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Sharply
divided between support for and opposition to the stance taken
by County Attorney Timothy Mullaney and the Law Department and,
by implication, the Gordon administration, the lawmakers quickly
took up on a somewhat surprising suggestion by Sherry Freebery,
the county's chief administrative officer and second-ranking
person in the administration, to let the issue rest for awhile.
When
Richard Korn, the Hockessin resident whose citizen's lawsuit
challenging the practice of going outside the Law Department to
obtain legal help sparked the controversy, endorsed Freebery's
suggestion -- an even more surprising turn of events since what
could be considered 'his side' appeared to be winning --
Councilwoman Karen Venezky interrupted his testimony at the
session on May 25 and moved to table the department-drafted
ordinance she was sponsoring.
Her
motion carried by a four-to-three margin. Coons and Councilmen
Penrose Hollins and Robert Weiner voted against it, but Venezky
was joined by Councilman Robert Woods, who had put forth the
most vehement support for the ordinance, Councilwoman Patty
Powell and Councilman William Tansey.
Powell's
was the swing vote. After sitting quietly through a long
discussion of the ordinance during a finance committee meeting
earlier in the day, she had declared that she would vote against
it in its then-present form. That would have resulted in its
defeat.
Tabling
happened after Venezky had amended her ordinance twice -- to
require the law department to include Council in the
notification it routinely gives the administrative officer
whenever it intends to go outside to hire a lawyer and to
eliminate from its provision covering the transfer of money to
pay outside lawyers a reference which the department said could
be misconstrued when used as legal terminology.
At that
point in the proceedings, Council was officially debating an
amendment offered by Coons which he said would allow Council "to
accomplish our oversight role" without hamstringing the county
attorney's freedom to use professional judgment in deciding when
to seek outside help or shape legal strategy.
The
amendment would have substituted a requirement that, in addition
to the advanced notification provision Venezky had added, the
county attorney would have to seek Council approval to continue
using outside lawyers when fees for their services in a given
case reached $50,000 and again at increments of $100,000.
Approval would be by simple resolution and Coons noted that
Council very rarely turns down such spending resolutions.
Without
that amendment, Venezky's ordinance would 'clarify' the present
law by specifically exempting contracts for legal services from
an apparent requirement that, like contracts for other
professional services not subject to competitive bidding, they
receive Council approval when their costs reach or 'approach'
the $50,000 level. The exemption would apply only when the
lawyers were hired to represent county department and offices in
civil actions.
Coons,
Hollins and Weiner contended that would take away Council's
authority over the spending of public money. Mullaney testified
that it would only codify what has been accepted practice going
back through the tenures of five previous county attorneys to
1988. In all that time, he said, the Law Department never sought
Council approval because it interpreted existing law as having
separate sections governing contracts for professional legal
services and for other professional services. Only the latter
provision calls for Council approval.
If
Council thought it had approval authority, Mullaney maintained,
it never sought to exercise that authority. "To say that was
what we did in the past is not to say that what we did was
correct or legal," Weiner replied.
Coons
said he amendment was "not an attempt to invalidate actions of
the past" and would apply only to what happens after the
ordinance is adopted. A stipulation in Venezky's tabling motion
postpones the possibility of that happening before July 13 and
Coons now thinks it could be later.
As only
Delaforum previously reported, the issue came up at a Court of
Chancery hearing on a bid by Korn, his co-plaintiff Jerry Martin
and their lawyer, Richard Abbott, to obtain a preliminary
injunction barring the county from hiring outside attorneys
pending resolution of their civil suit. Chancellor William
Chandler acknowledged that there may be some ambiguity in the
current law but, in an oral decision rejecting the injunction
request, said he read the two provisions in question as not
mutually exclusive and both applying to contracts for legal
services.
Mullaney
and lawyer C.J. Seitz, an outside attorney representing the
county in Korn-Martin lawsuit, said the attempt to restrict the
county from hiring outside lawyers was a thinly-veiled attempt
by Abbott to disqualify lawyers who have been successful in
defending several lawsuits brought by developer Frank Acierno
against the county.
"The
reason we're here is because of a land developer [who has filed]
three motions to disqualify our law firm from representing the
county ... because we're winning," Seitz testified. "Maybe
somebody doesn't like them (outside attorneys) doing a good
job." Seitz is employed by the Connolly, Bove,
Lodge & Hutz law firm.
Freebery
testified that the county, during the nearly eight years the
Gordon administration has been in office, has spent about $4
million on legal fees. "More than half of that has been to fight
Mr. Acierno," she said. "I would not like to see this Council
give him his first win." Neither Acierno, Abbott nor Martin
attended the Council session.
Freebery
pointedly told Council that the issue at hand "has nothing to do
with the situation the county executive (Tom Gordon) and I are
in." Those officials and others presumably remain the objects of
a corruption investigation by U.S. Attorney Colm Connolly.
Somewhat ironically, the investigation reportedly stemmed from
having county employees campaign against Abbott, then a member
of County Council seeking re-election, in a Republican primary
election in September, 2002. Gordon and Freebery are Democrats.
Coons and
Freebery are both seeking the Democratic nomination to run to
succeed Gordon. Hollins is seeking the Democratic nomination to
succeed Coons as president of Council. Incumbent Council members
do not face election this year. Weiner and Tansey are
Republicans; Powell, Venezky and Woods are Democrats.
Freebery's argument for tabling Venezky's ordinance cited the
Korn-Martin suit. "Because we're in litigation, table it," she
said. Having gone through some parliamentary posturing -- which
itself is usual with County Council -- passage of the ordinance
with Coons's amendment attached, she said, would be "hurried
legislation." Coons, who is a lawyer, and Council's attorney,
Carol Dulin, drafted the amendment during the hour between the
end of the finance committee meeting and the Council session.
Herb
Feuerhake, who identified himself as a trial lawyer but said he
was speaking as a 'concerned citizen', in testimony following
hers, advocated passage. "A group of people are trying to
prevent sunshine. ... You have to look carefully at their
motives," he said.
Korn then
took the witness stand and urged tabling to provide
"opportunities for a proper debate among the people of the
county."
At the
point, Venezky moved to table and Woods seconded her motion.
Hollins
rose to speak against tabling. "If we table this to an uncertain
date, we're going to involve ourselves in more politics than we
want to be," he said.
Venezky
asserted her parliamentary right to have a tabling motion voted
on without debate, but took up Hollins's point and added a time
limitation. She initially set that at June 22, but later
extended it until July 13 when Powell advised that she will not
be present at either the June 8 or June 22 session.
Coons
later told Delaforum: "I am struck that passing this ordinance
was initially presented as 'urgent' and had to be done as soon
as possible, but once a majority of Council showed a willingness
to vote for my amendment to insert regular council fiscal
oversight, both [administrative officer] Freebery and County
Attorney Mullaney urged delay and full public debate and now the
matter can not only be delayed, but delayed for months."
The
urgency apparently stemmed from a claim by Mullaney that
Chancellor Chandler needed clarification of the existing
ordinance. Seitz indicated to Delaforum that the judge's
receiving that could lead to a quick resolution of the Korn-Martin
suit. Mullaney and Seitz on May 18 briefed Council's executive
committee in executive session behind closed doors. All Council
committees are comprised of all seven Council members.
At the
preliminary-injunction hearing, however, Chandler appeared more
interested in having Seitz invite Council's participation in the
suit in connection with his argument -- raised, but not further
discussed at the hearing -- that requiring the Law Department to
receive Council approval violated the constitutional doctrine of
separation of executive and legislative powers. That point was
not raised at Council's session although Weiner did refer to
Council oversight of Law Department spending as an example of
"exercising our obligation to [provide] a check and balance on
this type of expenditure."
Whether
the six-week delay will result in a more carefully crafted
ordinance remains to be seen, but observers speculated that it
was apt to cool some emotions, which ran uncharacteristically
high in both directions at both the finance committee meeting
and the Council session.
Woods was
especially strong in asserting that Council did not have the
expertise to judge the appropriateness of Law Department
strategy. "What are we supposed to do -- all go out and get law
degrees?" he asked rhetorically. "How else are we going to be
able to decide whether to continue with [a] case? ... What are
the criteria this Council or some future Council is going to use
to determine whether to move forward? ... I don't know how the
judgments will be made; they will all become political. How are
we going to explain them to the pubic? ... I don't want to
micromanage the Law Department."
"At some
point (in reviewing department spending) are we saying, 'We
surrender'?" Tansey asked. That held an implication that Council
might halt work on a pending case rather than authorize
additional spending. "No one is suggesting that when we hit
$50,000 we'll give up," Coons replied
Coons
said he was chagrinned at implications that "I'm out to shackle
the Law Department" adding that he "cannot think of a single
contract (authorizing purchases of goods or services) that we
didn't approve in the four years I've been here." He said his
proposal "does not send any message of disrespect or lack of
support" of past or present Law Department activities.
Hollins
said he "can't believe New Castle County is so unique that we
are the only county in the country that shouldn't have
oversight" over outside spending.
Freebery
told Council that, if it enacted Coons's version of the
ordinance, "you [would be] telling 350 uniformed police officers
that you are indemnifying them up to $50,000 and then cutting
them off. ... Many county employees have their futures at stake
here."
"I'm
sitting here wondering what it is we're trying to fix," said
Charles Baker, general manager of the Department of Land Use,
who described the debate as "depressing and discouraging." He
implied that Council would be impugning his and his department's
professional judgment "when we call in the Law Department to
help us enforce the laws that you want us to enforce."
"The Law
Department hasn't done anything that has been interpreted by the
last five county attorneys as being wrong," Mullaney said. "I'm
not sure what you want. ... Do you want me to shift my Law
Department over here and let County Council be the county
attorney?"
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