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That
could soon resolve an issue which has been vexing Council
for several months as a result of a taxpayer suit still pending
in Court of Chancery over whether taxpayer money can properly be
used to provide County Executive Thomas Gordon and chief
administrative officer Sherry Freebery with such representation
in connection with a federal investigation sparked by political
activity during the primary election last September.
The point
around which the suit revolves was the absence, until now, of
any reference in the county code to providing a lawyer during a
criminal investigation, as opposed to doing so after
charges are actually brought. Council has amended the law to
specify that an investigation also qualifies as a time an
employee is so entitled.
Although
Council members have questioned whether any further action on
their part is necessary, pressure from county workers and their
unions has prevented the issue from going away. A scheduled
discussion of the matter by Council's Executive Committee on
Feb. 4 drew a crowd of concerned employees, who remained to the
end, long past the committee's normal adjourning time.
George
Haggerty, assistant general manager of the Department of Land
Use, told the committee that uncertainty over where matters
stand vis-à-vis the cost of legal representation "has produced a
chilling effect" on the county workforce. Especially bothered
are police officers, paramedics, code enforcement personnel and
the like whose normal duties can require split-second decisions
later subject to intense scrutiny and legal challenge.
Councilwoman Patty Powell, who worked for the county for 39
years, said she and her co-workers "never had any fear in all
that time that [we] would not be represented" if the need arose.
Councilman William Tansey noted that the present form of
government dates to the 1960s and the issue did not arise until
now. "This is not the first indiscretion that has occurred," he
said. "Are we being overinfluenced by the situation that exists
today?"
Council
president Christopher Coons said that additional legislation
should specifically authorize the county attorney to provide for
in-house representation or approve in advance the hiring of
outside counsel at county expense. A further provision would
create a mechanism by which the county would be reimbursed if
the employee pleads or is found guilty of a criminal offense.
He
directed Carol Dulin, Council's lawyer, to prepare legislation
along those lines for introduction at the Feb. 11 session. Under
normal rules, that would permit passage of an ordinance as soon
as the Feb. 25 session.
There
already exists a preliminary draft of such legislation, which
was distributed to Council members before the Feb. 4 Executive
Committee meeting but not specifically discussed there. Coons
ruled that such conversation should not take place unless the
draft and related documents, which he described as "very
premature" and deemed confidential, were made public.
Councilwoman Karen Venezky called for and Coons agreed to a
"conceptual discussion" after Tansey strongly objected to
'releasing' the material before he and his colleagues have an
opportunity to digest its contents and reach a consensus. As it
happened, Tansey was the only Council member to refer something
in the draft during the discussion and Coons ruled him out of
order for doing so. All seven Council members also are members
of the Executive Committee.
That
parliamentary matter aside, there appeared to be no doubts among
the Council members that accused but not convicted employees are
entitled to legal representation, either by the county's Law
Department or outside counsel approved and authorized by the
department. An employee not satisfied with an in-house lawyer
who then hires a private one can appeal to Council for
reimbursement of legal fees if adjudged not guilty of a crime.
Council would have the authority to agree to or reject the
request, depending on circumstances. All those considerations
would apply also to the investigatory phase of legal action.
Where
Council members seem to be divided was over what should be done
to assure recovery of money paid out if the employee is found
guilty or if the object of charges brought concerns something
not connected to a 'good faith' performance of job duties. Coons
suggested requiring the posting in advance of a surety bond, but
the practicality of obtaining such insurance at reasonable cost
was questioned.
Charles
Baker, general manager of the Department of Land Use, said the
extent of recovery should not be all-inclusive. He pointed out
that an investigation might be broadly conducted and of extended
duration but result in only a relatively minor charge arising
out of a limited portion of the investigation. In such a case,
he said, an employee should not have to repay money spent
throughout the entire investigation. He also said their is such
a thing as the inadvertent committing of an offense through
accident or oversight while otherwise acting properly in the
performance of complex duties.
Venezky
said an ordinance should provide employees with suitable legal
protection but be couched in terms which make clear that
"it is not an open pocket from which money flows without
review."
Council
member Robert Woods said the problem in drafting legislation of
this type is that it cannot possibly cover every specific set of
circumstances that could arise. He suggested that Council not
rush the law-making process until it has researched what
comparable jurisdictions do. "We're certainly not the only
government to have to address this issue," he said.
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