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County Council Litigation Subcommittee Nixed

on October 5, 2017 - 10:15am

Los Alamos County Council, from left, Chair David Izraelevitz, Chris Chandler, James Chrobocinski, Rick Reiss, Pete Sheehey, Vice Chair Susan O’Leary and Antonio Maggiore. Photo by Leslie Bucklin/LAC


Los Alamos Daily Post

An announcement by Los Alamos County Council Chair David Israelevitz at the end of the Sept. 26 Council meeting prompted a lengthy discussion with his fellow councilors and has ultimately been nixed.

Under the Council Chair’s Report item on the agenda, Israelevitz announced that a subcommittee was being started to work with County Attorney Alvin Leaphart on items related to litigation that “don’t rise to the level of a full executive session”.

Israelevitz said he appreciated that Councilors Rick Reiss, Chris Chandler and Pete Sheehey had agreed to serve on the subcommittee.

“When there are items that require full review by Council it will come up but there was a need for some quick feedback to the County Attorney on certain items,” he said.

Council Vice Chair Susan O’Leary said she was opposed to the creation of a subcommittee.

“I think that we all have a responsibility to be involved in legal issues that affect the County. I don’t understand how a line is going to be drawn. Who is going to make a determination of what is going to go to the full Council or the subcommittee? I think this is not the right approach,” she said.

O’Leary said she wanted to make sure the County Attorney is aware that the subcommittee does not speak for the full Council and that the creation of a subcommittee with only three councilors on it was not okay with her.

Councilor Antonio Maggiore said he felt similarly to O’Leary, that although he had nothing against Reiss, Chandler and Sheehey, that he often sees things the same as they do.

“I think that’s why we have an executive session. I’m always happy to make myself available to come in early for the executive sessions,” he said. “I object to it.”

Councilor James Chrobocinski said he shared the discomfort with his fellow councilors who had expressed concern.

Councilor Pete Sheehey said that as a member of the subcommittee he has absolutely no intent to speak for anyone much less the Council.

“I believe your intent was to have a subcommittee to hear lower-level issues to minimize the number of closed sessions that we have to bring the entire Council into,” Sheehey said. “I would say bring it to a closed session, but there is a level of legal discussion I think which I’m quite willing to try working with the County Attorney to see if we can work. It seems that recently we’ve had an awful lot of closed sessions. If we can get more efficient with everyone’s time with that, I’m willing to give some of my time to the subcommittee without tromping on anyone’s prerogative or speaking for anybody.”

Chrobocinski said the problem he has is that he wants to know what is going on.

“The subcommittee is going to be one more step where already those of us who aren’t chair or vice chair aren’t always at every leadership report, this is just another block to good community to the other four of us to knowing what is going on in the County,” he said. “I don’t mind going to the closed sessions. When we have legal issues I feel like all of us need to know about it”.

“And yes, I guess similarly I feel that, yes, you’re saying that you’re not going to be making decisions but just the decision of whether it goes forward or doesn’t go forward is in itself a decision and if Alvin (Leaphart) – I have great confidence in Alvin as a lawyer – If Alvin feels that something should come before us, it should come before all of us, and if Alvin has questions or issues on that it should come before all of us. That’s ultimately where I think I stand on that,” Maggiore added.

Israelevitz said he wanted to clarify the current status. He said first of all there are procedural questions that are just addressed by the chair in discussion with the County Attorney.

“In my view there is a level between communication just between the chair and the County Attorney and a full executive session. If we think about when an executive session is called, it’s called at the request of the County Attorney. Or usually that is the call of the County Attorney, so the fact that the County still has that responsibility frankly to call for a full executive session should that be required seems to me provides boundaries for this,”Israelevitz said. “And I can share the charge to the rest of the Council. I shared it with the vice chair as well as the three members of the committee. They are items that are just informational so there is no feedback in a sense that’s required by Council. It’s just more efficient for the County Attorney to provide that information in a closed session.”

“We thought that the more efficient way and better use of our time would be for the County Attorney to share that individually with councilors so that there’s no issue of time management. We have very limited time, typically an hour, sometimes half an hour for some of these complicated issues,” he continued. “There is, on the other hand, a full executive session where there are questions that fall under pending litigation and a question of whether there are strategic decisions that need to be made, but I felt that there were areas in between where it didn’t require a full executive session. And on the other hand, it was not just a trivial question that should just be answered with a phone call.”

Maggiore asked Israelevitz if he or the County Attorney could provide an example or two of what these issues are.

Leaphart responded that in litigation sometimes there are strategic decisions or tactical decisions really that need to be made by the attorney and that typically tactical decisions are reserved for the attorney’s professional judgment and the larger questions are reserved to the client “through the means by which we go about things”.

“It would be helpful, a lot of times those tactical decisions have to be made fairly quickly and don’t provide the office the time to discuss the reasons they are making those tactical decisions with Council. We just have to do them based on our professional judgment,” Leaphart said. “The subcommittee would just allow me to keep some Council members informed of where these tactical decisions are leading to on a more real-time basis so the Council is updated on or at least the subcommittee is updated on certain day-to-day type things that come up quickly in litigation. I would be good to be able to discuss with a subcommittee of Council so they are apprised of that.”

Leaphart said that major decisions regarding settlements in cases, whether to bring suit, how to bring suit, how to respond to, whether to raise certain defenses in cases, generally those are discussed with the client.

“So it is those mid-level tactical decisions that the County Attorney has to make in short order in pending litigation. I just think it would be a better way to keep Council informed of those sort of day-to-day decisions we’re making as we progress in litigation because time constraints don’t allow us to have executive sessions on them,” he said.

Israelevitz said that “at this point the only tactical feedback is a one-on-one discussion so when the view is that we he are restricting information, what I’m trying to do is actually expand the decision-making process to a larger number of councilors of which I’m not one, so I thought it would be more appropriate to do that. I seems like we’re restricting information but actually I feel like we’re expanding information.”

Chrobocinski said Israelevitz thinks he is informing Council but that he is only informing three members of Council.

Leaphart said, “Due to the complexity of several pieces of litigation we are embarking on or involved with currently we will have many more executive sessions and that may be the appropriate way to go.  It is the Council’s decision as to whether to proceed with the subcommittee. However in those litigations we will have to make tactical decisions solely on our professional judgments because time constraints won’t allow us to communicate with all members of Council in an executive session.”

“I was merely seeking some opportunity to keep some of the Council informed as to the kinds of tactical decisions we are making and why we are making them,” he said. “I’ll tell you the timing seems bad on this because we just had an issue in out last executive session which we didn’t discuss for a reason that everyone remembers and this seems like a response to that. I think that is the reason for some of our uncomfortableness with this but I do think everyone should be kept apprised on what is going on.”

O’Leary told Leaphart she thought he needed to make the tactical decisions.

“I believe that’s part of your job. I appreciate that you’re trying to get input in an efficient way but I think the ramification of having a subcommittee is that you’re working with it exclusively on issues that other councilors don’t know about,” O’Leary said. “We are all part of your supervisory body. We all have to evaluate your performance. It creates an unlevel playing field among councilors in that regard and it could also potentially lead to a conflict, because you would have a subcommittee of individual councilors you’re working with more closely and you’re beholden to in a way that you’re not with other councilors.”

“I think my advice to address your issue of the timeliness you need in your decision-making is for you to just make the decisions at the tactical level and if you need a special session, then call one,” she said.

Councilor Chandler asked it what she was hearing was that it is better for the attorney to act on his own than to consult with councilors.

“The attorney has the authority to make tactical decisions and what I heard said is that he should just make them and not be concerned about consulting Council,” she said.

O’Leary responded, “What I am saying is when he needs to bring Council in on his decisions, to call a closed session and that he can do that. And if we expect him to make some level of tactical decisions, that’s part of his day-to-day job and that he’s evaluated on his effectiveness in making those decisions. Nobody’s looking over his shoulder in asking to have direct input into all his decisions. If he needs to talk to the Council for input on legal decisions, he should talk to the entire Council.”

“We’re not talking about legal decisions. Our attorney brings all legal decisions that need approval to our Council in closed session,” Chandler said. “What I see being tested by the attorney are, sometimes our pleadings  are viewed as being political documents or communicative documents and he needs guidance as to the tone of some of those pleadings. Those pleadings sometimes are on a timeline not conducive to a whole Council meeting. Those are the kinds of things that I expect him to be bringing to the subcommittee.”

Sheehey said he understands the concern and suggested changing the composition of the board randomly with each issue so that no power is put into a single subcommittee. He said he looked at it as an attempt to expedite the work of the County Attorney and give Council’s help without trying to monopolize power in any way.

Maggiore proposed rotating one Councilor on and one off each month.

“It’s a responsibility we all share equally. Ultimately, everyone deserves to have a voice,” he said.

Israelevitz said that with all due respect, he did not think the rotation was workable and that it would not provide any continuity.

Leaphart said either was fine with him and went on to reiterate that when local governments are involved in litigation it is a common practice to engage a subcommittee in this manner to work with the attorneys on the case to give more input.

“It doesn’t always lessen the number of executive sessions, it just allows the attorneys to seek some feedback from representatives of their client,” he said.

Israelevitz said he wasn’t willing to give the County Attorney the latitude to pick who comes on and off the subcommittee. Chandler asked for help understanding what problem the rotation would be solving.

“For the decisions being made or the guidance being given in a particular three-month period, it isn’t including the other Councilors,” she said.

Maggiore maintained it solved the problem over time because the assumption is that Leaphart was still going to be calling executive sessions for decisions.

Israelevitz said he thinks he understands that there’s the appearance and some people may feel there’s the actuality of privileged knowledge being shared only with a fixed number of councilors and this way the privileged information is rotated around and the actual decisions would still only be made by three councilors.

Leaphart said the committee idea was not to surrender the attorney’s decision-making authority to his client or the representatives of his client.

“That would be a derogation of some of my duties in the tactical decisions and how the litigation is being handled. I have to exercise my professional judgment in those situations, but more along the lines that those decisions that are reserved to the attorney as part of his professional obligations to his client would be preserved and having the opportunity to explain some of that and then get some feedback on those from the subcommittee. Those are the kind of decisions I would bring to an executive session to be made anyway,” Leaphart said. “We can have more executive sessions or I can discuss more of that with Council ... more along the lines for the attorneys to give feedback ... as part of his duties to his client. The decisions that the client makes in litigation usually don’t go to the means by which they are achieved, … they go to the ends and the objectives that the client ... whether to settle a case, how much to settle it for ... whether to appeal a decision, whether to not appeal a decision.

“But in these cases involving local governments a lot of those strategic decisions that I am obligated to make on behalf of the County do have a political aspect to them. Those are the kinds of decisions that may bear a discussion with a subcommittee. That’s the aspect I am addressing ... especially with complicated litigation that has a political aspect to it that’s exceptionally public.”

Chrobocinski said that in terms of the political aspects of a case, all seven Councilors have very different political ideas.

“I just think this whole idea of a subcommittee is pretty ill-conceived. You’re not getting the feedback of what this entity is as a whole. This entity as a whole is one. You’re not getting what we are, because we are each one-seventh of the whole and if you don’t have the whole, you don’t know what you’re getting.

O’Leary agreed.

Leaphart said the decision is the Council’s and that he doesn’t mind either way.

“There was no intent on my part to deprive any Councilor of any sort of needed information over litigation. It was merely an idea that I thought could lead to better communication amongst Council about some of the nuts and bolts that go on in sort of the more public litigation that we get into. If it’s Council’s desire to just have executive sessions, I am fine with that,” Leaphart said. “How a client wants to be informed is the client’s decision and I am fully respectful of that.”

Maggiore said it would be his preference to table the subcommittee until all of Council could meet with Leaphart and have him walk them through specific examples because it was clear the examples could not be aired at the Council meeting.

“We will all be a little better briefed as to what sorts these decisions are. We’re talking in vague ambiguities and it’s not helping the issue at all,” he said.

Israelevitz concluded the discussion by saying he was withdrawing the approach and would have some more discussion.

The Los Alamos Daily Post contacted the New Mexico Attorney General’s Office this week to determine whether the subcommittee proposed by Israelevitz complies with the New Mexico Open Records Act. The AG's Office response states, “based on the limited facts provided to the Attorney General’s Office, if the Los Alamos County Council is delegating its decision making authority to take certain legal action on behalf of the County Council to a subcommittee, the subcommittee would be subject to all the provisions of the Open Meetings Act, including the notice and agenda provisions.”

Los Alamos County Manager Harry Burgess was unavailable for comment prior to press time. Leaphart further addressed the issue Wednesday evening.

“The idea of the litigation subcommittee was simply an idea to assist in keeping Council appraised of how litigation was proceeding especially when there are rapid developments in litigation, and get some quick feedback,” Leaphart said. “There is nothing untoward about that. However, I believe once the idea was brought out for a full discussion it became rather clear rather quickly that it was not a very good idea, and the concerns of the Council members are well taken. Going forward we will continue as we have with our communications with Council over litigation matters without a litigation subcommittee.”