City Attorney appointment raises questions
<p>Libby City Attorney David Tennant.</p>
By BOB HENLINE
The Western News
Libby Mayor Doug Roll’s appointment of Kalispell-based attorney David Tennant and the firm of Kaufman Vidal Hileman Ellingson PC as the city’s new attorney has raised questions of proper process from at least three members of the Libby City Council.
Roll offered Tennant a three-month trial contract Feb. 3, 2016. Tennant signed the oath of office Feb. 11, 2016, which was filed with the Lincoln County Clerk and Recorder’s Office pursuant to Montana law.
Under the contract, the firm is to be paid $5,850 per month and is also to be provided office space with a telephone line and Internet service. The new contract represents an increase from $5,633.33 per month from the previous contract with Doney Crowley PC and lead attorney R. Allan Payne. The new contract also eliminates a $200 per month offset charged to the firm for rental of office space.
The council has met on three separate occasions since Roll’s appointment of Tennant, yet no discussion of the appointment, nor of the contract, has taken place with the council. Tennant was present at the council’s March 7 meeting, sitting at Mayor Roll’s left during the proceedings.
Council president Brent Teske said he was disappointed the contract and appointment were not on the council’s March 7 meeting agenda.
“I fully expected that contract to be on the agenda at the last meeting,” Teske said. “It’s just another one of those things Doug [Roll] has decided to take upon himself.”
Section 7-4-4602 of Montana Code Annotated raises two issues with Tennant’s current appointment by Mayor Roll.
“7-4-4602 Appointment -- term of office. (1) The city attorney must be appointed by the mayor, subject to approval by the city council. (2) The city attorney shall hold office for two years unless suspended or removed as provided by law.”
First, the contract specifies an employment term ending May 3, 2016, but also stipulates a one-year automatic renewal unless termination is requested in writing by either party with one month prior notice.
“The firm’s employment terminates on May 3, 2016, provided such termination is requested in writing by the city or the firm,” the contract reads. “In the event no termination is requested in writing, this agreement shall renew for a one year period. The agreement will continue to be renew [sic] annually unless terminated at the request of either party at least one month prior to the date of renewal. Upon request of the city, the firm will provide 30 days of transition services.”
Second, the council, although required by law to do so, has not approved the appointment.
Tennant said even though the council has not approved the contract, and it has not been signed, both the contract and the appointment are valid under Montana law.
“We have a contract evidenced by a writing,” he wrote in an email to The Western News. “I am not sure if the mayor signed it or not. The statute of frauds does not require signatures in a contract like this...There was a valid appointment and I contend we have a valid contract. I would argue the mayor was at least an ostensible agent of the city and had the power to bind the city in the contract. Also, there is no time limitation in the statute for the council’s approval. One could argue the appointment is valid until the council disapproves the appointment.”
Councilwoman Dejon Raines also expressed concern with the manner of Tennant’s appointment. She said she received a copy of the contract in her box at City Hall, and anticipated it being on the meeting agenda.
“I’m not quite sure why it wasn’t on the agenda,” she said.
Newly-elected councilman Brian Zimmerman said he worked closely with Mayor Roll during the month of January to help find a new City Attorney, but was unaware of Tennant’s appointment until after it had taken place. Zimmerman said he spoke with Tennant after the March 7 meeting and was pleased with how he is handling the duties of the City Attorney’s office.
“I spoke with Darren Short,” Zimmerman said. “He said Tennant is doing a good job with the city court matters, the police are happy with the progress.”
Libby Police Chief Terry Watson echoed similar sentiment.
“He’s doing a good job in court,” he said. “He has a good courtroom presence. We’ve had one jury trial and he was successful.”
Tennant said he has been working to get the city’s prosecutions caught up, as prosecutions did not take place during the month between the end of Payne’s appointment and the hiring of Tennant. While there is nothing overdue, he said he anticipates the office being into a normal workflow within another month.
“Nothing is behind schedule,” he said. “Within another month or so, I expect the workload to be back to ‘normal,’ whatever that was.”
Tennant said he is enjoying the work so far and looks forward to continuing after the trial period.
“I enjoy working with everyone I have met,” he said. “They seem very appreciative of what we are doing.” When asked if he anticipated renewing at the end of the three months he said, “We do.”