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Mayor: Duo acted unethically

FAIRMONT — What was advertised as a Fairmont City Council work session to discuss the City Attorney and legal services for the city became a 90-minute skirmish Monday, as elected officials debated the merits of in-house counsel versus contracted legal services.

A major point of contention was the action of two council members — Randy Lubenow and Tom Hawkins — who met recently with Elizabeth “Libby” Bloomquist, who has served as City Attorney for 30 years, to inform her that her services might no longer be needed.

At the start of the session, Mayor Debbie Foster read an April 4 email sent from Hawkins to Mike Humpal, city administrator, who then forwarded the email to the rest of the council members.

The email stated:

“Councilor Lubenow and I went to see Libby today. We informed her that we were going to propose to the council that we will be changing our attorney services from in-house counsel to contract, effectively terminating her. We wanted her to know before it came to the council. There had been discussion at one time about doing a RFP (request for proposal) before we decide. My research has indicated that local attorneys would be reluctant to apply when Libby is still the attorney. Therefore, the cleanest way is to make the decision first. In the meantime, Mike would like to make an appeal about the benefits of keeping in-house counsel. I am fine with listening to his proposal.”

“Two council members have no authority to do anything,” Foster said.

She then polled the remaining council members — Wayne Hasek, Bruce Peters and Ruth Cyphers — to see if they had prior knowledge of the meeting with the City Attorney, and all answered no.

“So two council members went and told somebody that they were going to be terminated with two votes,” Foster said. “You don’t have any authority to do that. Again, two council members doing what happened, it’s unethical.”

“My question is, what were you planning on doing with 50 to 70 open cases if you were going to just cut her loose? What was your plan?” Peters asked, referring to the City Attorney’s responsibility to prosecute criminal complaints.

“I think it is appropriate,” Hawkins said about the meeting with Bloomquist. “I got advice on how to proceed, and I think it is appropriate for two council members to take an action. You might believe it’s unethical, but I don’t think it’s unethical.”

Hawkins said he and Lubenow did not intend to tell Bloomquist she was terminated, that it would be a council decision, and they were ready to go to the council for a vote to move to contract services.

Foster said the council had never discussed the issue of contract legal services versus an in-house attorney. While the council has gone into closed session for the City Attorney’s annual performance evaluation, Lubenow has never been a part of those evaluations, she said.

“Two people can do nothing, so what made you two so confident to tell Libby she’s going to be effectively terminated?” Foster asked.

Hawkins denied saying Bloomquist was going to be terminated, that her employment would end only if the council voted to contract for legal services, but Foster referred to the email that used the phrase “effectively terminating her.”

Hawkins reiterated that the position would be terminated only if the contract proposal was passed by the council.

“But why would you do that to somebody? Why would you put somebody through that, whether you can legally or not? You don’t know how the council is going to vote,” Foster said.

“I thought it was a courteous thing to do, and she thanked me for telling her before we told anybody else,” Hawkins said. “I was advised to do that so I thought it was the right thing.”

“Who advised you?” Foster asked.

“People that I get advice from. People who I’ve met over the years on City Council. I get advice from other people. I’ve told you that many times,” Hawkins said.

He added that he thought it was not appropriate to hold Monday’s work session prior to the City Attorney’s review.

“Why would you think it’s not appropriate to get the facts before we have a vote?” Peters asked.

He then questioned where Lubenow, who joined the council in January, came up with this decision during his short tenure.

“Tom was very adamant about this,” Lubenow said. “He had talked to me about going to contract, but I don’t know if that’s the way to go or not. Tom seemed to want to push this forward, and I agreed with Tom that it was best to let Libby know of Tom’s intentions so I went along. Whether that is unethical or not, I don’t know.”

“The way I interpreted the email was that it was a done deal,” Hasek said.

“How can it be a done deal until we vote?” Hawkins said.

When Peters said he had heard in the community that Hawkins claimed to have three council votes to support his proposal, Hawkins vehemently denied it.

“Then it was a pretty bold move if you don’t know if you have three votes,” Foster said.

Hawkins called his efforts for contract services a personal desire that was best for the city. He defended his actions with Bloomquist as “the right thing to do” before putting his proposal to change the legal services up for a council vote.

“The advice that I got was exactly that,” Hawkins said.

He said the city needs to conduct an independent analysis as assessment of the specific legal needs of every department, including determining the number of hours per year per department broken down by month. Then there would be a more formal review of conditions for comparison.

“Then the council can conduct a more detailed survey to determine specific legal needs for the city of Fairmont,” Hawkins said. “We do not know what services we need. We can’t compare ourselves to other cities with the information we have right now.”

Six of the city’s department heads and Capt. Eric Tonder of the Fairmont Police Department addressed the council. Some had worked in communities that did not have an in-house attorney. All spoke of the efficiency of having an accessible in-house counsel and how it enabled them to be more productive in their jobs and how their work was more timely.

Humpal called Fairmont an “outlier” because it does not have a human resources department. Bloomquist also handles human resources issues for the city’s 100 full-time, part-time and seasonal employees, including reviewing the city’s three labor union agreements.

“You have heard people say it (in-house counsel) is convenient. It’s timely. It’s efficient,” Humpal said. “I want to say this. It’s financially practical. Based on looking at 20 similar communities, our cost of legal services are very much in line with others.”

Humpal had researched other communities in the state in 2014 and 2017 to determine the method of legal services and the cost of those services, and the information showed Fairmont to have comparable if not lower legal costs. But Hawkins dismissed the information, instead citing the small percentages of Minnesota communities with in-house counsel as proof that contracted services would save the city money.

“We owe it to the taxpayer to look at what is the most cost-efficient services,” he said. “Personally, in the research I’ve done and the number of people I’ve talked to, I think we’ll save a lot of money by going to contract. Others have said, if you get a (law) firm, you can get more expertise than from one person. One person cannot cover all the areas that we need, according to a lot of people.”

And the only way to know that, Hawkins said, is to do an in-depth assessment of which departments need legal services and break down how many hours per month they would need those services. Then the city would request proposals from outside attorneys to determine cost.

“Then we can decide,” he said. “We can’t compare ourselves with vague information.”

Humpal defended his research, saying the information he offered was what other cities actually spent. He said providing the hourly data that Hawkins requested would take much more time that was allotted before the work session.

“I don’t know why we are going to pile more work on our city administrator when it is painfully obvious to me that we are where we should be,” said Peters, referring to the department heads’ statements.

“It’s not obvious. It is vague. We do not know. We do not know. We do not know. Nobody in this room knows until we have an assessment, we look at the details and do a request for proposal,” said Hawkins, adding that the department heads do not know for sure and only offered their opinions.

“We need to do it the way I stated, the study and the research. We need to do an assessment,” he said.

Foster wrapped up the session by saying she does not disagree with finding the most cost-effective form of legal services, which is the responsibility of the council.

“What I do disagree with is how this was handled,” she said. “We have an employee that has given 30 years to our city. We have two council members that took it upon themselves to speak and apparently feel they had enough votes to do what they did.”

“That’s not true. Do not lie. Do not lie. You are lying, and I’m going to challenge you on that,” Hawkins said.

Foster then re-read the email, again saying that the action of Hawkins and Lubenow was wrong and unethical.

A vote on in-house versus contract legal services will not be on the council’s April 22 agenda, but the council will go into closed session for Bloomquist’s performance review.

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