Oct. 28, 2009
New Face Challenges Huntington City Council with Her Questions
Dialogue Reads Like Famed 'Who’s on First, What’s on Second,' Routine
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) -- How would an outsider consider the Monday night Huntington City Council meeting? Actually, a woman showed up to question a code enforcement policy and politely assisted in the clarification of the settlement agreement vote on the residency requirement suit.
Terri Ann Smith took an ingénue approach in asking questions. Ms. Smith is no stranger, though, to meeting protocol. She’s assistant director of the Portsmouth-Piketon Residents for Environmental Safety and Security. She resides in Athens, Ohio, and Huntington, WV.
Known as P.R.E.S.S., the group is involved in oversight and cleanup of the Piketon, Ohio, uranium plant to make certain all agencies and contractors involved in the decontamination and decommissioning operations abide by federal and state laws.
Ms. Smith is one of 21 individuals from Ohio and Kentucky appointed by United States Senator Sherrod Brown (D-OH) to the Department of Energy’s Site Specific Advisory Board (SSAB) to its Portsmouth Gaseous diffusion Plant (PORTS). After a decade long fight, the DOE agreed to allow a Community Advisory Board to “assist it with important decisions regarding clean-up issues. These involve the removal of nuclear and toxic contaminants and the future of buildings and materials on the site. DOE’s decision assures that PORTS will now have a CAB, ending a decade-long campaign by the community to establish this Board.”
During the Monday night, October 26, Huntington City Council meeting, the agreed court order residency settlement brought both procedural and substantive questions to the floor. One involved the vote on a resolution to “affirm” the settlement. However, previously, council voted to not authorize its attorney to enter into the very same settlement.
Questions remained of whether Mr. Ritter wanted to put the previous resolution vote again on record or put on record that the votes of members changing their minds following an executive session presentation by City Attorney Scott McClure.
Here’s how (in part) the Q and A went between Ms. Smith (who works as a behavioral therapist and animal rescurer), members of council and Mr. McClure:
TERRI SMITH: On the technical/legal part of it, I do not understand how you can have the same resolution twice but with two different words one in the negative, one in the positive, then switching them around , it’s the same resolution. You can’t say it’s legal to drive 60 miles per hour and another resolution that says it’s illegal to go 60 miles per hour. It’s the same thing. I’m new at this. What is this resolution? Is it a settlement ? Mr. Ritter said that the majority of the [city] voted on it were for the settlement?
INSCO: The residency requirement was voted on in favor by the public in 1993.
SMITH: The people voted on it?
INSCO: In more than one case
SMITH: By a majority
INSCO: That’s correct
SMITH: So why would the council have a secret meeting or executive meeting and come back and change their vote, yet the people want something different. You are here to represent your constituents not to decide what you think is best for the rest of us. So why is everybody changing? I would like Mr. McClure to please explain how this resolution is a different resolution?
MCCLURE: The initial resolution as presented by councilman Ritter provides that council confirm its original decision to not approve the settlement agreement. You can confirm the original vote that occurred back in August. I presume the amended resolution says affirm settlement agreement… as entered and approved by the court. Those are obviously substantially different.
SMITH: You are saying there was a separate resolution that was made by a judge… maybe you could explain that in more common terms. It’s very confusing.
INSCO: We had a resolution in August which this council voted upon. We have a resolution this evening we are about to vote upon as well. The first one was this council not agreeing and directing our attorney not to enter a settlement agreement. This resolution says you affirm the settlement agreement
SMITH: You have to do that without getting rid of the last one? Then you would have two confiicting…
INSCO: No, ma’am you do not.
SMITH: How do you not.
INSCO: Council’s rules, you can vote on the same resolution, meeting in , meeting out, meaning you can vote on the same resolution. It’s part of our rules. It does not have to be rescinded.
SMITH: So now you are saying it’s the same and you’re saying it’s two different ones. More important than the technical part of it, why has everybody changed their minds?
INSCO: I’m not saying everybody has, but you have three minutes to speak on the item and you are passed that. I’m going to ask you to sit down.
Jim Ritter asked to be more specific in explaining Ms. Smith’s inquiries:
RITTER: (Addressing Ms. Smith) The City of Huntington has a residency requirement . All that work for the city were to complete an affidavit that they lived in the city. I get calls … and people will daily … how come I pay taxes on my house, I have a B & O tax on my utilities, and the city employees who live outside the city come to us and say how come you don’t want to give us a raise or pay into our police [and fire] pension fund. This is what I hear at my [neighborhood association] meetings.
ADVISING CLIENT AT AN OPEN, TELEVISED PUBLIC MEETING? NOT!
At the thrust of the debate, advice and documentation provided by Attorney Scott McClure to members of council during an executive session discussing the residency settlement and other law suits against the city. Technicalities aside, the issue was should the closed session (or part of it) have been open?
Examining WV legal authority, the portion in which an attorney renders legal advice to his client (council) is covered by an exception to the open meetings law. What’s a little murky is at what stage (if any) would the members assessing options be required to return to an open meeting or stay in the closed session as long as no votes were taken.
An article in the West Virginia Law Review interpreting the 1999 legislative amendments to the law explained that both the legislature and West Virginia State Supreme Court anticipated executive sessions “to consider, to discuss or to plan” decisions on litigation.
At the council meeting, City Attorney Scott McClure stressed he could not (nor could any attorney) provide legal advice where the session is open and televised:
SCOTT MCCLURE (AT COUNCIL)
“I think it would be impossible a lawyer to represent a client if everything they do with settlement negotiations would have to be done on public [cable] television. First, no other lawyer in the nation practices law that way. It would be impossible to effectively advise your client and give them information if you had to do it on public television.
I can’t imagine that my duty to hold my client confidences in discussions confidential could continue when you have to do meetings on public television.
During the course of the meeting, I heard the comments of all city council members and how they stood on the issues. Obviously, I did not exercise my own judgment as an attorney, I followed directions from my client and advised him accordingly. Everybody made their statement and made their comments, from those statements and comments, I gleaned my direction, but in any event to resolve this, if anybody considers that a vote that’s their prerogative, by addressing the issue tonight that matter will be resolved. “
HOUCK: No one discussed anything with me and I’m a council person elected to represent the people of my district. I’ve had ‘how can anyone do that’ phone calls. I was not privy to the information given to Mr. McClure.
… Is what has happened [in court] country to the [August] vote on the resolution?
INSCO: In my opinion, yes sir.
….
RITTER: I heard there was a packet passed out that day [of the work session]
HOUCK: I can answer you first, no. We received nothing, no comments, no packet.
INSCO: Not to my knowledge.
BATES: Let me refresh everyone’s memory. The second executive session was to discuss not only this case but several cases that were in litigation. We were given that packet as confidential [attorney/] client privileged. Additional information was given to us on the effects of what would happen IF the judge went back to the 2002 date.
HOUCK: (now remembering, agrees and informs Mr. Ritter) There was information given by the City Attorney on what effect it could have on this case in the event the judge gave more than what was asked for.
RITTER: This information did not come from Scott [McClure] on if you don’t change your mind we are going to lose this amount of police officers. That must have come from the mayor’s office or something…. How’d all this stuff take place?
MCCLURE: If I put information to apprise council of on going litigation , I would make sure it was in every single person’s box…. Some of the information rolled back to July 2002, it could impair or call into question one third or one fourth of at least our emergency services personnel. I did not compile that information myself. I would assume it came from the Human Resources Department.
RITTER: If it put pressure on council persons because we are going to lose this or that… people know what they did when they swore to uphold the charter. Does our attorney work for us or the city? [When] Mayor Felinton was here [you] said it can’t be both [mayor and council] because David would be upset.
MCCLURE: There’s not a shred of truth in all you just said. Out of all the city attorneys I bet anybody on this council never had litigation involvement because the other city attorney’s would not do it. They went straight to the mayor and resolved it. I’ve been here eleven years and I’m the only attorney who made sure council was apprise of all the litigation.
Again, Ms. Smith stood up and asked questions of council:
SMITH: What client is Mr. McClure referring to that he cannot discuss things on public teleivison?
INSCO: Normally, attorney/client privilege[d] information is not broadcast over cable television.
SMITH: Who’s the client?
INSCO: He represents both the council and mayor of the city in all litigation.
SMITH: But City Council represents the public? Why can’t he discuss litigation on television?
INSCO: We did that once.
SMITH: Why can’t he do it all the time?
INSCO: If you hire an attorney, you don’t tell the other attorney what your plan is ahead of time.
SMITH: But now you are dividing council?
INSCO: Not to my knowledge, council doesn’t agree on every item.
SMITH: When you had this executive meeting , you went and talked to somebody who advised you it would not be a good idea to pass the resolution because you would lose jobs? So, is Mr. McClure representing , the people or council… when you go to discuss this, who told you, a judge… who told you we need to have some of city council members to come in and look at this again? Who advised you [directed to Mr. McClure]? … Who decided to re-look at this at an executive session?
INSCO: Certain members of council.
SMITH: Why couldn’t that be on television?
INSCO: We did not want to disclose to the other attorney.
SMITH: …Mr Randolph stated he is happy with his vote because he is saving people’s jobs. There’s plenty of people in this town that could work and live in the city. There’s reasons for that which have to do with money….
INSCO: You’re time has expired.
DEE EVERETT FULLERTON: What was so wrong with you all getting the backbone and say let’s go by the Charter? You are sitting here tonight saying that you are afraid that a lot of the people [working for the city] would leave and we are going to be up a creek. The city is already up a creek, and you’re making it a lot darker in the creek. If someone challenges this particular court order does that send it back to the Supreme Court? When are you going to get enough of a backbone [to enforce this]? We’re had it for years?
[Editor’s Note: An individual dissatisfied would petition for the case to be heard by the West Virginia Supreme Court. The court does not automatically grant the appeal. Under a separate scenario, citizens might petition the circuit court and if the executive session was found to NOT contain attorney/client privileged information, then, that judge, would apparently have an option to void Judge Hustead’s order.
[The challenged enforcement of the residency requirement did NOT apply to the current council and Mayor who took office January 1, 2009, as the Judge entered an injunction to prevent the requirement from being enforced until the litigation was settled.]
BATES, MAYOR WOLFE FOLLOWING VOTE ON RADIO: It’s Done. Move on.
Actually, streaming past the “catch up” questions, councilman Mark Bates succinctly explained his reasoning on radio: After discussion of different scenarios that could happen (based on a judge’s ruling), the new information [concerning the amount of potential terminations] made him change his mind during the executive session.
Like at large councilman Steve Williams, “I could not take a chance on the worst case scenario,” Bates said, referring to the loss of police and fire personnel.
Wrapping up, Mayor Wolfe has agreed to enforce the residency requirement. He complimented Mr. McClure on a “professional job.”
Bates said, “It’s done. We respectfully disagree.”
But, all it takes is a client and a lawyer to file court papers to open another sequel to the lengthy string of court cases already on the books.
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New Face Challenges Huntington City Council with Her Questions
Dialogue Reads Like Famed 'Who’s on First, What’s on Second,' Routine
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) -- How would an outsider consider the Monday night Huntington City Council meeting? Actually, a woman showed up to question a code enforcement policy and politely assisted in the clarification of the settlement agreement vote on the residency requirement suit.
Terri Ann Smith took an ingénue approach in asking questions. Ms. Smith is no stranger, though, to meeting protocol. She’s assistant director of the Portsmouth-Piketon Residents for Environmental Safety and Security. She resides in Athens, Ohio, and Huntington, WV.
Known as P.R.E.S.S., the group is involved in oversight and cleanup of the Piketon, Ohio, uranium plant to make certain all agencies and contractors involved in the decontamination and decommissioning operations abide by federal and state laws.
Ms. Smith is one of 21 individuals from Ohio and Kentucky appointed by United States Senator Sherrod Brown (D-OH) to the Department of Energy’s Site Specific Advisory Board (SSAB) to its Portsmouth Gaseous diffusion Plant (PORTS). After a decade long fight, the DOE agreed to allow a Community Advisory Board to “assist it with important decisions regarding clean-up issues. These involve the removal of nuclear and toxic contaminants and the future of buildings and materials on the site. DOE’s decision assures that PORTS will now have a CAB, ending a decade-long campaign by the community to establish this Board.”
During the Monday night, October 26, Huntington City Council meeting, the agreed court order residency settlement brought both procedural and substantive questions to the floor. One involved the vote on a resolution to “affirm” the settlement. However, previously, council voted to not authorize its attorney to enter into the very same settlement.
Questions remained of whether Mr. Ritter wanted to put the previous resolution vote again on record or put on record that the votes of members changing their minds following an executive session presentation by City Attorney Scott McClure.
Here’s how (in part) the Q and A went between Ms. Smith (who works as a behavioral therapist and animal rescurer), members of council and Mr. McClure:
TERRI SMITH: On the technical/legal part of it, I do not understand how you can have the same resolution twice but with two different words one in the negative, one in the positive, then switching them around , it’s the same resolution. You can’t say it’s legal to drive 60 miles per hour and another resolution that says it’s illegal to go 60 miles per hour. It’s the same thing. I’m new at this. What is this resolution? Is it a settlement ? Mr. Ritter said that the majority of the [city] voted on it were for the settlement?
INSCO: The residency requirement was voted on in favor by the public in 1993.
SMITH: The people voted on it?
INSCO: In more than one case
SMITH: By a majority
INSCO: That’s correct
SMITH: So why would the council have a secret meeting or executive meeting and come back and change their vote, yet the people want something different. You are here to represent your constituents not to decide what you think is best for the rest of us. So why is everybody changing? I would like Mr. McClure to please explain how this resolution is a different resolution?
MCCLURE: The initial resolution as presented by councilman Ritter provides that council confirm its original decision to not approve the settlement agreement. You can confirm the original vote that occurred back in August. I presume the amended resolution says affirm settlement agreement… as entered and approved by the court. Those are obviously substantially different.
SMITH: You are saying there was a separate resolution that was made by a judge… maybe you could explain that in more common terms. It’s very confusing.
INSCO: We had a resolution in August which this council voted upon. We have a resolution this evening we are about to vote upon as well. The first one was this council not agreeing and directing our attorney not to enter a settlement agreement. This resolution says you affirm the settlement agreement
SMITH: You have to do that without getting rid of the last one? Then you would have two confiicting…
INSCO: No, ma’am you do not.
SMITH: How do you not.
INSCO: Council’s rules, you can vote on the same resolution, meeting in , meeting out, meaning you can vote on the same resolution. It’s part of our rules. It does not have to be rescinded.
SMITH: So now you are saying it’s the same and you’re saying it’s two different ones. More important than the technical part of it, why has everybody changed their minds?
INSCO: I’m not saying everybody has, but you have three minutes to speak on the item and you are passed that. I’m going to ask you to sit down.
Jim Ritter asked to be more specific in explaining Ms. Smith’s inquiries:
RITTER: (Addressing Ms. Smith) The City of Huntington has a residency requirement . All that work for the city were to complete an affidavit that they lived in the city. I get calls … and people will daily … how come I pay taxes on my house, I have a B & O tax on my utilities, and the city employees who live outside the city come to us and say how come you don’t want to give us a raise or pay into our police [and fire] pension fund. This is what I hear at my [neighborhood association] meetings.
ADVISING CLIENT AT AN OPEN, TELEVISED PUBLIC MEETING? NOT!
At the thrust of the debate, advice and documentation provided by Attorney Scott McClure to members of council during an executive session discussing the residency settlement and other law suits against the city. Technicalities aside, the issue was should the closed session (or part of it) have been open?
Examining WV legal authority, the portion in which an attorney renders legal advice to his client (council) is covered by an exception to the open meetings law. What’s a little murky is at what stage (if any) would the members assessing options be required to return to an open meeting or stay in the closed session as long as no votes were taken.
An article in the West Virginia Law Review interpreting the 1999 legislative amendments to the law explained that both the legislature and West Virginia State Supreme Court anticipated executive sessions “to consider, to discuss or to plan” decisions on litigation.
At the council meeting, City Attorney Scott McClure stressed he could not (nor could any attorney) provide legal advice where the session is open and televised:
SCOTT MCCLURE (AT COUNCIL)
“I think it would be impossible a lawyer to represent a client if everything they do with settlement negotiations would have to be done on public [cable] television. First, no other lawyer in the nation practices law that way. It would be impossible to effectively advise your client and give them information if you had to do it on public television.
I can’t imagine that my duty to hold my client confidences in discussions confidential could continue when you have to do meetings on public television.
During the course of the meeting, I heard the comments of all city council members and how they stood on the issues. Obviously, I did not exercise my own judgment as an attorney, I followed directions from my client and advised him accordingly. Everybody made their statement and made their comments, from those statements and comments, I gleaned my direction, but in any event to resolve this, if anybody considers that a vote that’s their prerogative, by addressing the issue tonight that matter will be resolved. “
HOUCK: No one discussed anything with me and I’m a council person elected to represent the people of my district. I’ve had ‘how can anyone do that’ phone calls. I was not privy to the information given to Mr. McClure.
… Is what has happened [in court] country to the [August] vote on the resolution?
INSCO: In my opinion, yes sir.
….
RITTER: I heard there was a packet passed out that day [of the work session]
HOUCK: I can answer you first, no. We received nothing, no comments, no packet.
INSCO: Not to my knowledge.
BATES: Let me refresh everyone’s memory. The second executive session was to discuss not only this case but several cases that were in litigation. We were given that packet as confidential [attorney/] client privileged. Additional information was given to us on the effects of what would happen IF the judge went back to the 2002 date.
HOUCK: (now remembering, agrees and informs Mr. Ritter) There was information given by the City Attorney on what effect it could have on this case in the event the judge gave more than what was asked for.
RITTER: This information did not come from Scott [McClure] on if you don’t change your mind we are going to lose this amount of police officers. That must have come from the mayor’s office or something…. How’d all this stuff take place?
MCCLURE: If I put information to apprise council of on going litigation , I would make sure it was in every single person’s box…. Some of the information rolled back to July 2002, it could impair or call into question one third or one fourth of at least our emergency services personnel. I did not compile that information myself. I would assume it came from the Human Resources Department.
RITTER: If it put pressure on council persons because we are going to lose this or that… people know what they did when they swore to uphold the charter. Does our attorney work for us or the city? [When] Mayor Felinton was here [you] said it can’t be both [mayor and council] because David would be upset.
MCCLURE: There’s not a shred of truth in all you just said. Out of all the city attorneys I bet anybody on this council never had litigation involvement because the other city attorney’s would not do it. They went straight to the mayor and resolved it. I’ve been here eleven years and I’m the only attorney who made sure council was apprise of all the litigation.
Again, Ms. Smith stood up and asked questions of council:
SMITH: What client is Mr. McClure referring to that he cannot discuss things on public teleivison?
INSCO: Normally, attorney/client privilege[d] information is not broadcast over cable television.
SMITH: Who’s the client?
INSCO: He represents both the council and mayor of the city in all litigation.
SMITH: But City Council represents the public? Why can’t he discuss litigation on television?
INSCO: We did that once.
SMITH: Why can’t he do it all the time?
INSCO: If you hire an attorney, you don’t tell the other attorney what your plan is ahead of time.
SMITH: But now you are dividing council?
INSCO: Not to my knowledge, council doesn’t agree on every item.
SMITH: When you had this executive meeting , you went and talked to somebody who advised you it would not be a good idea to pass the resolution because you would lose jobs? So, is Mr. McClure representing , the people or council… when you go to discuss this, who told you, a judge… who told you we need to have some of city council members to come in and look at this again? Who advised you [directed to Mr. McClure]? … Who decided to re-look at this at an executive session?
INSCO: Certain members of council.
SMITH: Why couldn’t that be on television?
INSCO: We did not want to disclose to the other attorney.
SMITH: …Mr Randolph stated he is happy with his vote because he is saving people’s jobs. There’s plenty of people in this town that could work and live in the city. There’s reasons for that which have to do with money….
INSCO: You’re time has expired.
DEE EVERETT FULLERTON: What was so wrong with you all getting the backbone and say let’s go by the Charter? You are sitting here tonight saying that you are afraid that a lot of the people [working for the city] would leave and we are going to be up a creek. The city is already up a creek, and you’re making it a lot darker in the creek. If someone challenges this particular court order does that send it back to the Supreme Court? When are you going to get enough of a backbone [to enforce this]? We’re had it for years?
[Editor’s Note: An individual dissatisfied would petition for the case to be heard by the West Virginia Supreme Court. The court does not automatically grant the appeal. Under a separate scenario, citizens might petition the circuit court and if the executive session was found to NOT contain attorney/client privileged information, then, that judge, would apparently have an option to void Judge Hustead’s order.
[The challenged enforcement of the residency requirement did NOT apply to the current council and Mayor who took office January 1, 2009, as the Judge entered an injunction to prevent the requirement from being enforced until the litigation was settled.]
BATES, MAYOR WOLFE FOLLOWING VOTE ON RADIO: It’s Done. Move on.
Actually, streaming past the “catch up” questions, councilman Mark Bates succinctly explained his reasoning on radio: After discussion of different scenarios that could happen (based on a judge’s ruling), the new information [concerning the amount of potential terminations] made him change his mind during the executive session.
Like at large councilman Steve Williams, “I could not take a chance on the worst case scenario,” Bates said, referring to the loss of police and fire personnel.
Wrapping up, Mayor Wolfe has agreed to enforce the residency requirement. He complimented Mr. McClure on a “professional job.”
Bates said, “It’s done. We respectfully disagree.”
But, all it takes is a client and a lawyer to file court papers to open another sequel to the lengthy string of court cases already on the books.
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