May 26, 2004

After nearly four hours of contentious debate and an apparently doomed effort by its president, Christopher Coons, to compromise to achieve consensus, New Castle County Council agreed to postpone action on a controversial ordinance to establish a procedure for monitoring the hiring and paying of outside attorneys.

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?"

2004. All rights reserved.

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