Current solicitor's dual representation creates conflict with council

Wednesday, September 24, 2008

By John Karlovec

Lawyer's representation of CARE in power line controversy a concern

A proposed power line project that would provide much needed electricity to the Village of Middlefield may end up costing the village's solicitor his job.

Village Council is on record as supporting FirstEnergy Corp.'s plans to bring more electrical capacity to the Middlefield area and is concerned that is legal counsel's representation of a citizens' group opposed to route of the proposed 138 kV transmission line may delay the project.

As a result, council gave Administrator Dan Weir to go ahead to solicit requests for proposals for legal services. Weir said RFPs were issued last week to some local attorneys as well as Cleveland law firms such as Squires Sanders & Dempsey and Bricker & Eckler. Also invited to respond was Taft Stettinius & Hollister, the village's current law firm.

Current solicitor Tom Lee, a senior partner at Taft Stettinius, was hired last year to represent Citizens Advocating Responsible Energy, a citizens' group opposed to siting the power line along either Route 528 or Clay Street and through Thompson, Montville and Huntsburg townships.

Weir said a consensus of council was not opposed to issuing an RFP.

"We wanted to try to at least see what's available out there in terms of legal representation," Weir said. "I think council looks at it like there is no harm in requesting proposals. It's been a number of years since the village has actually done anything in regards to looking at legal counsel."

Lee has served as the village's solicitor since 1990 and his partner, Steve O'Bryan, held the position from 1980 to 1990, Weir said.

Lee's professional service agreement with the village provides for a $750-a-month retainer for attendance at one meeting. In addition, he is paid $220 an hour for other legal services provided the village, including attendance at council's second monthly meeting as well other as committee meetings. In 2007, the village paid Taft Stettinius $197,324 in legal fees, according to Weir.

While Weir said there was no harm in soliciting proposals, the issue of Lee's representation of CARE certainly was the impetus to issue the RFP now.

Weir said several village businesses, including KraftMaid, as well as a consultant to all the local manufacturers raised the CARE issue with him.

"To begin with, CARE really isn't in opposition to the power being brought here to the village, they just want it to go a different route. And by them doing that, basically, they delay things," Weir said. "And our stance, the village's stance, is we want to see it (increased electrical power) brought here the most expeditious way possible.

"So, everything that is done basically to prevent that from happening, I guess, is in opposition to where we stand."

Whether an actual legal conflict of interest exists in Lee's representation of CARE and his law firm's representation of the village is immaterial to the manufacturers, according to Weir.

"They're looking at it as a conflict," he said of the business community. "On one hand, our solicitor basically is being paid with taxpayer money, and the taxpayers are the ones that would benefit from this line being run here, and the village's position is that we want to see the power line brought here as quickly as possible for these manufacturers and stuff.

"And, it just seems to be like a conflict that the solicitor is representing a group that is doing just the opposite of what the public officials' intentions are. So, the elected officials look at it as a conflict, whether or not it's a legal conflict. We look at it as a conflict."

Mayor Bill Poole agreed with Weir's assessment of the situation.

"CARE is not fighting the power line, of course, but the site of the power line. But if they continue to fight the site of the power line, then it delays the whole process, which is not good for our industries, especially here in town," Poole said. "I know there are a few industries that definitely are waiting to see if this goes and goes through now, because they do have additions or expansions they want to put on."

The mayor added there is a new company that has discussed locating in Middlefield, but will not unless it can be assured there will be extra power available.

"I understand the property owners up there and what they're going through, but we're here to represent our village, our residents, our industries, our businesses for what's best for them and this project is best for them," Poole said.

Because of Lee's dual representation, Poole said he made the decision several months ago not to have Lee attend village meetings until council decided what it wanted to do.

"The publicity of representing this CARE group to fight CEI I guess is more reputable and looks better for them (Taft Stettinius) on paper than representing Middlefield Village," the mayor added.

Former councilman David McDowell, who was in attendance at last Thursday's council meeting, said he knew had gotten to know Lee and O'Bryan well during his 23 years on council.

"I've always liked both of them," McDowell told council. "But the question I don't quite understand is why after all these years it (Lee's representation of CARE) wouldn't have been a matter that at least would have invoked further conversation (among council members)?"

Based on his review of past council meeting minutes, McDowell said he did not see any discussion regarding Lee's dual representation.

"I'm not taking a position pro or con on CARE, that's not my issue," he added. "But I am concerned that an attorney that has represented us all these years, and his firm and predecessor firm, would have chosen to represent another organization where there could be a potential conflict of interest between his efforts and interests of the village and village residents."

Weir also said there is a question whether Lee's dual representation was brought up sufficiently with council.

"I don't recall that being discussed," he added. "It's kind of sketchy. Nobody really knows for sure, but most of them are saying they do not remember that being discussed."

McDowell also said he understood there probably was some sort of Chinese wall to avoid conflict of interest problems, but he still was concerned that because of Lee's position as a senior partner he could exert undue influence regarding interests applicable to the village.

In response to McDowell's comments, Cornet said that Lee's ethics were above reproach and that any suggestion he would exert undue influence in the matter is unfair.

Weir said he was sure that when Lee got involved with CARE he thought there was no conflict of interest--and probably still felt that way, "but it kind of evolved into a conflict of interest once the village got involved with the whole matter."

He added: "The conflict came when all the manufacturers and everybody started bringing up the issue that they didn't feel it was right that the village's solicitor was representing a group that was in direct opposition to what their needs were. So, that's kind of how we ended up in it and that's kind of how the whole conflict got started. So, initially, no there was no conflict, but it certainly did work into one."

Weir said he is not sure what council will do with any proposals received by the Oct. 10 deadline.

"Once Oct. 10 gets here, we'll see what we have and then council will review all of them and probably set up some sort of interviews with any prospects and they'll decide from there," he said. "I guess it depends on how those RFPs come in. If they get somebody they're interested in they may change and, then again, if they don't they'll probably not change. There not under any obligation to do anything with them."