Litigation of local officials poses attorney bill questions
Last month Clackamas County Commission Chair Jim Bernard turned heads when he paid the county $21,000 for his legal defense of an ethics violation after having asked the commission for the county to foot the bill. Bernard had already paid $5,000 of the $26,000 in legal fees for an Oregon Government Ethics Commission (OGEC) investigation into whether he used his position as a commissioner inappropriately. The commission obliged Bernard's request on a 3-1 vote with the lone "nay" coming from Commissioner Paul Savas. But during a policy session Jan. 14, Commissioner Martha Schrader stated she wanted to switch her vote.
In an interview with Pamplin Media Group Jan. 17, Bernard said he didn't have the $20,000 in liquid assets to pay the remainder of the bill, but four days later he submitted a check in the necessary amount to the county administrator. He told Pamplin he was paying the fees through a line of credit.
The question of who should pay an elected official's legal fees is not new to politicians in West Linn, or the citizens who closely follow their words and actions.
West Linn City Council President Teri Cummings racked up around $30,000 in legal fees last year for her defense in a lawsuit from a West Linn citizen. The fees continue to mount as the lawsuit — and the council's decision for taxpayers to fund the defense — are now the subject of an OGEC investigation. The judge's opinion in the lawsuit, which favored Cummings, is now headed to the Oregon Court of Appeals, again adding to the total legal bill.
Though the circumstances around Bernards' and Cummings' legal fees are quite different, at the heart of each is a single question, pertinent to public officials around the country: should the burden of legal costs for a public official fall on that official or the taxpayers?
Beneath this question are several more that could give insight. One of these questions: Would that official have incurred these expenses if they did not hold public office?
In the case of both Cummings and Bernard, the answer to this question is no.
From here the questions become more complicated. For example, whether the official could have avoided these expenses by acting in a different manner is something to consider. As Bernard's legal fees were the result of an investigation that found he had violated ethics laws (he maintains he was "unjustly accused"), it's reasonable to assume that he could have avoided them by acting more appropriately. Still, should that mean he should shoulder the burden of the costs?
Cummings' litigation — the result of unanswered public records requests by a West Linn citizen — is a bit less straightforward. Her decision to withhold the council notes requested by the citizen was affirmed by a Clackamas County Circuit Court judge, but that ruling will now be called into question by the Oregon Court of Appeals. This case is further complicated by the fact that it is now the subject of an OGEC investigation — which seeks to determine, in part, whether it was right for the City's legal services to represent Cummings in the lawsuit.
Defense of the Cummings lawsuit was discussed only in executive session, meaning the public knew very little of the lawsuit they were forced to pay for, which is part of the reason for the investigation.
Cummings did not respond to requests for comment on this matter, while City Attorney Tim Ramis declined to comment because it relates to the appeal which is still pending.
Another circumstance to consider is how much the official is compensated for holding public office. Is it fair to ask an official to pay legal fees greater than the salary they earn in their official position if they would not have incurred those fees if they weren't serving as a public official? Again, neither Cummings nor Ramis commented on this matter.
Serving as a West Linn City Councilor is not officially a volunteer position. Councilors are paid $5,100 annually. By contrast, Clackamas County Commissioners are paid an average of $84,700 a year.
The question of who should pay a public official's legal fees likely has no clear, universal answer, and this has caused headaches for governments everywhere.
Early last year, the New York City Council passed a bill allowing elected officials to fundraise for their legal bills after Mayor Bill de Blasio accumulated $3 million in attorney fees, $2.6 million of which was paid by the City.
De Blasio's plan for the City to pay the majority of the bill drew ire from the City's comptroller (financial reporting supervisor) who wanted to make sure that public funds were not used to pay legal fees the mayor incurred in a personal capacity.
As of Feb. 4. 2020, de Blasio had yet to set up a fund for donors to contribute to the remaining $300,000 of his bills, according to New York Daily News.
Asked whether he had any ideas on how to simplify the question of who pays public official's fees, Ramis said he's not sure whether a clear solution exists.
However, he pointed out a couple more considerations to take into account.
"A possible consideration in developing good policy might be determining if the local government has interests which are at stake in the final ruling in the case. Where the local government has an important interest, the outcome appropriately may be different than in a case involving only private interests," Ramis said. "Also, some cases establish precedents with statewide significance, while others affect only a few individuals. Cases with great significance may call for different treatment than a purely individual matter."
Ramis also pointed out that without some level of protection, the risk of litigation in a public office might deter citizens from running in local races.
"What is the appropriate level of protection that should be provided for elected officials in order to assure that prudent citizens are willing to accept the risks and run for local office?" he said.
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