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A legal fee by any other name

GENE JALESKI
Guest Columnist
opinion@lbknews.com

The town’s attorney fees may become a thorny problem. Not only are Longboat town government legal costs 30 percent higher since the Key Club filed for permission to expand its facilities and increase density, there now appears to be a question as to what the taxpayers are paying for, and what is being charged to the Key Club. Let me explain.

In response to my recent letter to Commissioner Jack Duncan concerning legal costs, I received a lengthy and thoughtful response from the commissioner. Much of what is contained in our exchange has been printed in this paper, so I will not belabor the gist of the two letters, save for the question of who should pay for what. And on this issue there appears to be a disconnect from what was explicitly stated by the Key Club at the quasi-judicial hearings, and what is now the position of at least one commissioner.

Commissioner Duncan contends that work currently being done on the Comprehensive Plan by the commission, and its legal advisers, is unrelated to the Key Club application, and is not billable to the Key Club. Apparently this includes work on the FLUE — future land use element — of the Comprehensive Plan. I find this difficult to reconcile, given that a complete review of our Comprehensive Plan was conducted by the town, the Planning and Zoning Board and the Town Commission as recently as 2007. Several of the current commissioners were either on the Planning and Zoning Board or on the commission at that time and saw no need to revise the FLUE. The only thing that has changed since 2007 is the Key Club ODP application. Where were Messrs. Jim Brown, George Spoll, George Symanski, Walter Hackett and Dave Brenner in 2007 when it came to changes in the future land use elements of the Comprehensive Plan? During the extensive review and revision of the Comprehensive Plan in 2007, it appears these gentlemen saw no need for changes in land use. What changed in less than three years?

In the past the town has revisited the Comprehensive Plan on a 10-year cycle, which I gather is customary for communities such as ours. Now the commission has decided there is an urgent need to make major alterations and revisions to the Comprehensive Plan and numerous building codes only three years since the last commission review. Why, if not solely for the sake of the Key Club? Are there other developers who are requesting radical changes in density and building height we do not yet know about?

Looking at the town attorney’s billing records, it is apparent that Mr. Persson’s law firm has done and is doing considerable work on the Key Club issue. There are even direct billings from Mr. Persson’s firm to the Key Club, as well as many billings to the town for work on the Key Club. Have any of Mr. Persson’s invoices to the town for work on the Key Club been billed to the Key Club? It is difficult to understand the direct billings. Do they constitute a client-attorney relationship between the Key Club and Mr. Persson’s firm? Is it the town attorney’s place to decide what is billable to the town and what is billable to the Key Club? Could this inadvertently create a conflict of interest?

I have not examined each and every line item in Mr. Persson’s invoices to the town, but the ones I have randomly looked at are replete with references to DCA litigation and communications with Ms. Patton and Mr. Patterson, both attorneys for the Key Club ODP application. I am unable to see why the taxpayers should pay for conversations with the Key Club’s legal staff. Likewise, the DCA process the town is dealing with is the direct result of ordinances 2009-25 and 2010-16, which were written and submitted to the town by the Key Club staff for the KC ODP application. The latter was created as a means of lowering the bar on the legal issues confronting the Key Club application. I voted against every provision of ordinance 2010-16. I felt that each element of the proposed ordinance violated the future land use element provisions of the Comprehensive Plan. I still do. Why are the taxpayers expected to pay for a year or more of DCA litigation for something dreamed up by the Key Club legal staff?

There may be parts of the Comprehensive Plan that can be visited that are unrelated to the Key Club ODP application. However, it is difficult to believe that any work being done on the FLUE does not directly affect the Key Club ODP application. Additionally, I do not believe that the current commission would be looking at the FLUE, as they did not look at it in 2007, were it not for the Key Club application.

At least that is the perception I and others share at present. There are simply no other pending situations that require such a broad alteration of our future land use laws. Perhaps one could speculate that the properties at the north end, including Whitney Beach Plaza, might like to have more relaxed land use ordinances. But then comprehensive plans are not supposed to be changed just to appease a developer. The owners of Whitney Beach Plaza have not yet come forward with any land use proposals, so all the work being done on the Comprehensive Plan may be for naught.

Perhaps the town needs to define to the taxpayers the rules being applied to the sizable legal fees that are being submitted by Mr. Persson’s firm and Ms. Stroud. There is a need to differentiate those legal services that are being paid by the taxpayers from those services being passed along to the Key Club. I gather that work presently being done on the future land use element (FLUE) of the Comprehensive Plan by town and legal staff is not being considered as billable to the Key Club. I do not understand how this can be so.

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2 Responses for “A legal fee by any other name”

  1. James Armstrong says:

    I think it is time to stop sticking our heads in the sand and pretending a problem does not exist. As with any other corporation, whether it be public or private, the responsibility should be to the shareholders. Taxpayers of this community have elected the commisioners to protect and serve the interest of the public. All of these unanswered questions are a prime example of the commision’s failure to perform their required duties.

  2. Bob Smith says:

    Am I supposed to get the impression that Mr. Persson is (a) over charging; (b) has a conflict of interest;
    (c) this joint payment practice is not beneficial to LBK, because that is the impression I have formed after reading this article.

    I think it is time LBK hires a in house attorney at $120k a year with a assistant at 60k and a secretary at 45k. For $225k you can have your own Law Dept.

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