Jackson Free Press

Members of City Council say they are still stinging from being duped by their own attorney into paying her thousands of extra dollars.

The council held a special meeting last Thursday following a Nov. 2 Jackson Free Press story breaking the news that City Attorney Sarah O'Reilly-Evans could be paid thousands for her role in preparing the $65 million convention center bond proposal, on top of her $113,000 annual salary. A clause in her employment agreement allows her to scrape 1 percent of the costs of any bond proposals she helps script. State law limits that amount to no more than what was paid to co-counsel, which was $70,000.

O'Reilly-Evans opted to peel $25,000 back off the $70,000 she could have gotten. At the Thursday meeting, council members learned that O'Reilly-Evans had already gotten a $45,000 check, despite the storm of controversy surrounding the extra pay.

"There was nothing we could do to stop this," said Council President Ben Allen.

"The idea of paying her twice for work that we've already hired outside counsel for is a terrible waste," McLemore told the JFP. "We can't afford to do this kind of business."

Ward 4 Councilman Frank Bluntson has no objection to the extra pay. "No one is saying that (O'Reilly-Evans) did anything illegal by taking this money, is that correct?" Bluntson said.

"I'm not saying it was illegal," Barrett-Simon insisted, "but as the city attorney, I would think she would let us know that this clause was in her contract."

The councilwoman used the contract—and O'Reilly-Evans' failure to inform the council of the clause—to argue that the council needed its own representing attorney.

"There's no question that if we'd had our own counsel we would have been aware of (O'Reilly-Evans') employment agreement, and I think the council would have asked more questions prior to her confirmation," Barrett-Simon told the JFP.

State law prohibits council from having its own attorney independent of the mayor's office, forcing the council to take legal opinions of the executive branch on faith.

Attorney General Mike Moore issued an opinion in 1999 to Ward 3 Councilman Kenneth Stokes during the last administration, explaining that the council has no state power to seek legal counsel from any source other than the city attorney. Moore offered a similar opinion to McLemore in 2000, writing, "There is no authority for the City Council to appoint a council attorney to advise or render legal assistance to the city council. … The attorney represents the municipality, not one or more officers."

It's a law that needs to change, according to Ward 6 Councilman Marshand Crisler.

"You can't tell me that after something like this, the council doesn't need its own attorney," Crisler said. "It's clear that we need some form of legal counsel."

Memphis, Tenn., has independent attorneys for the legislative branch, as do Atlanta and Dallas.

Jack Sammons, who serves as councilman of Position 3 of Memphis' Super District 9, called his council's independent attorney "absolutely essential," and "a part of the fundamental principle of the checks and balances in our democracy."

"I would spend the money on a council attorney before I would spend money on air-conditioning for the council chamber," Sammons said. "I'm sure your mayor's a fine gentleman, but there's not a mayor in the world that wouldn't want his legislative body to have the same attorney that he has. At the end of the day, the attorney is appointed at the will and pleasure of the mayor. The mayor comes down with an opinion and tells the lawyer to go find some law to back it up. He doesn't ask if it's constitutional or not. He says, 'I need you to go find a law that says I've got the right to spend all this money without the review of the legislative branch,' and the city attorney will go out and find some gray area of the law that might subscribe to the mayor's opinion. If the council doesn't have its own representative, then they're out of luck."

Sammons added that if Mississippi law prohibited council attorneys, it "was likely a mayoral lobby that passed that one."

House Municipality Committee Chairman Rep. Walter L. Robinson Jr., D-Bolton, said he might submit a bill to allow for an independent council attorney in the upcoming legislative session, if council members brought the proposal to him.

"I do believe there could be a problem (with the current law), because the attorney will represent the mayor. If you look at attorney O'Reilly-Evans, the mayor signs her contract, and whoever signs your contract is your supervisor," Robinson said. "I don't know how easy state law would be able to change, but we'll sure take a look at it. The council members know my number. I'm sure they'll give me a call."

O'Reilly-Evans told The Clarion-Ledger last week that council members were free to hire a policy analyst to review documents such as her employment agreement.

Kimberly Campbell, who was policy analyst under this administration before resigning her post two months ago said O'Reilly-Evans was very pointed about how she could not offer legal opinions to the council, however.

"Miss Evans had a lot to do with me leaving," said Campbell, "because when people start threatening your license and bringing you up on bar charges, you start thinking about making different decisions."

Council members had called upon Campbell to render an opinion on the council's responsibilities in bid proposals for the city's legal ads. State law requires the council pick the lowest qualified bidder. Mayor Frank Melton vetoed the council's 6-1 vote to award the ads to The Mississippi Link because The Clarion-Ledger has a wider circulation.

Campbell advised the council to follow the letter of state law and pick the lowest bidder, not the biggest circulator—and says she got a threat from O'Reilly-Evans endangering her standing with the Mississippi Bar.

"She personally said, 'I'm concerned about opinions that you're issuing. That's not your job. You're not allowed to tell the council what they should do. If they need research done, they have attorneys that serve them,'" Campbell recalls. "She told me she could bring me up on bar charges for that."

The council followed O'Reilly-Evans' opinion, awarding the ads to The Clarion-Ledger, and later lost a lawsuit brought by the Link. The city is paying the Link $45,000 to settle the case, according to Link attorney Dorsey Carson.

O'Reilly-Evans had not returned our phone calls by press time.

City Council decided during the Thursday meeting to meet again Nov. 22 after consulting with outside counsel. Council members so far refuse to name the counsel.

"Let's just say that they are inside the city and not located somewhere in Ridgeland or Madison," McLemore said.

According to Allen, the council will review O'Reilly-Evans' contract and the circumstances surrounding her payment for the bond issuance and then advise City Council, though beyond that Allen is secretive. Allen joined Melton in submitting a Nov. 14 resolution "prohibiting the disclosure of matters discussed or determined in executive session,"—within which the O'Reilly-Evans contract is discussed almost exclusively.

Previous Comments

ID

67096

Comment

Does any of this register with those who support Melton? What a raw deal that we are having to deal with because of the brutish incompetence of Melton and his appointees. If they planned it right and worked as a group campaigning, a fresh batch of Council-members could be elected in 2009.

Author

pikersam

Date

2006-11-15T23:21:59-06:00

ID

67097

Comment

Okay, First of all AG opinions are not law, please do not cite them as such. Perhaps the MSCT can clarify this: First, "[o]pinions of the Mississippi Attorney General do not have the force of law...." Gulf Ins. Co. v. Neel-Schaffer, 904 So.2d 1036; Inc.;(quoting, Frazier v. Lowndes County, Mississippi Bd. of Educ., 710 F.2d 1097, 1100 (5th Cir. 1983)) and (citing Local Union No. 845, United Rubber, Cork, Linoleum and Plastic Workers of Am., Home Assoc. v. Lee County Bd. of Supervisors, 369 So.2d 497, 498 (Miss. 1979)). The AG is an attorney, like so many others. Law is passed by the Legislature and interpreted by the Courts under the Constitution. No one "lobbied" for an AG opinion. Someone asked for one and a staff attorney at the AG's office rendered their opinion of the law. Whoopeee. Second, the Municipal code specifically authorizes the City Council to hire outside council. Jackson M. Code Section 2-39. Are you seriously suggesting that the Council could not hire counsel to investigate this matter or review this contract because the AG has passed a "law" prohibiting seperate council? Thats crap. The Council clearly has the authority to hire outside council to investigate matters. I suggest it investigate any matter of a municipal attorney submitting a hostile contract when they have, by statute, been hired to represent the city's interest. Third, the governing statute, which certainly trumps Municipal code and eradicates AG opinions, specifically provides for that the "governing authorities" of the municipality may hire council, to wit: "The governing authorities may annually appoint an attorney-at-law for the municipality, prescribe his duties and fix his compensation, and/or they may employ counsel to represent the interest of the municipality, should the occasion require." Miss Code Ann 21-15-25 Does this limit the council? No it does not. Furthermore, there is a legitimate question as to whether SOE was representing the "interest of the municipality" when she took 45k from under noses of the taxpayers. As Kingfish noted in another thread, smart for her, not so smart for Jackson. The Jackson Muncipal code is what specifies that the city attorney shall be appointed by the mayor (2-216). So change this provision. The City Council enacts muncipal code all the time, change this provision, problem solved for the future. We don't need the legislature to clean up this mess, we need some city councilmen, and women.

Author

Niles Hooper

Date

2006-11-16T00:06:52-06:00

ID

67098

Comment

You make a good point. How 'bout: It's the law being interpreted that needs to change? And it sounds like there is a legislator from Bolton ready to lead that charge. Otherwise, I totally agree with you. Councilfolks need to clean this up—but the real responsibility lies with the mayor. Why doesn't he step up and announce that she is not taking the money and that they are striking the clause? Let's not give Melton a pass, even if he is on probation.

Author

DonnaLadd

Date

2006-11-16T11:30:46-06:00

ID

67099

Comment

Perhaps I was being obtuse, and you therefore thought I was defending the mayor. I am not. He is equally responsible, but not equally empowered to correct the problem, because he does not make ordinances. This very issue was address in the Jordan case, but IT IS IMPORTANT TO ACTUALLY READ THE CASE. This case is often cited to mean, the Mayor has the sole authority to appoint the city attorney. This was the basis, in part, for the AG opinion, the one to Crisler, that is apparently hanging you up. The AG simply misread Jordan, and the Council and you are simply misreading their opinion based on Jordan. Jordan states: The question, here, is whether, in the context of city legal officers, the term "governing authorities" should be read to mean the mayor, the council or both. More appropriately stated, the question is whether handling those appointments pursuant to duly adopted ordinances giving the council approval or "advice and consent" runs afoul of the mayor-council statutory scheme which purports to vest "executive" power in the mayor and "legislative" power in the city council. Notice the "duly adopted ordinances" verbiage. Thats the important part. Justice Banks, as a good judge does, was limiting the question to whether the ordinance of the city, which provided only for mayoral appointment, were in line with the statute which they clearly are. The challenge in the case was to the ordinance, not the statute. Ultimately, the court found that the Council had the power to approve up or down the mayors appointment under the ordinance. There is nothing suggesting an exclusive right of appointment in the mayor, beyond what the ordinance allowed. In other words, the Jordan case simply found that one logical definition of "governing authorities" was -- appointed by mayor, confirmed by council. That this is one reading, of course, does not mean its the only reading. The case in no way states that a different ordinance, one, for example, providing for additional counsel or co-appointment, would be illegal. Following the reasoning of Jordan, its obvious that an ordinance sharing power between the mayor and the council would most likely be fine due to the fact that separation of powers is simply not a municipal concern. The city council should just repeal the appointment provision and replace it with a provision providing that it can appoint special counsel upon a simple majority vote on motion by any member. If they really felt bold, allow for co-equal appointment. The point is that the City Council has the power to pass that ordinance within the confines of the statute. They don't need a legislator from Bolton, they just need to act.

Author

Niles Hooper

Date

2006-11-20T23:39:17-06:00

ID

67100

Comment

Or, more to the point, What law are you saying is being interpreted? Because I can't find one that needs be changed to allow the council to fix this problem.

Author

Niles Hooper

Date

2006-11-20T23:40:38-06:00