Lincoln aldermen renew city attorney agreement by unanimous vote

[August 23, 2017]  LINCOLN - At the Monday evening voting session of the Lincoln City Council aldermen voted 7-0 to renew an agreement for contractual services with Woods & Bates Attorneys at Law with Blinn Bates as the firm’s designee for city attorney services for the next four years. Aldermen present were Michelle Bauer, Heidi Browne, Jeff Hoinacki, Kathy Horn, Ron Keller, Steve Parrott, and Tracy Welch. Rick Hoefle was absent for the evening.

The motion to approve the contract was made by Michelle Bauer and seconded by Jeff Hoinacki. Tracy Welch suggested that the vote be postponed until all eight aldermen were present, but Bauer said she would not rescind her motion, and Hoinacki agreed saying he would not rescind his second.

Before the item came up on the agenda for the night, Wanda Lee Rohlfs addressed the council during public participation. She began by saying she had sent emails to the aldermen and while some had responded others had not. Therefore, she wanted to know if any of the aldermen had any questions for her. No one responded.

She continued, saying she had a couple of questions. She said she was addressing the issues around the city attorney contract or agreement and first wanted to know what the difference was between a contract and an agreement. No one responded.

She then said she had searched the meanings of the words online and found “one is binding and the other is not, so I was confused as to whether this was a binding agreement or a contract.” She asked Blinn Bates to clarify the terminology from a legal standpoint. Bates responded, “If someone on the city council would like me to, I would be happy to.” Welch said he would like for Bates to answer the question, and Bates, responding to Rohlfs said that the definitions in this case were one in the same.

She went on saying she had more questions for Bates, but wanted to know of Mayor Seth Goodman if it would be appropriate to address Bates, or should she address the council.

Bauer asked first for Rohlfs to define the nature of the questions. Bauer said she wanted to know if Rohlfs questions were relevant to the decision the council would be asked to make later in the evening. Rohlfs said she felt they were quite significant.

She went on to say her first question was how did Bates perceive his role in working with city ordinances? She asked how Bates perceived his duty for ordinances.

Bauer said that Bates was to draft and review ordinances as assigned.

Parrott spoke up and said he thought the real issue Rohlfs was wanting to address pertained to reports. While it seemed to take a while to drill down to the real issue, it eventually came out that there is an ordinance stating the city attorney is to submit a report of activities for the city in the third week of April each year, and that Bates had failed to submit the report.

Welch brought clarity to the questions saying. “Let’s just all put the cards on the table and talk about what you want to talk about, but I don’t want this to become a debate. You feel reports were not given to the council when we have an ordinance that states reports should be given to the council.” Welch went on to say that issue had been addressed and remedied in the new agreement.

Bauer added that the council had never asked for a report. Rohlfs countered that the ordinance was legally binding and the attorney had not done what was expected. She said then Bauer was saying the attorney’s lack of reporting was the fault of the council for not asking.

City Administrator Clay Johnson spoke up to clarify the situation further. He said the ordinance was written for an “employed city attorney” and Bates’ is not an employee, he is under contract to the city and that is different. Johnson went on to say it was an issue with the city that had been addressed in the new agreement or contract with Bates.

Rohlfs then said that she understood then that the new agreement was going to assure that in the future the reporting would be done. She went on to talk about the rate of pay for the attorney at $84,000 annually plus a three-percent increase annually. She said she felt that without the reports, the council had no basis for determining whether or not the attorney was putting in the hours for which he was being paid.

Rohlfs would go on to say she wondered if the city needed to contract an attorney. Would it not be more responsible to hire an attorney “as needed?”

Bauer commented that she was confident that the city attorney spent a minimum of 10 hours per week for the city of Lincoln, which is what would be needed to justify the $84,000.

Parrott commented that the reports submitted will not give an account of hourly work performed, and Welch noted that there will also be matters of confidentiality that will not appear in the reports either.

Rohlfs also questioned the four year contract and was told there is a 30 day termination clause in the contract that entitle either the city or Bates to terminate the agreement with 30 days written notice.

Welch would also comment that the three percent annual increase is not guaranteed. He said increases to the city attorney would coincide with increases to city department heads, and that the city attorney will never receive an increase that exceeds the increase given to those department heads.

When the item came to vote later in the evening, Welch would tell the council it had been suggested to him that perhaps the vote for city attorney should be taken when the full council was present. Bauer and Hoinacki had already made their motion and second and said they would not rescind it.

Welch cited that the council was delaying the waste hauler contract for a date when there would be a full council. He felt like the council had set a precedent of delaying votes and now to go against that precedent wasn’t quite right.

Johnson said that indeed the council has “hand-picked” issues to delay votes on, but that there were also plenty of instances where votes were taken without the full council present.

Bauer, Hoinacki and Parrott all offered comments as well, saying that they felt to move forward with seven aldermen voting was appropriate.

With a roll call vote, all seven aldermen present voted to renew the city attorney agreement with Bates.

In regard to the topic of reporting, the attorney agreement passed now states the following:

Woods & Bates shall file with the Mayor and/or City Administrator a monthly activity report recapping the legal activities undertaken for the month immediately prior to reporting. Said report shall be submitted in writing and the Mayor and/or City Administrator shall make the same available to all Council Members. Woods & Bates shall report on any ongoing litigation in executive session of the City Council, as often as necessary or requested by the City Council. City of Lincoln understands that any and all written reports submitted, in writing, to the City Council have to be produced under the Freedom of Information Act.

[Nila Smith]