Tuesday, October 22, 2013

Council stands united in fight for its own attorney

Posted By on Tue, Oct 22, 2013 at 2:16 PM

A long-simmering dispute between City Council and Mayor Steve Bach's administration is coming to a head.

On Tuesday, Council spent most of an hour in informal talks about how it plans to go about hiring its own outside legal counsel without interference from City Attorney Chris Melcher.

Melcher has repeatedly told Council it can't shop for an opinion different than his, and that the City Charter only allows Council to hire outside attorneys "to assist" the city attorney's office.
click to enlarge King: "We pass it. We override the veto." - COURTESY CITY OF COLORADO SPRINGS
  • Courtesy City of Colorado Springs
  • King: "We pass it. We override the veto."

But that advice isn't stopping Councilors from pushing for more authority to get an outside legal opinion. When discussing a two-page "Protocol for Retaining Counsel to Assist the City Attorney," even that heading was called into question. Councilor Helen Collins said she wants the document to simply state, "Protocol for Retaining Counsel."

Councilors have long complained that Melcher serves the mayor who appointed him at the expense of Council, which also is his client. They've said Melcher withholds information, drags his feet on research sought by Council, and always sides with the mayor when the mayor and Council are at odds.

Most notably, Council wants to investigate setting up a special district or authority to oversee stormwater management. Bach opposes that idea. But to see if such a district is possible, with all the attendant requirements Council wants to include — such as making any assessment or fee tax-deductible, just like property taxes — Council needs legal work done. So far, Melcher apparently hasn't delivered.

Noting the Charter's language about hiring counsel to assist Melcher, Councilor Joel Miller said, "The Charter says we can decide when he needs assistance. We get to say how he needs assistance. We think he needs assistance because we're not getting what we need from him." 

Miller also wants Council to have access to all of the outside attorney's work product, so it can determine if the outside attorney's opinion winds up ignored when Melcher issues his opinion. "That's the deliverable without Melcher intervening," he said. "All work product, to include a full opinion before it's vetted and it turns into the city attorney's legal opinion."

He also didn't like a part of the protocol, which was drafted by Melcher, that said, "Council will have a reasonable opportunity to attend and participate in meetings or conversations between 'other counsel' and the City Attorney's Office as the legal advice is discussed and researched."

Said Miller, "I don't feel comfortable with the word 'reasonable' with Chris Melcher."
click to enlarge Miller: Wants access to attorney's work product. - COURTESY CITY OF COLORADO SPRINGS
  • Courtesy City of Colorado Springs
  • Miller: Wants access to attorney's work product.

Councilor Val Snider said Melcher shouldn't have the power to cancel a meeting between Council members and outside attorneys, as he did during the oil and gas regulation debate last year.

Council President Keith King, who's mustered a unanimous Council behind the outside legal counsel maneuver, said, "In the end we have the right to choose our own lawyer. We appropriate money and put it into the budget. I don't think [Mayor Steve Bach] can block us. If this [protocol agreement] doesn't go, we put this into an ordinance. We pass it. We override the veto. We have the right to legislate under the Charter until told by a court we don't have that right."

Among changes informally agreed upon by Council on Tuesday are a requirement that Council spell out the reason for an engagement; a provision Council can meet with its chosen outside attorney "so they understand why we're hiring them" King said; and a clause giving Council authority to see all work product during the engagement.

Those changes will be made before the document is submitted to the administration for approval.

Council also discussed rules for confirming mayoral appointees, which currently aren't guided by any formal written process. In a four-page document, Council spells out timelines and information requirements it wants to impose on the mayor when he makes an appointment subject to confirmation, including those for city clerk, city attorney, police chief and fire chief.

Confirmation rules, slated for Council action in November, likely arose after Bach chose Dave Lethbridge as interim public works director although Lethbridge didn't apply for the job and didn't meet the posted job requirements, such as being a licensed engineer.

Here are both documents Council discussed during Tuesday's meeting: the protocol for hiring outside legal counsel and the proposed confirmation rules. 

Protocol_confirm_rules.pdf
 

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