Portland charter commissioners debate hiring independent counsel

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Several members of the Charter Commission expressed the desire last week to replace their city-provided attorney with a hired independent legal counsel.

The change was proposed by Commissioner Zachary Barowitz during the panel’s second meeting, where there was a carry-over discussion from the group’s June 28 meeting about hiring a secretary to take meeting minutes.

The city will not provide someone to record the minutes, and commissioners don’t believe it is fair to require any member to have to take detailed notes when they are also expected to be participants in the conversations.

Portland attorney James Katsiaficas. (Courtesy Perkins Thompson)

“I think it’s unfair and bordering on disenfranchising to require a commissioner to take notes,” commission Chair Michael Kebede said.

Commissioner Robert O’Brien, who served on the last Charter Commission, said the city did provide a person to take notes for that panel, but that person was also the legal counsel who was hired by the city.

Kebede and several other commissioners plan to meet with City Manager Jon Jennings about using the commission budget if they don’t get a satisfactory decision from the city finance director. Kebede said the commission has the authority to spend $1,000, but there is an additional $74,000 available in the corporation counsel’s budget, and it is unclear if the commission has the authority to spend that as it sees fit.

“I want to give the city a chance to respond to our budget requests,” Kebede said.

Barowitz said it is important for the 12-person panel to be able to hire its own staff.

The city hired James Katsiaficas of the Perkins Thompson law firm to provide legal counsel to the Charter Commission. Katsiaficas, responding to Barowitz, said according to his contract his client is the city of Portland.

“It’s the process of vetting, making sure there’s no conflict of interest or appearance of a conflict of interest,” Barowitz said. “If the last Charter Commission didn’t think it was a priority, that was their decision. But it’s certainly not one this (Charter Commission) needs to yield to.”

Commissioners Marcques Houston and Nasreen Sheikh-Yousef agreed with Barowitz.

“I was under the impression we would be hiring our own, independent lawyer,” Houston said.

Sheikh-Yousef said there has to be a clear separation of power between the city and commission, and commissioners need the ability to hire an attorney they could trust. She said that wasn’t a personal attack against Katsiaficas, but she wants someone who will work directly for the commission and not the city.

Commissioner Marpheen Chann, however, said the discussion wasn’t a good use of the commission’s time and was “opening up a can of worms that takes us away from what the true focus of the commission is.”

“I think spending time on rules and things of that nature makes sense,” Chann said. “I think these discussions on which attorney are we going to trust or not trust leads us down a rabbit hole where we’re taking up valuable resources.”

After Barowitz earlier in the meeting moved to require commissioners to “act in good faith,” Chann said making an assumption about whether a city-hired attorney could properly represent the commission was an act of bad faith, without any clear fact-finding or evidence that Katsiaficas couldn’t be trusted.

“I would like us to give (Katsiaficas) a chance before we jump the gun and go through the process we don’t know to hire another attorney we assume would be independent,” Chann said. “We’re making a lot of assumptions about character, people acting in bad faith, and I think we need to slow down and actually look at what’s in front of us and see if we can make it work.”

Ultimately, no action was taken regarding Katsiaficas, and Kebede reiterated he wants to hear from city staff about the panel’s budget and ability to hire staff.

In addition to the staffing discussion, the commission agreed on a schedule of 6 p.m. meetings every second and fourth Wednesday of the month. Its next meeting is a July 28 public hearing, which will be held remotely.

After that, commissioners will have to adopt a set of rules if they wish to continue the ability for remote public participation, and will otherwise begin meeting in person.