February 5, 2003

New Castle County Council will receive, probably at its Feb. 11 session, proposed legislation that would define groundrules for providing county employees with publicly financed legal representation by outside counsel if the employee becomes involved in civil or criminal cases or investigations as the result of anything done in connection with his or her job.

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--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.

2003. All rights reserved.

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