Adventures In City Attorney Land-Part 1

In November, 2012,  Kelly Kautz, Snellville’s then newly-elected mayor, appointed a new City Attorney to replace Tony Powell, who had served in that capacity for approximately two years. Mr. Powell has over 25 years of experience in municipal law (also called local government law) and was awarded the highest possible rating by the Martindale-Hubbell Peer Review. Naturally, the departure of such a highly respected and extremely well-qualified attorney elicited numerous questions about the reasons for which he was dismissed.

I had heard rumblings that Mr. Powell would be replaced shortly after the election results were announced last November. Positive proof of his departure arrived at the November 14th Council meeting in the form of a new City Attorney, who was announced shortly after the swearing in of the new mayor and Council.

Subsequently, the Council learned that the mayor hadn’t actually fire Mr. Powell. She had asked him to serve as an assistant to the new City Attorney. That was a nice way of asking him to stick around long enough to get the new guy up to speed. Having been presented with an unworkable situation, (an attorney with 25+ years of municipal law experience “assisting” an attorney with absolutely no previous municipal law experience) Mr. Powell respectfully declined. He did, however, continue serving the City by concluding a number of open cases that had been initiated during his tenure.

There was absolutely no problem with Mr. Powell’s services. Although I never dealt with him as a City Council member, I did speak with him a number of times while I served on the Planning Commission. I always found him to be very knowledgeable, responsive and very willing to provide insight and guidance- many times without charge.

It is my belief that Mr. Powell’s replacement, Stuart Oberman, was hired strictly for political expediency. (If there’s another reason for replacing an experienced municipal attorney with one who has no prior municipal attorney experience, I’d like to hear it.) I also believe this is clearly demonstrated by the fact that Oberman charged the city $760 for work he had done PRIOR to being appointed City Attorney. (The specific work was to do research and prepare a memo regarding Mayor Pro Tem. After several members of Council objected to those charges, he subsequently removed them from his bill.)

Making matters even more suspect, a number of other opinions submitted by Oberman were flawed, (that’s warm-and-fuzzy-speak for wrong) and appear to have been written with an eye towards what was desired, rather than towards proper legal definition. Many of these opinions are referenced in the e-mails that can be viewed at www.snellvilletoday.com .

In late February, it appeared that Snellville’s not-so-excellent City Attorney adventure was over. Oberman resigned and Kevin Tallant of Miles Patterson Hansford Tallant, LLC was appointed as the new City Attorney. He is a highly experienced municipal law attorney with an impressive resume, and from my brief conversation with him, a firm grasp of the reality of serving as a City Attorney. But in spite of the fact that Mr. Tallant was every-bit-as qualified, competent and ethical as his resume indicated, the City’s Adventures in City Attorney Land weren’t over, as you learn in “Adventures in City Attorney Land, Part Deux”.

If you read “Adventures in City Attorney Land”, parts 1 and Deux, you’re probably wondering why you haven’t heard about the final resolution to Snellville’s “Not So Excellent Adventure”. The lack of information is a direct result of a lack of information– without notifying other members of Council, the mayor authorized payment in full of Stuart Oberman’s $30,000+ final bill. On the positive side, when taxpayers receive their next tax bill, they can rejoice in the fact that they financed an on-the-job City Attorney training program.

The mayor’s authority to authorize payment is not in question. For the past few months, there has been some debate over the authority granted by different sections of the city charter. But regardless of the authority that a particular section grants, the one section of the charter that in my opinion overrides all the others is 2.14 (a). That section states that elected officers shall act in a fiduciary capacity for the benefit of the city’s residents.

Like all other parts of the charter, the way that section 2.14 (a) should be implemented is open to interpretation. However, I can see no way that hiring a City Attorney with absolutely no previous municipal law experience, and paying him the same hourly rate as an attorney with over 25 years of experience serves the best interests of the citizens. It may serve the best interests of a few people, but certainly not the citizens (taxpayers) who ultimately shoulder the costs.

I can see no way that paying a city attorney $30,360 dollars for substandard services and flawed opinions serves the best interests of the citizens.

I can see no way that paying a bill behind the backs of the Council members who thought the charges were excessive and unjustified serves the best interests of the citizens.

So you can understand that several Council members were not pleased to learn that they were never informed that Stuart Oberman submitted his final bill for $30,360 dollars on March 3rd. Nor were we pleased to learn that the mayor had never informed Council members before taking it upon herself to authorize payment in full– knowing full well that a majority of Council members had objected to the poor quality of the work, and the amount being charged.

The reason that Oberman’s bills had not been paid for over three months was that many Council members felt his charges were outrageously high and should be reduced to reflect his lack of experience and flawed opinions. The disagreement was never whether or not the City should pay the bills, but the amount that should be paid. The taxpayers of this city paid for diamonds and received pieces of glass. I don’t think qualifies as serving their best interests.

Oberman had by his own admission absolutely no previous municipal law experience, and claimed that it didn’t matter because municipal law was like any other type of law. The mayor concurred with this assessment. Yet Kevin Tallant, the City Attorney who replaced Oberman, and Tony Powell, the previous City Attorney both state that municipal law is unique and requires specific education and experience if an attorney is to competently serve a city. (Every other attorney with whom I have spoken has echoed the opinions of Mr. Powell and Mr. Tallant.)

Oberman unabashedly charged for extensive research that many knowledgeable people feel would have been unnecessary if he had even a modicum of municipal law experience. He also charged the taxpayers for incorrect legal advice and opinions, then charged them again to correct his mistakes.

Much of this can be considered a judgment call, so I invite anyone with questions to review Oberman’s bills, which can be obtained through an open records request. If you would prefer a more personal approach, please feel free to contact me for a “guided tour”. Some of the highlights-

Nov. 29, 2011- Charges to “Review 2011 adoption of Ethics Code”, followed by: Dec. 29, 2011- “Prepare Memo-Code of Ethics”. In that memo, Oberman stated, “no code of ethics is contained within the charter” and, “No code of ethics is contained within the City of Snellville Code.” (If no code of ethics existed, how did Oberman review it on November 29th?)

Charges for a legal opinion that states the City cannot alter distances between school and churches and establishments that serve alcoholic beverages followed by charges for an opinion that states the City can change those distances.

Charges to review the “home run rule”

Had members of Council been involved in the decision to pay these charges, I can assure you the best interests of the taxpayers would have been served, and several thousand dollars would have been saved. Unfortunately, since we were never informed that the final bill had been received, we were never given to opportunity to negotiate a lower amount. The information about payment was revealed only after I called the City Manager on March 16th, and asked about the status of the outstanding city attorney charges.

It has been suggested that I’ve given this matter much more attention that it deserves. After all, it’s “only” $30,000, and had we negotiated, we would have saved only a few thousand dollars. I don’t consider “a few thousand dollars” to be chump change. Apparently, other people do.

Adventures in City Attorney Land, Part Deux

On March 12th, the Snellville City Council unanimously approved the City Attorney engagement letter of Kevin Tallant, a partner in the firm of Miles Patterson Hansford Tallant, LLC. The rapidity with which this action was taken (two weeks after he was appointed) and the universal agreement of all Council members has brought a different perspective to the controversy regarding the engagement letter of the previous (interim) attorney, which was never approved.

Many people thought that the “alpha dogs” on Council were simply trying to throw roadblocks in front of the mayor. In fact, as previously stated, a majority of Council members were simply of the opinion that Stuart Oberman not only lacked the proper qualifications to serve the best interests of the city, but that many of his charges were  excessive and unjustified. Some of those charges were for work performed prior both his appointment, and to new members of the Council being sworn into office. (Those charges were subsequently removed from his bill.). Based on the number of reversed opinions, unanswered questions and general lack of responsiveness, the opinions of a majority of Council members appear to be entirely justified. (For specific details, click the following link to read the actual e-mails between Council members and the City Attorney-  http://snellvilletoday.com/blog/2012/02/16/emails-shed-light-on-city-attorney-controversy/ )

In contrast, Mr. Tallant brought with him an impressive resume and a letter of engagement that detailed the specific services he would perform, (as opposed to schedule of fees with a few words sprinkled around). When asked for more definition about certain details regarding his services, Mr. Tallant responded almost immediately with relevant information. And his responsiveness and qualifications were very much in evidence during the first work session and public meeting he attended. Another encouraging sign-  to ensure that the City is properly served should he be unable to attend a meeting in the future, Mr. Tallant brought associate attorney Lauren Giles with him, so that she could learn about (some would say “experience”) the Council and its members first hand. The city was not charged for Ms. Giles time.

Looking to the future, I hope that much of the drama that characterized the past four months will be absent. That will probably disappoint some people, but I’m looking forward to being able to concentrate more on serving the interests of the citizens by taking positive steps, rather than by addressing problems that should have never existed.

More Adventures in City Attorney Land

If you read “Adventures in City Attorney Land”, parts 1 and Deux, you’re probably wondering why you haven’t heard about the final resolution to Snellville’s “Not So Excellent Adventure”. The lack of information is a direct result of a lack of information– without notifying other members of Council, the mayor authorized payment in full of Stuart Oberman’s $30,000+ final bill. On the positive side, when taxpayers receive their next tax bill, they can rejoice in the fact that they financed an on-the-job City Attorney training program.

The mayor’s authority to authorize payment is not in question. For the past few months, there has been some debate over the authority granted by different sections of the city charter. But regardless of the authority that a particular section grants, the one section of the charter that in my opinion overrides all the others is 2.14 (a). That section states that elected officers shall act in a fiduciary capacity for the benefit of the city’s residents.

Like all other parts of the charter, the way that section 2.14 (a) should be implemented is open to interpretation. However, I can see no way that hiring a City Attorney with absolutely no previous municipal law experience, and paying him the same hourly rate as an attorney with over 25 years of experience serves the best interests of the citizens. It may serve the best interests of a few people, but certainly not the citizens (taxpayers) who ultimately shoulder the costs.

I can see no way that paying a city attorney $30,360 dollars for substandard services and flawed opinions serves the best interests of the citizens.

I can see no way that paying a bill behind the backs of the Council members who thought the charges were excessive and unjustified serves the best interests of the citizens.

So you can understand that several Council members were not pleased to learn that they were never informed that Stuart Oberman submitted his final bill for $30,360 dollars on March 3rd. Nor were we pleased to learn that the mayor had never informed Council members before taking it upon herself to authorize payment in full– knowing full well that a majority of Council members had objected to the poor quality of the work, and the amount being charged.

The reason that Oberman’s bills had not been paid for over three months was that many Council members felt his charges were outrageously high and should be reduced to reflect his lack of experience and flawed opinions. The disagreement was never whether or not the City should pay the bills, but the amount that should be paid. The taxpayers of this city paid for diamonds and received pieces of glass. I don’t think qualifies as serving their best interests.

Oberman had by his own admission absolutely no previous municipal law experience, and claimed that it didn’t matter because municipal law was like any other type of law. The mayor concurred with this assessment. Yet Kevin Tallant, the City Attorney who replaced Oberman, and Tony Powell, the previous City Attorney both state that municipal law is unique and requires specific education and experience if an attorney is to competently serve a city. (Every other attorney with whom I have spoken has echoed the opinions of Mr. Powell and Mr. Tallant.)

Oberman unabashedly charged for extensive research that many knowledgeable people feel would have been unnecessary if he had even a modicum of municipal law experience. He also charged the taxpayers for incorrect legal advice and opinions, then charged them again to correct his mistakes.

Much of this can be considered a judgment call, so I invite anyone with questions to review Oberman’s bills, which can be obtained through an open records request. If you would prefer a more personal approach, please feel free to contact me for a “guided tour”. Some of the highlights-

Nov. 29, 2011- Charges to “Review 2011 adoption of Ethics Code”, followed by: Dec. 29, 2011- “Prepare Memo-Code of Ethics”. In that memo, Oberman stated, “no code of ethics is contained within the charter” and, “No code of ethics is contained within the City of Snellville Code.” (If no code of ethics existed, how did Oberman review it on November 29th?)

Charges for a legal opinion that states the City cannot alter distances between school and churches and establishments that serve alcoholic beverages followed by charges for an opinion that states the City can change those distances.

Charges to review the “home run rule”

Had members of Council been involved in the decision to pay these charges, I can assure you the best interests of the taxpayers would have been served, and several thousand dollars would have been saved. Unfortunately, since we were never informed that the final bill had been received, we were never given to opportunity to negotiate a lower amount. The information about payment was revealed only after I called the City Manager on March 16^th, and asked about the status of the outstanding city attorney charges.

It has been suggested that I’ve given this matter much more attention that it deserves. After all, it’s “only” $30,000, and had we negotiated, we would have saved only a few thousand dollars. I don’t consider “a few thousand dollars” to be chump change. Apparently, other people do.

And Still More Adventures in City Attorney Land

In spite of rumors to the contrary, there are no plans to install a revolving door at Snellville City Hall. However, it has been reported that the revolving doors at area restaurants are now being referred to as “Attorney Doors”.

As you might suspect, the chatter about revolving doors and members of the legal profession was initiated by the recent City Attorney drama that has unfolded in Snellville. With its soap opera overtones, this drama might well be called, “As The Attorney Turns”, or “All My Attorneys”.

The season premier began last November when Kelly Kautz became mayor and immediately fired then City Attorney Tony Powell. Considering that Mr. Powell has over 25 years of experience in municipal law, and has achieved the highest possible Hubbell-Martindale peer ranking, there appeared to be no reasonable explanations for his firing other than political expediency and the fact that he supported Barbara Bender, Kautz’s opponent.

It also appeared that Mr. Powell’s high ethical standards were inconsistent with Kautz’s apparent private agenda; immediately after the election results were announced she stated, “We’re taking Snellville back”. She never mentioned who “we” were, nor did she define from whom she and her cohorts were taking the city. (The identities of the “we” are well-known to many Snellville residents and is a subject for another time.) But it was fairly obvious that a malleable attorney would be required to affect the group’s plans for “taking Snellville back.” Mr. Powell is anything but malleable, so apparently, he had to go. In his place, Kautz appointed Stuart Oberman. With no previous municipal law experience, Oberman was bound to be malleable, if for no other reason than he was learning as he went. As it turned out, serving as City Attorney wasn’t an easy stroll in the park, and after three months of controversy arising from what some Council members considered flawed opinions and excessive and unjustified charges, Oberman took the “attorney door” for a spin and departed.

In his place, Kautz appointed Kevin Tallant, a highly regarded attorney with excellent credentials and an abundance of municipal law experience. Unfortunately for Mr. Tallant, he has a thorough knowledge of municipal law and is of uncompromising integrity. It was apparent on several occasions that his legal opinions were not consistent with taking Snellville back to an undisclosed time and place. So after having his letter of engagement enthusiastically accepted by a majority of Council members, Mr. Tallant served as City Attorney for just over a month. Much to the displeasure of most Council members, Mr. Tallant’s service was unilaterally terminated by Kautz, with no advance notice to the Council. We learned of his termination the same way Mr. Tallant did. By e-mail.

The reasons given were that Mr. Tallant’s firm could not handle real estate transactions and that his charges were too high. Both of those statements are false. Mr. Tallant’s firm does in fact conduct real estate transactions, it just doesn’t do closings, which are typically executed by specialty firms that charge a fixed fee. It is true that Mr. Powell’s firm represented the city on occasion during Mr. Tallant’s tenure, but these were not new cases. They had begun while the previous mayor was in office and have been continuously active ever since. It simply did not make sense to transfer them to whoever was City Attorney du jour after Mr. Powell was fired. (For the record, Mr. Powell wasn’t fired outright, he was given the “opportunity” to serve as an assistant to Oberman—that is, be the instructor in a municipal law training program.)

Although Mr. Tallant’s hourly rate is higher than either of his predecessor’s, he does not charge for most work done by his staff. His bill for one month of service was under $6,000. By comparison, Oberman’s bills averaged almost $10,000 per month, and that was in addition to charges from Mr. Powell that ranged from $830 to $3442 per month for his on-going case work. So while Oberman was City Attorney, the city’s total monthly legal expenses ranged from approximately $10,830, to $13,342. By comparison, for the month that Mr. Tallant was City Attorney, total legal expenses were approximately $8,950.

Irrespective of the mathematical system used, $8,950 is less than $10,830, so the cost of Mr. Tallant’s legal services was clearly not an issue. Consequently, we can only speculate as to the true reasons for Mr. Tallant’s tenure being so brief. Even more puzzling are the true reasons that Kautz appointed Mr. Powell to once again represent the City in legal matters. Tony Powell is the same outstanding, forthright and steadfast attorney he was when he was fired five months previously.

Fortunately for the citizens of Snellville, in the latest chapter of “Adventures in City Attorney Land”, one excellent attorney is being replaced by another. But since the stated reasons for Mr. Tallant’s firing can be documented to be false, one would have to assume that the stated reasons for Mr. Powell’s re-hiring are equally false. As such, one can only wonder how long it will be before Mr. Powell receives an unexpected e-mail that sets the revolving door in motion once again.

And Yet Still More Adventures In City Attorney Land Again

My apologies to the citizens of Snellville for being a part of the latest negative publicity for our city. However, I would not be fulfilling my responsibility as a Council member if I ignored, or remained silent about what I consider improper, abusive and possibly illegal expenditures of taxpayer money. In my opinion, the majority of statements made (at the May 13^th City Council meeting) by Kelly Kautz, pertaining to the payment and non-payment of legal fees are false, and serve no other purpose than to deflect attention from her actions. As I pointed out in my Council comments, the attorneys for Cruser & Mitchell were apparently fully aware that they were representing Kautz individually, as opposed to the City, in the First Amendment violation lawsuit brought by Marilyn Swinney. Bills for services related to that lawsuit were addressed solely to Kelly Kautz, NOT the City of Snellville. On the other hand, bills for work actually related to the city, were listed on separate invoices and were addressed to the City of Snellville.

Further, without consulting with or gaining the approval of the Council, Kautz personally retained Cruser & Mitchell, long before her attempt to fire Mr. Powell. Now, she is apparently trying to justify her actions by claiming they were assistant city attorneys. That is clearly not the case, as evidenced by their bills being addressed to her, not the City. And to claim that they were hired as assistants is to admit a clear, and intentional violation of the City charter, which states, “The mayor shall appoint a city attorney, together with such assistant city attorneys as may be authorized”. (Emphasis added) In this case, the appointment of Cruser & Mitchel was clearly not authorized by the Council, and it is difficult to see any way in which the firm’s attorneys, Nola Jackson and Karen Woodward, could have been hired for the purpose of assisting City Attorney Powell. (Ironically, neither the law firm itself nor the individual attorneys list “Municipal Law” as an area of practice.)

Considering that attorneys to represent the City’s interests were provided by the City’s insurance company, and that City Attorney Powell was also involved in the case, the City had absolutely no need for additional attorneys. Consequently, the only reasonable explanation for the hiring of Cruser & Mitchell was for the defense of an individual, in this case Kautz, who was separately charged with unilaterally violating a citizen’s First Amendment rights. Kautz is certainly entitled to an attorney to represent her, but NOT at taxpayer expense.

In response to these comments and a few I’ve made in the past, I’m sure some people will label me as “mean-spirited”. From my perspective, the citizens of Snellville put their faith and trust in the officials they elect to office, and I will not stand idly by when I see that trust violated. If that is taken as an indication of being “mean spirited”, so be it.

Adventures in City Attorney Land- The Revolving Door Claims Another Victim

“Victim” may seem like a strange word to apply to a City Attorney, yet for the participants in the parade of attorneys who have recently attempted to serve the City of Snellville, it appears to be entirely appropriate. The most recent victims of Snellville’s revolving attorney door are Nola Jackson and Karen Woodward, members of the law firm Cruser & Mitchell.

Without any discussion whatsoever with other Council members, the current mayor appointed Cruser & Mitchell as interim City Attorney on December 13, 2012. On a number of previous occasions, Ms. Kautz had attempted to fire current City Attorney Powell. (Whether the mayor has the authority to fire the City Attorney is a matter that’s pending before a Superior court judge.

Obviously, neither Ms. Jackson nor Ms. Woodward had anticipated the positions into which they fouond themselves  when they agreed to serve the city. At both the January 9^th specially called meeting, and the January 14^th regular meeting, Ms. Kautz placed Ms. Woodward in the unenviable position of being asked questions that appeared to be designed to solicit answers that would contradict those offered by Mr. Powell.

To her credit, Ms. Woodward expressed her honest opinion and more often than not agreed with Mr. Powell or stated that she didn’t have the information she needed to provide an answer. Ms. Woodward was clearly uncomfortable, having been placed under the aura of cross-examination. It’s a pretty safe bet that she didn’t anticipate her legal service would give her a starring role in a contentious court room-style drama played out in a public meeting.

Consequently, it came as no surprise that on January 17^th, Cruser & Mitchell informed the City it was terminating its agreement to serve as interim City Attorney. In its letter to the City, the law firm stated, “Thank you for the opportunity to serve as interim city attorney for the City of Snellville. At this time, however, we feel it is not in the best interest of Cruser & Mitchell to continue in this position. In accordance with our agreement for services, we are providing written notice that, effective immediately, Cruser & Mitchell, LLP withdraws from representation of the City”.

That’s makes it five law firms that have gone through, or become ensnared in the revolving door in a little over a year. Two firms resigned and two were fired. In this case, two plus two equals five because one firm was fired, rehired and fired again.

The question is, “Where does the City go from here?” Given this history, many attorneys will decline to even consider serving as Snellville’s City Attorney—being fired, or resigning after only a few months or less on the job, is never a good thing to have on a resume, or on the minds of one’s peers.

So for the moment, Snellville’s revolving attorney door will continue to spin, just waiting for its next “inductee”.