By Amanda Estes
Staff Writer
    Although the intent of Monday’s special meeting was to go into executive session to discuss the South Portland City Council’s rights in regards to overseeing corporation counsel, the motion failed with councilors opting to consult with Linda McGill, an attorney with Bernstein Shur, in public. Two weeks ago, the council authorized Mayor Claude Morgan to seek outside legal advice about city attorney Mary Kahl. McGill was present to answer the council’s questions about proceeding with outside counsel.
    The motion to go into executive session failed to get the necessary five votes, with Councilors Jim Hughes, Maxine Beecher, Ralph Baxter, and Morgan in favor of discussing the matter in private. Advocating for a public discussion were councilors Linda Boudreau, Jim Soule, and Kay Loring, who saw no reason why the meeting should be confidential. Boudreau said if the intent of the meeting was to discuss policy for working with the city’s legal department, the meeting should be public.
    “If we’ve been not handling our responsibility properly...we need to know and the public needs to know,” she said.
    When Kahl inquired whether the intent of the meeting was to discuss the personnel matter that came before the council two weeks ago, Morgan said it was a separate issue.
    “I have spoken with Linda several times regarding what we do when we bump up against sticky situations like we have in the past,” Morgan said. “There is a lack of clarity (and) no strong guidance when we may wish to go to outside counsel. What should we do if we find in house (counsel) has a conflict of interest?”
    McGill said the council has the final say in when outside legal advice can be sought and said it would be useful for the city to create a set of guidelines for executing the process. She said the city’s charter does not have a detailed description of the city’s legal department and it does not identify who has the right to obtain outside advice. The council, she said, could choose to leave that decision up to Kahl’s discretion, however, it is not obligated to include her.
    “You are the final arbiters of when outside counsel can be used,”she said. “If corporation counsel says no, the council could say, ‘Thanks, but we’ve decided to seek outside counsel because we think there’s a conflict.’” She said any councilor seeking outside legal advice would have to be doing so on the council’s behalf.
    Councilors Boudreau and Hughes favored conducting aspects of the process in executive session rather than authorizing one councilor to go forward. Soule and Loring had expressed concerns about an individual member of the council being authorized to spend tax payer’s money for legal fees. Loring said whenever money is spent, the entire council and the public needs to be involved. Soule said there needs to be a public debate about whether the expenditures would be valid.
    “Public debate is paramount,” he said. “None of us were elected to spend the city’s resources unilaterally.”
    Morgan questioned whether the council would need to go through the formal process of holding a public meeting, a council meeting, and a full vote each time it wanted to consider outside advice. He questioned whether in an emergency situation, there could be a more expeditious process, such as getting votes or consensus over the phone. McGill said unless the city established an account for residual legal funds, expenditures for outside legal counsel would have to be made in public.
    In the event, the council perceives it is receiving bad legal advice from Kahl, McGill said the council would be within its rights to ask her to recuse herself. She added, however, in this situation, the council would be making a “judgement about legal advice.”
    Although McGill said none of the councilors had approached her about eliminating the corporation counsel and the city’s legal department, she said that action would constitute a charter change and public input. Corporation counsel “serves at the pleasure of the council,” she said. The position is appointed by the council and McGill said the individual in the position “can be dismissed with very little process.”
    “If you’re not happy with somebody’s service, you can dismiss,” she said.
    Kahl reminded the council of the city’s standing orders-passed before her appointment-for outside counsel. Last Monday, the council authorized Norman, Hanson and DeTroy, with which it has a standing order, to provide legal services for a Freedom of Access Act request for City Manager Ted Jankowski’s email correspondence.
    In that instance, Kahl approached the firm, citing lack of time and the alleged conflict of interest as her reasons for stepping back.