Payne files response to Neff, Olsen complaint

Libby City Attorney Richard A. Payne has filed his response to a complaint made against him to the Montana Office of Disciplinary Counsel. The complaint, Payne asserts, “is without a basis in law or fact.”

Libby City Council members Allen Olsen and Gary Neff filed the complaint in November 2014, alleging violations of the Montana Rules of Professional Conduct with regard what they alleged was Payne’s failure to inform the City Council of pending litigation matters and what they perceived as potential conflicts of interest regarding his representation of the city, Lincoln County and the Lincoln County Port Authority.

Payne’s argument against the complaint was to challenge Neff and Olsen’s right to file the complaint at all, as they are not and have not ever been his clients.

“However, neither Mr. Olsen nor Mr. Neff, individually or jointly, are not have ever been my clients and, as such, they do not have standing to file a Professional Conduct Complaint against me alleging violations of duties owed to a client,” Payne wrote in the response. “The City of Libby is the client of Doney Crowley P.C., and as Mr. Olsen and Mr. Neff are only two of six City Council members, they do not have the authority to speak for the City or the Council. The Mayor and a majority of the Council did not join, nor do they support, this complaint.”

Payne provided letters from Mayor Doug Roll, along with council members Barb Desch and Peggy Williams and Dejon Raines to support his statement.

In their joint letter to the Office of Disciplinary Counsel, council members Desch and Williams took specific issue with Neff and Olsen’s complaint that Payne did not adequately inform the City Council of pending legal matters.

“Allan Payne has on numerous occassions offered to consult with individual members of the City Council regarding questions they might have regarding his representation of the City,” they wrote. “We have taken advantage of this offer and Mr. Payne has always explained pending litigation matters to our satisfaction.”

Councilwoman Dejon Raines said she was not informed about the subpoena referenced in the complaint, but attributed the lack of information to a breakdown of communication among the city’s elected officials, not to Payne.

“To my knowledge Allan Payne/Doney Crowley P.C. was in communication with both the Libby Mayor, Doug Roll, and the Libby City Council President, Bill Bischoff, regarding the subpoena requiring the production of documents related to a lawsuit between the Lincoln County Port Authority and Stinger Welding,” Raines wrote. “At the time the subpoena was issued, I was not informed by the Mayor or the Council President as I understand Councilman Olsen was not informed either. I do not hold Allan Payne accountable for this, but rather acknowledge it as an example of the breakdown in communication between the city’s elected officials. The city’s poor communication between elected officials has much room for growth and improvement. Allan Payne, nor any future attorney, should not be accountable or responsible for the elected officials’ flawed communication.”

Payne defended his decision to not inform the City Council regarding the subpoena and motion for contempt filings on two primary grounds. First, he said he consulted with the mayor, which satisfies the notification and consultation requirement Neff and Olsen allege he violated. He also argued the City Attorney is, by charter, an officer of the city, and as such is empowered to act on the city’s behalf regarding legal matters.

“The complaint alleges violation of Rule 1.2(a) by failing to consult with the City Council with respect to responding to the Stinger subpoena and the motion for contempt,” Payne wrote. “This allegation is based on the mistaken belief that the City Council is or should be informed of every subpoena served on the city and then direct the City Attorney as to how to respond. The City Council meets once a month to set policy for the city... The city receives numerous subpoenas or other information requests which must be responded to in a timely fashion. As the city’s legal officer, the City Attorney has explicit and implied authority to act on the city’s behalf. See Montana Code Annotated 7-4-4604. As the sole officer of  the city authorized by law to represent the city in court, the City Attorney has the implied authority to respond to subpoenas issued to the city. When the City Attorney also consults with the mayor, the client’s chief executive, with respect to the city’s response to a subpoena and receives his concurrence, it cannot be said that the City Attorney has usurped the role of the client in responding to the subpoena.”

Payne also responded to the complainants’ conflict of interest allegations with regard to Heather McDougall P.C. and Doug Roll.

In the complaint, Neff and Olsen claimed Payne admitted to a conflict of interest with regard to a city case and, as a result, contracted Heather McDougall P.C. to represent the city in the matter. The complaint does not specify how Payne’s resolution of the apparent conflict is a violation of the Rules of Professional Conduct.

Payne said the conflict of interest was not with Heather McDougall P.C., but with a defendant in a criminal case and to avoid any impropriety, he decided to exercise authority specified within the city attorney contract to resolve the matter.

“The complaint’s allegation of a conflict of interest with Ms. Heather McDougall, a former City Attorney for Libby, is particularly opaque,” Payne wrote. “Neither Ms. McDougall nor her law firm have ever been my clients. Moreoever, the fact that I specified in the City Attorney contract how conflicts of interest would be addressed, and then followed the procedures in the one instance when Ms. McDougall was hired to represent the city (as I personally knew the defendant in a criminal case), demonstrates professionalism and attention to potential conflicts.”

In defense of his relationship with Mayor Roll, Payne said not only has he never provided the mayor with legal advice, but even had he done so it would not represent a conflict of interest as there is no issue between the mayor and the city. He further stated his friendship with the mayor enabled more efficient communication, thus enhancing his ability to properly represent the city.

Payne characterized the complaint as a political maneuvering, calling it, and the manner in which it was submitted “irresponsible” and “malicious.”

“It now appears that Mr. Neff and Mr. Olsen’s true motive in filing the complaint was not to question my professionalism, but to score political points against the mayor and force me to accept less money for my services,” he wrote.

The Office of Disciplinary Counsel provided Payne’s response to Olsen and Neff Dec. 22, allowing them 15 days from that date to respond to the factual basis of the response. The office’s investigator will decide, based upon the complaint and responses, either to dismiss the complaint or forward it to the Commission on Practice Review Panel for further review.