPORTS AND ITEMS OF INTEREST FROM MAYOR, CITY COUNCIL, AND CITY MANAGER Mayor Piercy reported that the road backlog issue was a statewide issue on which the Lane Council of Governments (LCOG) had been working. LCOG was seeking State resources in support of all communi- ties’ backlog of road repair. Mayor Piercy called the council’s attention to the US Mayor’s Newsletter in which Eugene received much recognition for its sustainability and livability work. She recognized Lynne Eichner Kelley for providing the information upon which the article was based. Mayor Piercy noted the community’s receipt of the Parks and Open Space (POS) newsletter reporting on the outcome of the 1998 parks and open space bond measure. Mayor Piercy noted the next day was Law Enforcement Day. She recognized the work of local law enforcement personnel. Mayor Piercy acknowledged community concern about the sewer pipeline through the wetlands and anticipated the council would discuss the issue. Mr. Pryor said the Human Services Commission (HSC) had met earlier that day to discuss its budget but there was great uncertainty about the amount to be received, so two versions were being prepared. One version would reflect a worst case scenario where about $500,000 would be cut, having a devastating impact on human services. He made it clear to HSC staff that if it wished to approach the two cities for funding, it needed to do that soon and not expect the cities to make it whole. Mr. Pryor said the West Eugene Study Group working on transportation solutions on the west side was evolving into a group with a collaborative/recommendation role to the City and attempting to recruit more members. He and the mayor were attending. He thought it a good group with good diversity. Mr. Pryor announced that Council Committee on Transportation was unlikely to be able to report to the council by the end of April as he previously hoped, and suggested that date might be pushed back. He MINUTES—Eugene City Council April 9, 2007 Page 1 Work Session thought it a good compromise because the committee was making good progress and he preferred a quality product to a fast product. Ms. Taylor thought it would be good if the committee on transportation alerted the council to what it was thinking of prior to forwarding its recommendations. Ms. Taylor reported that she had attended several meetings of the Council Committee on Intergovernmental Relations (CCIGR) and a Lane Regional Air Protection Agency (LRAPA) meeting over the council break. She said that LRAPA was beginning its strategic planning effort. She noted the council’s receipt of the CCIGR’s minutes. Ms. Taylor said she was also receiving many complaints, comments, and inquiries about the sewer pipeline, as well as calls about burglaries in south Eugene, where residents did not feel they received enough attention. Ms. Taylor congratulated Mayor Piercy for her presentation at the City Club and for a good response to questions. Ms. Bettman noted her opposition to the public safety income tax as originally construed, although she supported adequate funding for public safety and would like to have seen a more defensible ballot measure. Ms. Bettman wanted to publicly state her opposition to the recall effort directed at Lane County Commis- sioner Bobby Green and said it was a misapplication of the recall processes. She asked people not to sign the petition and said if sufficient signatures were gathered she would oppose the recall. Ms. Bettman referred to the recently released public safety liability management report and recalled that the City Manager and Police Chief promised a complete investigation; the report was not that investigation. It was a very limited examination of the evidence associated with the criminal investigation. She suggested that the responsibility to pursue a complete investigation lay with the council. While she was not prepared to place a motion on the table now, she wanted the council to think about it. Mr. Poling thanked Ms. Bettman for her comments about Commissioner Green and said he supported them. He also expressed appreciation to commissioners Faye Stewart and Bill Dwyer, who made a difficult decision regarding the future of the county. He hoped there was no recall attempt directed at them and would continue to support them if one was attempted. Mr. Poling announced that the public hearing for the Metropolitan Wastewater Management Commission fiscal year 2008 budget would occur on April 19, 2007, at 7:30 a.m. at Springfield City Hall. Responding to a question from Mr. Poling about the scheduling of the rental housing ordinance update, City Manager Dennis Taylor believed the work session had been scheduled for June 13. Mr. Poling commended the work of Michelle Mortenson, the City’s public service officer, who was the subject of an article in The Register-Guard earlier that day. Mr. Poling also recognized the work of Council Coordinator Lynda Rose, who was leaving her position to take on new challenges. Ms. Solomon noted her participation on a Public Safety Coordinating Council subcommittee on youth that was taking on the project of completing a systemwide map. Eugene Police Chief Bob Lehner was chairing the subcommittee. She thought the map would be a useful tool for the allocation of public safety resources. MINUTES—Eugene City Council April 9, 2007 Page 2 Work Session Ms. Solomon noted the recent Housing Policy Board meeting, at which bills related to manufactured housing were discussed. Ms. Solomon noted her meeting with representatives of the Ash Institute of Kennedy School of Government of Harvard University. Eugene was one of fifty finalists and one of the three finalists in the affordable housing category for which it had applied, for its landbanking program. She looked forward to hearing the results of the application. Mr. Clark agreed with the remarks of Ms. Bettman and Mr. Poling with regard to Commissioner Green and the other commissioners, saying it was the wrong tool to express the sentiments that voters felt. He thought a recall a bad idea and suggested that people use elections to express their sentiments instead. Mr. Clark said he attended a board meeting of the Convention and Visitors Association of Lane County at which the mayor spoke on sustainability. He also attended his first Human Rights Commission meeting and asked the council on the commission’s behalf to keep the date of November 9 free for a human rights conference scheduled to occur in Eugene. He noted absences on the commission’s Education and Outreach Committee and encouraged people to contact him for information about serving on that or other commission committees. Mr. Clark said he met with Dave Briggs, the executive director of the YMCA, and discussed the Santa Clara area’s long-expressed interest in a community center in that area. He suggested the idea of partnering with the YMCA to provide such a center in the area at a time when the City might not be able to do so, and discussions were underway. He would update the council as those discussions progressed. Mr. Zelenka agreed with the remarks of other councilors regarding the commissioners who voted for the public safety income tax, saying they had shown leadership and the recall was not the tool to be used in the case of political disagreement. He concurred with Mr. Clark that the correct approach was the ballot box. Mr. Zelenka also commended the work of Ms. Mortenson and expressed his regret about Ms. Rose’s departure. Mr. Zelenka was disappointed in the Civic Stadium court decision that awarded the future of Civic Stadium to Eugene School District 4J rather than to the City of Eugene and suggested that there were other venues through which the stadium could be maintained in that status. Mr. Zelenka said that the Council Committee on Transportation was making progress toward a recommen- dation to the council and would soon put together a package of solutions and report on its progress to the council. He thought if the committee could come together to support such a package, so could all of Eugene. He assured the public that the council was putting hundreds of hours into the subject of transporta- tion, as opposed to the single hour the council spent discussing the resolution regarding the Iraq war. th Mr. Zelenka noted his receipt on behalf of the Mayor of the City’s 28 Tree City Foundation award and th reported on the tree planting that took place near Willamette Street and 16 Avenue. He hoped the flag the City received from the foundation could be displayed, adding he would like to see all 28 displayed. Ms. Ortiz said she met with some neighbors of Jacobs Landing interested in seeing a crosswalk near that development. MINUTES—Eugene City Council April 9, 2007 Page 3 Work Session Ms. Ortiz indicated she would ask the council to support a one-day training in May to take advantage of the Lee Mu Nuah fact that , a renowned facilitator, was coming to Eugene to work with the School District 4J that month. Ms. Ortiz reported she would be attending an upcoming police training on the use of force the following week. Ms. Ortiz agreed with Mr. Pryor that the HSC budget picture was very somber. She expressed appreciation to the Board of County Commissioners for the leadership it had shown. City Manager Taylor said a lot of work had been done preparing for the April 25 council meeting on downtown development. He noted that the time set aside for the public hearing on April 16 was available due to a lack of public hearings, and the mayor and he arranged for a public workshop of individuals to discuss downtown challenges. He anticipated a good, broad-based panel. City Manager Taylor said that several bills related to annexation were introduced, and on the recommenda- tion of Intergovernmental Relations Manager Brenda Wilson, time was set aside at the Wednesday meeting for more discussion of that topic. City Manager Taylor said he viewed five of the Beam and KWG projects in the Portland area and thought a tremendous experience to see that work firsthand. The companies offered to be available on April 21-22 to conduct the council on a similar tour. Mayor Piercy pointed out that April 21 was Earth Day, which created a conflict for many councilors. Ms. Bettman thanked staff for completing the improvements associated with the Farmers Market prior to the opening of the market. She thanked the council for its financial support. Ms. Taylor agreed, saying the market had more space for walking. Ms. Taylor agreed with Ms. Bettman about the consultant’s report. She thought it up to the council to ensure something more happened. Mr. Clark congratulated staff for its receipt of the Innovation in Government award. B. WORK SESSION: Ordinance Concerning Eminent Domain—Two Parcels Adjacent to Madison Middle School for Community Park Purposes The council was joined for the item by Parks and Open Space Manager Johnny Medlin. Mr. Medlin provided a brief update, reminding the council it had been trying to develop a community scale park in the Santa Clara area for ten years. He voiced his support for the City’s “willing seller” approach. However, the City had been unable to find willing sellers in the area. Staff determined that two parcels adjacent to Madison Middle School would be an appropriate site. Since the council directed staff to prepare a condemnation ordinance for its review, staff continued discussion with the property owners and still had no willing seller. However, staff was not recommending the council move forward with eminent domain at this time pending the outcome of a Ballot Measure 37 claim related to one parcel and the legislation being considered by the current legislature. Mr. Medlin said the other property is under dispute with regard to MINUTES—Eugene City Council April 9, 2007 Page 4 Work Session ownership, and the City was not sure who owned the property. One of the claimants maybe a willing seller; the other was not. It did not appear either parcel would change use in the near term. Mayor Piercy believed the legislature was intent on completing its work by mid-June, and asked when the item would be rescheduled. Mr. Medlin said staff had not discussed that. He thought it was the council’s decision. Mayor Piercy solicited council comments and questions. Ms. Bettman asked what legislative action was contemplated. City Attorney Glenn Klein indicated there was a committee looking at a possible rewrite of Ballot Measure 37. If the legislature referred such a measure, the measure would be revised in a way that reduced the types of claims that could be filed, which would possibly have an effect on the property with a potential Ballot Measure 37 claim. Ms. Bettman asked what would happen if the legislature failed to take action. Mr. Klein said the dispute with the property owner would remain as it was today. Ms. Bettman asked if there was a disadvantage to adopting the ordinance to make the City’s position clear while awaiting the resolution of the issues identified. Mr. Medlin said that it placed a different tone on the negotiations. There might also be Ballot Measure 39 issues. Mr. Klein said that because the property would be acquired for public use, he did not think there would be a problem with Ballot Measure 39. He agreed with Mr. Medlin the tone of negotiations could be affected. Ms. Bettman asked where the money intended for the acquisition was, if it was collecting interest, and if so, how much was it and where did it go. Mr. Medlin said the amount in question was originally larger and nearer to $1 million, but the costs of working on the acquisition were charged against the capital account for the acquisition, currently leaving only about $900,000. Ms. Bettman suggested that was an argument in favor of moving expeditiously. Mr. Poling hoped that until the legal issues were resolved with regard to both parcels, the City continued to negotiate in good faith and not use the hammer of eminent domain unless it became absolutely necessary. He asked why the work session was scheduled, as he felt a memorandum updating the council would have been sufficient. He did not see the council being able to take action. City Manager Taylor said former Councilor Gary Papé had been interested in the topic and advocated for the work session. He agreed that the discussion was premature. He thought the delay would give the City the opportunity to have a better working relationship with the owners after the outstanding disputes about the one property were resolved. Ms. Taylor asked about the current use of the land. Mr. Medlin said one was zoned for Exclusive Farm Use (EFU) and the other was rural residential (RR). Ms. Taylor asked if the residents of Santa Clara wanted the City to acquire the property in question. Mr. Medlin said the active residents with whom the City had worked were in support of the acquisition. Ms. Taylor thought the land in question quite distant from most of the people living in the area. Mr. Medlin conceded the parcel was on the edge of the urban growth boundary but there was considerable residential development on three sides of it, as well as County residents living to the east. Ms. Taylor asked Mr. Klein why eminent domain for parks was different than for other properties. Mr. Klein said Oregon Revised Statutes Chapter 226 stated that when a government wanted to condemn land for parks, it must pass an ordinance; in other cases, the government may pass an ordinance or resolution with MINUTES—Eugene City Council April 9, 2007 Page 5 Work Session the legal description of the property. The City Charter also required a public hearing and 10 working days’ public notice of the hearing. Ms. Taylor asked how long eminent domain took to accomplish. Mr. Klein said the State law included a quick take process that took less time than the 12 to 18 months the legal process required. Ms. Taylor asked if the owners of the land could do something with the land in the meantime. Mr. Klein said yes. However, unless they were to self-finance, it would be difficult for the property owners to secure bank financing for development in the light of a condemnation trial. Responding to a question from Mr. Zelenka, Mr. Klein reviewed the elements of Ballot Measure 39. Mr. Zelenka observed that the measure made it much easier for those being condemned to receive attorney fees. Mr. Zelenka asked if the acquisition would require an urban growth boundary (UGB) expansion for the park to be developed. Mr. Medlin said that for the City to use the property for parks purposes, it would need to seek a conditional use permit for a change of use from Lane County or bring the property inside the UGB. In other words, the property could become a City park without expanding the UGB. Mr. Klein noted there were City parks outside the UGB but they were not community centers. If the park contained a community center providing urban service levels and requiring an urban level of services, it would probably have to come inside the UGB. Responding to a question from Mayor Piercy, Mr. Medlin said staff had not discussed either a UGB expansion or the conditional use process with Lane County. Mayor Piercy thought such discussions would be useful. Mr. Clark asked if there were uses on the property that could delay the City’s acquisition process. Mr. Klein did not think so. He said the property owner could attempt to create a use that increased the value of the property and made it more expensive for the City to acquire. If that occurred, and the City condemned the property, the fair market value of the development must be paid; however, that would not preclude condemnation. Mr. Clark recalled a discussion about an easement across the four parcels that go around the school and were between the Faver and McClay parcels. He asked if that was still part of the City’s long-term planning if both end parcels were acquired. Mr. Medlin thought if the City acquired both parcels it would have an interest in acquiring the southerly portion of those parcels in between. He did not think the City would seek an easement, but would instead seek to acquire the southerly portion of these parcels. Mr. Clark said that former councilor Papé had been interested in filling a promise he had made to residents of Ward 5 to see the park built, but he did not feel the same motivation of time and was not interested in tying staff’s hand or paying lawyers to fight battles that were more contentious than necessary. He wanted to hear a progress report regarding the acquisition by summer 2007. Ms. Bettman determined from Mr. Medlin that the middle school was an active school operated by School District 4J. She further determined from Mr. Medlin it would probably take at least five years to develop a community park. Ms. Bettman asked how long it would take to determine ownership of the parcel with disputed ownership. Mr. Medlin did not know. The parties involved were attempting to settle the dispute out of court. The City had tried to stay out of the conflict but let both parties know of its interest in buying the property. MINUTES—Eugene City Council April 9, 2007 Page 6 Work Session Ms. Bettman asked about the potential Ballot Measure 37 claim. Mr. Medlin was unsure of the basis of the claim. The City’s assessment was based on the current zoning and the property owner refused to sell it at the appraised price. He hoped for a better resolution from the legislature so the City could work with the property owner on the value. The property owner wanted to gain financially from the parcel and if the City could determine what was reasonable, he thought the property owner would accept it. Ms. Bettman was willing to defer to the councilors who served the area. However, she was troubled by the open-ended nature of the issue. There did not appear to be a plan on the part of staff for moving forward and she thought if the City took a definitive stand some of the outstanding issues might galvanize. She did not see any resolution in sight. Mr. Medlin emphasized the division’s interest in acquiring the properties but he believed any precipitous move would cost the City more rather than less. Speaking to the councilors from the area, Ms. Bettman suggested that they ask for the item to be brought back forward on a time-certain basis. Mr. Clark reiterated his interest in a progress report in July 2007 and suggested another work session could follow, perhaps in July or August. He determined from Mr. Medlin that there were no City resources available from the last bond measure to develop the park in the near-term. Mr. Medlin said that minor development such as grading and turf could occur before five years, but the structural features contem- plated, such as a pool, would likely require funding through a future bond measure. City Manager Taylor recalled that the council discussed a bond measure in 2008-2010 to address some of the recommendations from the Tier 1 and Tier II recommendations. He said that staff was pursuing the property as part of the City’s acquisition strategy to get a 40-acre footprint somewhere in the Santa Clara area. C. WORK SESSION: Who is the City Attorney’s Client? Obtaining Second Opinions on Legal Matters City Attorney Klein was present for the item. He provided an overview of the topic, noting that the rules governing the question of who the lawyer’s client was were to be found in the Oregon Rules of Professional Conduct. The rules do not differentiate between in-house counsel and outside counsel and they do not differentiate between agencies or level of government. The rules were the same for both private and public entities. The rule stated that the lawyer’s client was the entity itself, not the president of the entity, the board of directors, the city manager, or the elected officials. Mr. Klein said the duty of the attorney was to represent the client as a whole in two roles, one as a legal advisor and one as a legal advocate. In the attorney’s role as legal advisor, it was the attorney’s duty to inform a client as to what the attorney believed the law was and what it required, what the risks were, and how the client could lawfully comply with those requirements and achieve an objective consistent with the law. As legal advisor, the attorney did not get direction as to what its advice should be from the client. City Attorney Klein said as legal advocate, the attorney’s role was different; at that time, it was to take the position articulated by the client and represent it or defend it in whatever venue necessary. MINUTES—Eugene City Council April 9, 2007 Page 7 Work Session Speaking to the issue of securing a second opinion, City Attorney Klein said that the council merely had to request a second opinion to receive one. Mr. Klein distributed a list of the clients his firm represented with potential legal conflicts with the City and a list of the conflict waivers the City Manager had signed going back to January 2004. Mayor Piercy called on the council for questions and comments. Ms. Bettman first commended the work of Mr. Klein’s firm and the attorneys who represented the City. She said they were knowledgeable and she would not hesitate to retain any of them privately. However, the context for the discussion was different. Ms. Bettman said she did not disagree with Mr. Klein’s remarks about the role of the attorney, but she found there were situations where she questioned if that was what was happening. She thought there were many variables that influenced the attorney’s advice in different contexts. Ms. Bettman said the City may not be getting a description of just what the law was. She had multiple examples of that which she doubted she would have time to offer. Regarding the issue of conflict of interest, Ms. Bettman said the council did not have sufficient votes of support to direct the City Manager to create an office of the attorney, but she continued to think it was an overarching issue and problem that the City contracted with a firm that was dependent on contracts with other clients that were adversarial to the City in cases of litigation. There had been situations where she thought that the City Attorney was not advocating aggressively enough for City interests because of fear it would alienate a client like Hynix, due to the work it did for the City. She said that statutes regarding conflict of interest existed just to avoid such a situation. Ms. Bettman asked if there was any State constitutional prohibition against the council obtaining a second legal opinion. Mr. Klein said there was nothing in the State constitution or State statute that governed the council; the question was what the charter allowed. Ms. Bettman asked if there was a charter prohibition. Mr. Klein said that the charter provided for powers to be granted the manager and the council; he saw nothing that prohibited the council from directing the manager to secure another opinion. Ms. Bettman asked if the council could direct the manager to follow a certain legal opinion. Mr. Klein did not think there was anything to preclude that, pointing out the council received opinions from a variety of lawyers all the time. There was nothing to preclude the council from liking something said by a lawyer and adopting it. What the council did not get if it took that approach was a legal defense on the reliance of counsel. He said that much of the firm’s advice was in the form of confidential legal memoranda because the City did not want those opinions to become ammunition for the City’s opponents. He said the council did not have to do what he said, but the council did not get the advice of counsel defense if relying on another attorney’s opinion. Mr. Pryor thought the Agenda Item Summary (AIS) regarding the topic was clear and he appreciated the points offered in it. He agreed with Mr. Klein’s remarks regarding who the client was. He said that professionals, regardless of whether they were accountants or lawyers, worked for the entity and take direction from the entity. He did not believe that he as an individual had the authority to give Mr. Klein direction. While he might not like the advice he received, he had never had reason to question the honesty, sincerity, or integrity of Mr. Klein’s opinions and advice. He thought the discussion important so that roles MINUTES—Eugene City Council April 9, 2007 Page 8 Work Session were clarified. He agreed about the value of second opinions and said that they should also be sought by the body rather than by an individual councilor. Responding to a question from Mayor Piercy, Mr. Klein said that the council might disagree with his advice and request that he prepare the most legal defensible position on the council’s behalf. He would do his best to defend that position, adding that such a situation had come up while he served as the attorney. Mr. Zelenka clarified with Mr. Klein that the entities on the list were current or past clients of the firm. He asked what would happen if the council disagreed with the manager’s grant of the waiver and believed a conflict existed. Mr. Klein said that he would have to think more about the council’s role in such waivers before offering any input. He said that the issue related to the charter and the powers of the manager and the council. Mr. Zelenka thought he saw a potential problem in that the council might not agree with a waiver. Mr. Clark concurred with Ms. Bettman about the high quality of the advice provided by the City Attorney’s Office. He observed that in the cases where there was a conflict and a waiver issued the council had not subsequently received unsound advice from the attorney. If a conflict waiver created unsound advice for the client, the council would deal with that but he saw no evidence of a problem and was unclear as to what the council was trying to fix. Mr. Poling agreed with the remarks of Mr. Pryor. Responding to a question from Mr. Poling about the council work session that occurred in 1991, Mr. Klein said that work session occurred because the council had questions about how conflicts should be handled and how they were handled. Nothing in State law had triggered the work session. The rules had not changed with regard to how conflicts and conflict waivers worked. Ms. Taylor said the council was not informed of the waivers granted and she suggested that might be a useful thing. With regard to second opinions, Mr. Klein indicated that the council could ask the manager to secure a second opinion but Ms. Taylor did not think that would work as the manager had the opinion he wanted. City Manager Taylor said that it was not a matter of what he wanted but a matter of what the City Attorney indicated was the law. Ms. Taylor said that the City Manager should not be the one asking for a second opinion. City Manager Taylor suggested that was where the charter created a dilemma for the council. Mr. Klein explained that the charter gave the manager the authority to employ the City Attorney. The council could direct the manager to secure a second opinion and could direct him to secure that opinion from outside Eugene to avoid the taint of legal advice from Eugene. Ms. Taylor asked about unpaid legal advice. Mr. Klein said that if individual councilors contacted an attorney for advice and shared that with the council, it was not forbidden. Ms. Taylor asked if the council could direct the manager to hire an in-house attorney. Mr. Klein said the council could not legally tell the manager to hire an in-house attorney. It could tell him to do so and even threaten to hold it against him during his evaluation but if he failed to do so he would not be violating the law. The City Council could ask the manager to hire an in-house attorney. Ms. Taylor determined from City Manager Taylor that the only way the council could establish an in-house attorney was through a change to the charter. MINUTES—Eugene City Council April 9, 2007 Page 9 Work Session 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 Responding to a question from Mr. Zelenka, Mr. Klein said that if he suggested to the council that there was a 30 percent possibility a court would rule in one way and the council decided to pursue that 30 percent possibility, it should do so, and his firm would write as defensible a position as it could. He would provide risk analysis in confidential memorandums or executive sessions so the information could not be used against the City. Mr. Pryor thought it interesting when people chose to disagree with a professional legal opinion as opposed to matters of interpretation and demanded another one, although he acknowledged people had the right to do so. What was implicit in the discussion and of concern to him was the triangulation between the City Manager, attorney, and council, and the potential the attorney could become involved in what really was a disagreement between the manager and council. He continued to hear in the conversation that the attorney was doing what the manager wanted him to do rather than what the council wanted him to do. If there was a disagreement or fundamental lack of trust between council as a body and the manager or individual councilors and the manager the council needed to deal with that one a one-on-one basis. He thought the attorney was rendering the best opinions he could based on the questions he was asked. City Manager Taylor suggested that direction by a council majority would give him direction to seek a second opinion. Mr. Clark believed that the issue was not what the attorney thought but what the courts thought and how good the attorney was at anticipating the court’s thoughts. He thought that could be easily tabulated with a look at the firm’s success rate in court. Mr. Klein said it was not merely a matter of tabulating success as the cases that went to court were generally more problematic in terms of who was right and wrong. He could not claim a 100 percent success rate. Ms. Bettman said the law was a question of interpretation or there would be no need for lawyers. One could construe a legal issue in many different ways, and in some cases it might behoove the council to look at all those ways as interpreted by reputable experts, including its own, and then make a decision that was best for the public. With regard to second opinions, Ms. Bettman suggested the council could direct the City Manager to seek a second opinion or could direct the manager to issue a Request for Qualifications (RFQ) and return with a list of qualified legal firms from which the council could request more than one second opinion. There were many ways the council could seek a second opinion. The council could bring second opinions into a discussion if there were precedents set through the League of Oregon Cities or other cities that had experienced similar litigation. Those were credible legal opinions that should be considered along with that of the City Attorney. She did not object to the recommended way of seeking a second opinion but it was not the only way. In addition, she thought that approach would take the City Manager and the politics out of the situation. Mr. Klein agreed that was not the only way, but he did disagree that the City Council could use an RFQ process. He said the Request for Proposals process mentioned by Ms. Bettman was different from hiring an attorney. Under public contracting law related to property and the urban renewal agency, the council had authority to select the developers. Under the charter, authority was given to the manager to select contractors and employees. He did not think the council could choose the attorney that provided a second opinion. Ms. Solomon had no objection to the discussion but was not hearing any agreement about how a second opinion should be sought. She thought such opinions should be sought by the entire council, and not by a select few councilors reading second opinions behind closed doors. She asked if other councilors interpreted MINUTES—Eugene City Council April 9, 2007 Page 11 Work Session the staff recommendation in the same way. Mayor Piercy suggested that was true of seeking a second opinion, but she interpreted Mr. Klein’s remarks as saying the council could get a second opinion but it would not have the standing of legal counsel. The council could get those opinions anytime it wanted and could decide whether to place credence in them based on their own individual analysis of the situation. Mr. Klein clarified that any councilor could go to his or her own lawyer or any lawyer for an opinion, which would be issued to the councilor but would not be paid for by the City. At that point, the opinion was a private document. Mayor Piercy concluded that individual councilors could seek such legal opinions and make them available to the council as part of the record. They would not be the official legal position of the council unless the council chooses to make them so. Ms. Bettman acknowledged the charter prohibition on council interference with hiring City employees, but pointed out that Mr. Klein was not a City employee. She said that it was a contracting issue, and if the City Council could give the manager specific direction about the contractor to be selected as the downtown developer, it could direct him with regard to the City Attorney, because he was a contractor, not an employee. She did not think Mr. Klein had provided an accurate representation of the existing situation. Mr. Klein said the charter provision that prohibited the council from interfering with the manager in the hiring and firing of personnel was broader than just personnel. Ms. Bettman said that was true with regard to individual councilors, not the council as a body. Mr. Klein said that Section 16 of the charter granted the manger certain powers to do certain things, such as acting as business agent. The manager also has the power to choose the City’s contractors in most circumstances. He said he could provide more information if desired. Mayor Piercy expressed appreciation to Mr. Klein for his comments clarifying the role of the City Attorney. She believed it was important that the council be clear about what it did and did not support. That was the key to providing the manager with direction. Mayor Piercy adjourned the meeting at 7:23 p.m. Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Kimberly Young) MINUTES—Eugene City Council April 9, 2007 Page 12 Work Session