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HomeMy WebLinkAbout2002.0729.TCSEM.Minutes • MINUTES OF THE SPECIAL AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL July 29,2002 Mayor Beydler called the meeting to order at 10:00 a.m. ROLL CALL - Present for roll call were the following members of the Fountain Hills Town Council: Mayor Jon Beydler, Vice Mayor Leesa Fraverd, and Councilmembers Kathleen Nicola, Michael Archambault, Susan Ralphe, Rick Melendez, and John Kavanagh. Also present were Rick Cohen, Town Attorney Bill Farrell and Director of Administration/Town Clerk Cassie B.Hansen. AGENDA ITEM #1 - CONSIDERATION OF RETAINING ADDITIONAL LEGAL FIRM(S) TO REPRESENT THE TOWN OF FOUNTAIN HILLS IN THE HOFFMAN/ROBINSON LITIGATION. Mr. Farrell reviewed that last week the Town received a request to provide Hoffman/Robinson litigation files to Attorney Jerry Strict (a former Maricopa Superior Court Judge) for his review. He had responded to Mr. Strict that if he wanted to participate in the meeting, the Town would have to retain his law firm ahead of time. Mr. Farrell had copied files contained in his office. He noted that Gust Rosenfeld's office was in the process of physically moving their office so it was difficult for them to make a copy of everything.• He found out this morning that Mr. Strict would not be present for the meeting but the Town might hear from him in the future. Mayor Beydler acknowledged talking with Gerald Strict this morning. Mr. Strict had reviewed the documents sent to him from Mr. Farrell's office. Mr. Strict had noted that the documentation received was not complete and that he knew that Fred Rosenfeld was unavailable due to his office move. Mr. Strict had been cautious but indicated that he was not comfortable making any recommendations or offering the services of either himself or his firm. He did not feel he had enough knowledge as to whether or not they could be of any benefit. Mayor Beydler stated his reason for contacting Mr. Strict was a conversation held previously with Fred Rosenfeld. Mr. Rosenfeld made a specific statement that he did not think his firm should continue to represent the Town in this case based upon what he perceived to be a conflict. Mr. Rosenfeld's conflict came from the fact that the Town ‘r had entered into a phase of settlement negotiations. Mr. Rosenfeld felt he could not represent the Town in settlement negotiations at the same time that he represented the former council members and some current council members as individuals who might not be part of that same settlement approach. Mr. Rosenfeld pointed out that he did not have any authorization from those individuals to proceed and he would have to talk with Steve Guttell. Mr. Rosenfeld recommended to Mayor Beydler that he might want to entertain options in the event that Mr. Rosenfeld's firm was unable to continue. Mayor Beydler said this morning Mr. Farrell had provided information that Gust Rosenfeld has changed their minds. Mr. Farrell responded no. He clarified that Gus Rosenfeld could not withdraw from the case. The trial starts two weeks from tomorrow and without the consent of client and an affidavit from a new law firm saying that they would not miss the trial date, no judge would let any law firm out of any litigation once they've gone this far in the process. If someone was going to substitute, they would have to make an avowal to the court that they would be ready to go to trial on August 13th under the terms and conditions that everyone had agreed to last week at the pre-trial conference. The judge would not let the firm of Gust Rosenfeld out of the case without the consent of client and a representation that another firm would make that trial date. Mr. Farrell interpreted what Fred Rosenfeld was saying that he and Mr. Guttell had not contacted the individual defendants and therefore were concerned that the settlement might not be acceptable to them. As a result Mr. Rosenfeld perceived a conflict. He explained that the representation would be difficult for Gust Rosenfeld if they don't have the confidence of their clients. He thought that Fred was unclear if this council wanted to retain him as counsel or whether the individually named defendants wanted to keep him. Mr. Farrell stated he had asked Mr. Guttell to be present for the executive session. He noted that Mr. Cohen was present but he had not seen Mr. Guttell. .Mayor Beydler said a settlement judge had been appointed at this time. Apparently there was a mediation hearing scheduled for Tuesday at 3:30 p.m. Mr. Farrell stated that a settlement judge would be assigned randomly. Judge ,.- Coffman had strongly suggested to all that a mediator be utilized. He and Mr. Countryman went through a list of names and came upon a former superior court judge Dan Nastro, with Dispute Resolutions, who was acceptable to both sides. A global meeting was set up between the parties for Tuesday afternoon. Mayor Beydler announced that he had talked with Mr. Nastro's administrative assistant and there was success in getting all parties scheduled to attend this meeting. Mayor Beydler said the question was who would be attending as the Town's representative. Mr. Farrell said he would attend and who ever else the Council wanted to instruct to attend. Mayor Beydler asked Mr. Farrell to clarify how Mr. Farrell could represent the Town in settlement negotiations since Mr.Farrell was a defendant at the same time. Mr. Farrell agreed there wasn't anything standard about either case. Traditionally the Town Attorney was not sued. He felt he was being sued in his capacity as the acting town manager. He could make, and had made, an appearance on behalf of the Town in both lawsuits. With absence of direction from a majority of the Council to the contrary, he had been representing the Town. He did not view this as a conflict. He noted that in the Hoffman/Robinson case they were not seeking money damages. He perceived that people wanted to see if there was a way to settle this litigation globally. As for the Knapp case, Mr. Farrell stated that Mr. Cohen needed to be present in those negotiations because there were money damages being sought. Although the Town has been advised, and it was relatively public knowledge, there was the slimmest of possibilities that council members or the town attorney could be personally held liable in the Knapp case but it was not out of the realm of possibilities because none of the parties executed any contracts with any of the former employees of the fire district. Mayor Beydler asked if Mr. Farrell would have any personal liability from the individual defendants in the event Mr. Farrell successfully negotiated a settlement that they did not like. Mr. Farrell responded that it would not be successfully negotiated if they did not like it. All of the defendants would have to sign the dismissal, so theoretically the case could be dismissed as to the Town. The individually named defendants would go forward or the Town could settle the case on behalf of the individually named defendants and let the Town go forward. The case would not be settled and leave some of the named defendants not participating in the settlement. All defendants would have to be released from liability. One of the things that he had hoped to clear up with some of the motions was to make it easier for this Council to function as a body of seven. The motions filed to dismiss the individually named defendants from this litigation were made so that it would come down to the Town as defendant. This would allow the seven member Council to handle that particular litigation. He agreed this was out of the ordinary. Normally those motions were granted and that was what he was waiting to hear from on the Knapp lawsuit as to whether the counts were in and were the seven individual defendants out. If that were granted then this Town Council was the body that would negotiate the settlement in the Knapp case. Mayor Beydler noted that in the Hoffman case the judge had not granted that motion. Mr. Farrell said that was correct because the possibility existed that individual members of the council violated the open meeting law. It was not possible for the Town to violate the open meeting law. It would be the members of the Town Council who could. The boundary dispute and contract issues were town issues, which had been the town's position all along. No one individual from the Town signed any employment contracts. He stated the issue was that the Town inherited that as a liability. He felt that the judge would grant that motion but again there weren't any guarantees. He restated that all of the defendants would have to agree or the defendants would have to be dismissed. Mayor Beydler said the plaintiff could solve this problem by dismissing the complaint against the individuals. Mr. Farrell remarked yes to some degree. If it was the will of the majority of this Council to involve another attorney in settlement, he did not have any objection. - Councilman Kavanagh said the problem was that Gust Rosenfeld and Bill Farrell could not represent both the town and the individual defendants. He observed that the problem became with whom does the Council substitute. He felt it would be extremely dangerous to substitute a new town lawyer at this point with so much money at stake and so many facts to be learned. He said it would be almost impossible for anyone to be brought up to speed either for mediation, negotiation, arbitration or litigation. He said the least costly technique would be to get a separate lawyer for the individual defendants. He referred to a letter received today from the individuals that request. That would be the simplest and least costly method to the Town and would directly address the problem with Gust Rosenfeld's law firm presented. .,. Councilman Kavanagh MOVED that the Town authorize the retention of a separate attorney for the individually named defendants in the Hoffman/Robinson case. Vice Mayor Fraverd SECONDED the motion. Town of Fountain Hills Meeting Minutes of 7/29/02 Page 2 of 9 • Councilwoman Ralphe AMENDED the motion to provide that the attorney be retained from outside Fountain Hills. She stated that part of the problem with the whole issue of the fire suits from the beginning had been personalities. She wanted someone who did not have any previous involvement and would be a truly neutral party who had no knowledge of this. The amendment DIED due to the lack of a second. Councilman Kavanagh did'not want to restrict the defendants in their options. He said this would be a gesture that he would want extended to him. Councilman Melendez questioned if the Town was obligated to provide legal counsel to the previous council. Mr. Farrell said there wasn't a statute or code provision that required the Town to provide counsel other than what was provided through the Town's insurance coverage. He commented that it was the practice of most communities to do so. Councilman Archambault asked if the Town's insurance carrier was paying Gust Rosenfeld. Mr. Farrell replied no; the Town was paying Mr. Rosenfeld. Councilman Archambault asked if Gust Rosenfeld was still representing the Town. Mr. Farrell responded yes and that he and Steve Guttell were representing the Town and all of the named defendants. He commented that former council member John Wyman was being released. Councilwoman Ralphe asked if Gust Rosenfeld was representing everyone and there was a new attorney named to represent the Town, then would that mean the new attorney would represent the Town in a settlement and defense would go away. Mr. Farrell said no. Even if the council were to vote 7 — 0 on the original motion, he was not absolutely sure he could find a law firm or competent attorney who would be willing under those circumstances to take on this case. Mayor Beydler restated that Mr. Strict's point of view was that even if his firm was interested or willing to take this case, it would only be for purposes of proceeding with Judge Nastro's settlement negotiations as a third party representing the Town's interests in that settlement and it would not be to take on this entire case. He agreed with Mr. Farrell that a law firm could not be found who would take on this trial case two weeks before it begins. The attorneys realized that would be inappropriate and would require a continuance for them to do an adequate job. Mr. Farrell agreed that even if the Council were to pass this motion 7 — 0, the problem would be to try to find somebody who was competent and who could accommodate Judge Coffman's schedule. He was not sure that outside counsel could be found and secured. Councilwoman Ralphe questioned which might be easier to secure: having the Rosenfeld firm continue to represent the Town in defense of the suit or a new attorney for a settlement. Mr. Farrell answered perhaps to both. He explained that this was important because of the timing issue. He reiterated that it was fine with him, if the Council did not want him to attend the settlement mediation meeting. He reminded the Council that someone had to attend and represent the Town. If the Council wanted to have another firm do the mediation and let him find a firm for the individual defendants, that would also be an option. Councilman Archambault asked if the individually named council members had a different attorney in mind. Vice Mayor Fraverd answered no. She asked what Judge Coffman would do if they fired Gust Rosenfeld and stated that they no longer had any representation and they would like a continuance in order to find someone. Mr. Farrell answered he was not sure what the judge's reaction would be. Councilman Melendez referred to the letter received this morning from five named defendants. The letter states that it appears that Mr. Guttell and Mr. Rosenfeld were not interested in representing them. He asked how did this Council know this was true. He pointed to an earlier statement that they had not resigned. Mr. Farrell offered that up till last Friday Steven Guttell had not met with any of the other individual defendants. He stated that he had provided summaries to the extent that it was legally possible. He did not provide summaries of the executive 3ions to those three members who were no longer on the Council. Mayor Beydler said that Mr. Rosenfeld had told him that he doubted that the Town would fire them or accept their resignation because by doing so the Council would eliminate its ability to seek remedy if the Council later discovered that the attorneys had any culpability to malfeasance or malpractice. Councilman Kavanagh explained the purpose of his motion was to avoid all of these unpleasant alternatives. He stated there was a group of Town of Fountain Hills Meeting Minutes of 7/29/02 Page 3 of 9 • defendants who were named for whom an adverse ruling could reflect poorly on them and their reputations. The attorneys supposedly representing them had never contacted some defendants and they were concerned. He felt Gust Rosenfeld was correct, as there was something of a conflict. There wasn't any major expense here and he wanted to give these people the comfort of knowing that their interests were being looked after. It was a courtesy that he would extend to former council members and a courtesy that he would expect to be extended to him. He stated it was in everyone's,best interests to look after former council members legal interests. If that were not done then good people would not step up to serve the Town if they felt that they would be abandoned afterwards. He stated it was a worthy and proper gesture and resolved the problem of counsel conflict. Councilwoman Nicola asked how many of the main defendants besides Councilman Kavanagh and Mr. Farrell have shown up for any of the court hearings or tried prior to this date to contact their attorney or discuss the matter with their attorney. Mr. Farrell could not recall but thought it was only Councilwoman Nicola and Councilman Kavanagh and former council member John Wyman who had attended. Councilwoman Nicola said there was a certain amount of responsibility upon the individually named defendants to contact their attorney and discuss the matter with them instead of waiting until two weeks prior to trial. Councilman Kavanagh interjected that they did not have an attorney. Councilwoman Nicola said they had an attorney in Gust Rosenfeld and Steve Guttell. Councilwoman Nicola said that when they attended the training for newly elected officials they received a brief lesson on open meeting law. She understood from that that she had to be very careful. If she were to be charged with a violation such as this, she would be paying.for her own attorney. The Town would not be responsible for representation. The prior council did graciously vote to provide an attorney for the individually named defendants as well as Mr. Farrell and the Town. She would not support going out and looking for a new attorney to come in two weeks before the trial. She felt they needed to work with the attorneys already retained or entertain another motion for an attorney that would help with the global settlement. Mayor Beydler restated that Fred Rosenfeld did not state that his firm wasn't capable of representing the individuals. Mr. Rosenfeld had commented that he could not work on the negotiated settlement concurrently with defending the individuals. His law firm was not suggesting that they couldn't represent the individuals. If the individuals felt comfortable with this attorney that they have been working with all along, then he felt that Councilwoman Nicola's recommendation might be appropriate: retain an attorney to represent the Town in the global settlement issue and allow the individuals to continue with their law firm representation that they have had from the beginning. Councilman Kavanagh asked for clarification of the conflict as perceived by Gust Rosenfeld. Mr. Farrell acknowledged that he had not had the in-depth conversations that the Mayor has had with Fred Rosenfeld on this issue. He commented that his firm had expressed concern about the multiplicity and adequacy of representation. Councilman Kavanagh said that would tend to reflect on court and not mediation. Mr. Farrell said that was correct. He noted that Fred had not been involved nor had Mr. Cohen. Gust Rosenfeld and Lewis and Roca have not been involved in attempts to settle. That had been the efforts of Mr. Countryman and himself, and to some degree Jill Kennedy at the County level. The larger meetings that those firms had been involved in were held because the court ordered those. There was a mandatory pre-trial settlement conference at Gust Rosenfeld's. office in which all attorneys were present for all of the named defendants in the Hoffman/Robinson case and the court had required that meeting. As for meeting with a mediator, he pointed out that the name of Dan Nastor had been agreed to on Thursday of last week. The first choice had been Tom Irvine and he was unavailable. Several other mediators had been discussed and then the name of Dan Nastor came up. Councilman Melendez asked when did this come up. Mr. Farrell said this had been evolving since the executive session held last Tuesday. Mr. Nastor was acceptable to all as a former superior court judge. Councilwoman Ralphe asked Mr. Farrell if Gust Rosenfeld was serving the Town adequately. Mr. Farrell said the<. it was not possible to answer that with a yes,no,or maybe answer. He said he would prefer to give an answer • the Council in executive session. Councilman Kavanagh said it was unfair that a case could be made for not providing the individual defendants with representation because they had not been appearing in court. If the gauge of whether or not the individuals deserved representation was their appearing in court, then he suggested that the Town did not deserve Town of Fountain Hills Meeting Minutes of 7/29/02 Page 4 of 9 • representation because he and Councilwoman Nicola were the only council members appearing in court. He said that was not relevant. He expressed concern with regard to the representation, as there hadn't been any depositions. He was afraid that he would be cross-examining people and they would say things and the attorney Now would not have any idea as to what was going on. That was one of the reasons he had signed this letter. He felt it would be a good idea to get some separate attorneys if the town could secure one at minimal costs. Councilman Archambault asked Mr. Farrell if depositions were part of the process of discovery. Mr. Farrell said former council member John Wyman, Mike Scharnow, Tim Yoder, and the other witnesses were one that the other side had listed. He stated that the only deposition that was taken in this case was his. Councilman Archambault asked why the Town's attorney did not take depositions. Mr. Farrell said that would be a question for Mr. Guttell. Councilman Archambault expressed concerned that now the trial was getting close, the individuals were anxious about having adequate representation. The named defendants certainly had plenty of time to call Gust Rosenfeld's office and find out how the case was going. Councilman Kavanagh stated that they were not asking for different representation for the Town at this point. Bringing in any new party who was not up to speed for anything would be disastrous. He clarified that they were talking about an additional legal counsel so the current legal process would not be altered. This would give legal peace of mind to a small group of people who served the Town for many years. Councilman Archambault commented that Mr. Farrell said the motion for dismissal of individual defendants would be approved. Mr. Farrell refuted that he made that statement. Councilman Archambault continued that if this case were lost for the individual defendants, they could ask for tort damages and those named council members could be held individually liable for damages. Councilman Kavanagh argued that was all the more reason to have that law firm and they required separate representation. In recognizing that fact, he felt the Council should extend the former council members that courtesy. Councilman Melendez asked what type of costs were involved. He was inclined to extend that courtesy. He asked why hadn't the law firm told the Council that they were no longer willing to represent the former Mayor. Nov Councilman Kavanagh said it was brought up in the memo and was why the situation had surfaced. Councilman Melendez corrected Councilman Kavanagh by quoting from the letter by the previous council. Councilman Kavanagh countered that he was referring to the e-mail from Mayor Beydler to this Council dated July 26th where Mayor Beydler stated that Gust Rosenfeld wished to withdraw from the Hoffman case because of a conflict of interest. That was what had raised this whole issue. Councilwoman Ralphe asked if that information shouldn't have come through the Town Attorney Bill Farrell since he was the one who had hired them. Councilman Kavanagh said he did not know it didn't. Mr. Farrell said that technically it did, but he could not go into the executive session in which the issue was raised. He commented that conversation was held a couple of weeks ago. Mr. Farrell noted that this was not a new problem. Vice Mayor Fraverd noted that this agenda was before the Council for a couple of different reasons. She said there was a motion on the floor for retaining additional counsel and she would like to pursue that option. As far as the additional attorney for mediation, she did not think anyone had been looked at so the Council would not be able to move forward on that issue. Mayor Beydler said this Council needed to be focusing on settlement, as that was the last policy statement made by the Council. He felt the Council needed to be talking about adding an additional legal representative or possibly having the town attorney accompanied by an appropriate representative from this Council. He had confirmed that this was not an unusual circumstance with the settlement judge's assistant. The representative could accompany Mr. Farrell to the mediation or the settlement hearing to offer input, if necessary, to ensure that the Council's wishes were brought forward. He said it was more important that the Council spend their time talking about if Gust Rosenfeld was providing adequate representation for the Town at This point and whether or not they were appropriate for the individuals. It appeared to him that Councilman .,avanagh's motion might leave the Town with the representation of a firm with whom Councilman Kavanagh was not comfortable. Councilman Kavanagh remarked that it was Mayor Beydler who had relayed that Gust Rosenfeld said there was a conflict of interest involving representing individuals in the Town and that was why he wanted to remove the cloud. Councilman Kavanagh suggested removing the smaller of the two representations to a new attorney and let Gust Rosenfeld continue with the major issue. Town of Fountain Hills Meeting Minutes of 7/29/02 Page 5 of 9 Councilwoman Nicola asked if these concerns stemmed from the attorneys or from second hand conversations. Mayor Beydler said he did not know what conversations Mr. Farrell had had with them but that information should be discussed in executive session. Mr. Farrell agreed but did state that they had not expressed any concerns in writing. Councilman Archambault asked Councilman Kavanagh if he wanted Gust Rosenfeld to move forward with this case. Councilman Kavanagh responded that he was not requesting that Gust Rosenfeld not represent the Town. He was asking that a separate attorney be retained for the individually named defendants. Councilwoman Ralphe said that if there were a separate attorney for the individuals and the Council was going in the direction of a settlement, then she felt that the Town was going in two different directions. Mr. Farrell agreed that was the case. He said that the problem was the issues that needed to be resolved went beyond the Hoffman/Robinson case. He noted that the Hoffman/Robinson case was not the lynch pin of the settlement as that was the Knapp case. Councilman Archambault asked what would the ramifications be if the Town lost the Hoffman case. Would the Knapp case go away? Mr. Farrell agreed that it did, in theory. Councilman Archambault asked if then the plaintiffs could file for tort damages. Mr. Farrell said they might. Councilman Archambault asked if the Town's liability policy would pay that. Mr. Hudson responded that he could not say what SW Risk would do. He explained that they were an insurance company and these claims had been turned over to them. He was the president but he excused himself from anything pertaining to his own town. That was a requirement to serve on the board. He advised that the council should go through the town attorney or the attorneys at the Risk Pool. Councilman Archambault asked if the Town policy was in jeopardy, would the Town not have a lawyer from the insurance firm representing the Town. Mr. Farrell responded yes and explained the Town's process when a lawsuit was filed. The insurance company would respond to say if the lawsuit was covered. If the lawsuit was not covered, the town would hire their own attorney and the Town would have to pay for money damages. The current Knapp lawsuit was sent to the Pool the day it was served. The Pool had declined to cover the Town as it lallw was filed but stated they would provide the Town with the defense. The pool was paying for the defense in the Knapp case. If the damages were awarded against the Town, the Pool would probably not pay them but would reserve the right to make that decision at the time the damages were awarded. Councilman Archambault asked what position was the Pool taking regarding the Hoffman/Robinson case. Mr. Farrell stated the Pool declined to cover the Town because they were not seeking monetary damages. However, the Pool said they would contribute a portion of what the Town spent on attorney fees under the provisions of the policy. The Pool was picking up a portion of what the Town was paying to Gust Rosenfeld. Councilman Archambault reiterated that technically the Pool was not covering the Town. Mr. Farrell said as the suits were filed he would agree. Councilman Archambault noted that if monetary damages were assessed, the Pool would not cover them. Mr. Farrell disagreed. He explained that if the Mr. Countryman changed his theories to something else and damages were awarded, then the insurance company would probably step up and pay. If it remained the traditional contract case and the issue is whether or not the contract was breeched, it would not be covered. Councilman Kavanagh thought it best to limit discussion to the agenda item. Councilman Melendez asked for clarification on the agenda item. Mr. Farrell responded that the way the agenda was worded the Council was given broad enough authority to discuss matters related thereto. He suggested that if the Council was uncomfortable this could be reagendized for Thursday's meeting. Councilman Kavanagh replied that if there were some concern on the amount he would amend the motion. Councilman Kavanagh AMENDED the motion to say that the payment would not exceed what was presently being paid to Mr. Cohen. Vice Mayor Fraverd SECONDED the amendment. arrell said that Councilman Melendez's concern went to the specific wording of the agenda rather than the .otion. Councilman Kavanagh asked if there was a problem including this. Mr. Farrell said no but as Mayor Beydler had pointed out, Mr. Farrell was one of the named defendants. If a majority of the Council was uncomfortable, the Council could move to amend the agenda item under the emergency clause because Councilman Melendez would not be here for the August I' Council meeting. Mayor Beydler said he had a hard time with this motion. If the Council was beginning to doubt the integrity or the ability of this firm, then why was Town of Fountain Hills Meeting Minutes of 7/29/02 Page 6 of 9 • the Council considering giving the individually named defendants (at the Town's expense) a new and conceptually better law firm to represent their interests. That would leave the Town with the firm of Gust Rosenfeld and there were questions regarding their ability, commitment, or willingness to do the job. It was his opinion that the firm was uncomfortable with representing the Town in the area of settlement because they had been working continuously on defense. He was concerned that what the agenda was asking for was in the Town's best interests right now. .He did not think the motion made was germane to the agenda item and he would certainly be voting against this, as it was not in the Town's interests. It was in the individuals' selfish interests, which he understood. He did not want to get stuck with a lemon. Councilman Kavanagh pointed out that this motion did not let Gust Rosenfeld out of Town representation. He restated that no new firm could come in at this point, learn the facts,and represent either side in settlement or in litigation. Mayor Beydler disagreed with Councilman Kavanagh. He said that he had talked with the attorneys who were considering taking on the case and it was their point of view that if there were serious efforts and good faith on the Town' behalf to negotiate towards a settlement, then there was every reason to believe that the plaintiffs would be willing to look for a continuance, if time was the problem. He felt that was a consideration. Councilman Kavanagh reiterated that was a separate item that could be brought up. Councilman Archambault expressed it did not make sense to try to hire another firm at this time. He felt they had to stick with Gust Rosenfeld. Councilman Kavanagh moved the amendment and the motion. Councilwoman Nicola asked what the purpose was of hiring the new firm that Councilman Kavanagh wanted. Councilman Kavanagh again stated that the new firm would represent the individually named defendants in any litigation. Councilwoman Nicola questioned his reasoning since Councilman Kavanagh said a new attorney could not be brought up to speed. Councilman Kavanagh said that the individuals needed someone who would watch out for their interests because of potential conflicts. Councilwoman Nicola agreed with Mayor Beydler. Why would the Council leave the Town, who has the deep pockets, in the hands of Gust Rosenfeld? Councilman Kavanagh responded that it was because of the conflict. Councilwoman Nicola said there hadn't been a conflict so far. Councilman Kavanagh refuted her statement, as Mayor Beydler was the person who said that Gust Rosenfeld 16110* relayed there was a conflict. Mayor Beydler thought that maybe the conflict existed all along and that there were individuals who were looking into the issue of potential malfeasance and malpractice. A roll call vote was taken with the following results: Mayor Beydler Nay Councilman Archambault Nay Councilwoman Ralphe Aye Councilwoman Nicola Nay Councilman Kavanagh Aye Vice Mayor Fraverd Aye Councilman Melendez Aye The amendment CARRIED on a vote of 4—3. Mayor Beydler called for the vote on the amended motion. A roll call vote was taken with the following results: Mayor Beydler Nay Councilman Archambault Nay Councilwoman Ralphe Nay Councilwoman Nicola Nay Councilman Kavanagh Aye Vice Mayor Fraverd Aye Councilman Melendez Nay The amended motion FAILED on a vote of 5 -2. ..ouncilman Kavanagh MOVED that consideration to retain additional legal firms for Fountain Hills be tabled until after such time as Mr. Farrell no longer represented the Town or a law firm withdrew. Vice Mayor Fraverd oilloy SECONDED the motion. Councilman Melendez said he needed to move into executive session for some issues that were vital to this motion. Councilman Kavanagh MOVED to table this item until after the executive session. Vice Mayor Fraverd SECONDED the motion. The motion CARRIED unanimously. Town of Fountain Hills Meeting Minutes of 7/29/02 Page 7 of 9 • AGENDA ITEM #2 - PURSUANT TO A.R.S. §38-431.03.A.4. AND A.R.S. §38-431.03.A.1., VOTE TO GO INTO EXECUTIVE SESSION FOR: PURPOSES OF OBTAINING LEGAL ADVICE FROM THE TOWN ATTORNEY REGARDING PENDING OR CONTEMPLATED LITIGATION SPECIFICALLY: low HOFFMAN/ROBINSON/KNAPP VS. TOWN, ET AL.; AND DISCUSSION OR CONSIDERATION OF EMPLOYMENT, ASSIGNMENT, APPOINTMENT, PROMOTION, DEMOTION, DISMISSAL, SALARIES, DISCIPLINING OR RESIGNATION OF A PUBLIC OFFICER, APPOINTEE OR EMPLOYEE OF ANY PUBLIC BODY, EXCEPT THAT WITH THE EXCEPTION OF SALARY DISCUSSIONS, AN OFFICER, APPOINTEE OR EMPLOYEE MAY DEMAND THAT SUCH DISCUSSION OR CONSIDERATION OCCUR AT A PUBLIC MEETING. THE PUBLIC BODY MUST PROVIDE THE OFFICER, APPOINTEE OR EMPLOYEE WITH SUCH PERSONAL NOTICE OF THE EXECUTIVE SESSION AS IS APPROPRIATE BUT NOT LESS THAN 24 HOURS FOR THE OFFICER, APPOINTEE OR EMPLOYEE TO DETERMINE WHETHER SUCH DISCUSSION OR CONSIDERATION SHOULD OCCUR AT A PUBLIC MEETING. (THE COUNCIL WILL DISCUSS THE PROPOSED CONTRACT FOR THE NEW TOWN MANAGER.) Councilman Kavanagh MOVED to recess the special session and convene the executive session. Vice Mayor Fraverd SECONDED the motion. The motion CARRIED unanimously. AGENDA ITEM#3-RETURN TO SPECIAL SESSION. Mayor Beydler reconvened the special session at 11:10 a.m. AGENDA ITEM #4 - DISCUSSION OF THE PROPOSED CONTRACT FOR THE NEW TOWN MANAGER WITH POSSIBLE DIRECTION TO STAFF. Mr. Farrell suggested that the Council continue the matter until the August 1, 2002, council meeting. Mayor Beydler asked if the offer shouldn't be revised to reflect the omission of the escrow agreement and the$30,000 be the gross dollar amount. Mr. Farrell said he would revise the offer and send it to the candidate. Councilman low Archambault moved to counter Mr. Pickering's offer with the two items as discussed and to reagendize this item for the August 1, 2002,council meeting. Councilwoman Ralphe SECONDED the motion. AGENDA ITEM#5-ADJOURNMENT. Councilman Archambault MOVED to adjourn. Vice Mayor Fraverd SECONDED the motion. The motion CARRIED unanimously. The meeting adjourned 2:07 p.m. Town of Fountain Hills Meeting Minutes of 7/29/02 Page 8 of 9 TOWN OF FOUNTAIN HILLS By: / a Jon Beydl- , May. ATTEST: eiviit• Cassie B. Hansen, Director of Administration/Town Clerk n ., • PREPARED BY: l'' I i'/ ) Bev Bender,Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Special and Executive Meeting held by the Town Council of Fountain Hills on the 29th day of July, 2002. I further certify that the meeting was duly called and that a quorum was present. DATED this 15th day of August 2002. . _. lofty eit4.4.L .113 ilitAs..., Cassie B. Hansen, Director of Administration/Town Clerk , fir., Town of Fountain Hills Meeting Minutes of 7/29/02 Page 9 of 9