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North Bend to consider attorney services

NORTH BEND - North Bend may replace its city attorney after eight years of service to the city.

The city posted a request for qualifications notice last month that will allow firms to submit proposals until Jan. 18. After that, candidates will be screened by the council and mayor. The council must ultimately approve the contract.

While city contracts for services are reviewed and changed regularly, the past year has caused at least one council member to question the capabilities of the city attorney, according to public records.

A string of e-mails obtained by the Valley Record show that Councilman Bill Wittress has doubts regarding the service of Mike Kenyon, an attorney with the Issaquah-based municipal law firm Kenyon Disend who has been the city's attorney since 1996.

"I personally don't trust your opinions or motivations," Wittress said in an e-mail to Kenyon dated Oct. 26 of last year. "I might be wrong in thinking others agree with me, which would be perfectly fine with me. Somehow, I don't think I am."

Most of the e-mails, which were between Wittress, Kenyon and North Bend City Administrator George Martinez but sent to the mayor and all members of the City Council, had to do with Kenyon's legal advice during the city's Tift Haus decision. Last year, the owners of the Tift Haus restaurant (now a bar and grill called the Pour House) on North Bend Way were working on a deal to sell the restaurant to a group of investors. The owners of the restaurant were unaware that the restaurant's front door, sign and a portion of the east parking lot were located on city of North Bend property. In order to clear the title and pave the way for the sale of the property, the owners needed the City Council to relinquish the rights to (or vacate) either the entire 4,000-square-foot portion or a smaller piece of the land, which lies adjacent to North Bend Way.

To complicate matters, two council members were involved in the potential sale, with Chris Garcia part of the financial group looking to purchase the property and David Cook brokering the deal for the buyers.

Considered a quasi-judicial matter, council members remained publicly silent on the issue that came to light in late April of last year on the advice of Kenyon. At a special meeting of the City Council held June 29 that was not attended by Garcia and Cook who recused themselves because of their involvement, the remaining council members broke that silence. Following a spirited public hearing, the council voted 3-0 to vacate a section where a front-door addition pushed the outline of the main building into the city's property, but the sign and parking lot remained city property.

The move, council members said, would allow the property owners to sell the restaurant while maintaining the larger portion of the property for future city use.

Councilman Mark Sollitto said at the time he was concerned that by vacating the entire piece of property, it could set a precedent that could potentially have all property owners along North Bend Way looking to follow suit.

Earlier in the meeting, Kenyon said he did not think a decision would set a precedent.

Wittress said he shared the same concerns as the others, but added he thought by vacating the property the city was effectively giving the owners an additional piece of land with which they could raise the sale price. He added that "a windfall is a windfall," no matter who was involved. In this case, he said, it just so happened two City Council members could potentially benefit.

In the e-mails, Wittress and Kenyon discuss conversations they both had with an attorney from the Association of Washington Cities regarding the Tift Haus purchase. Kenyon said the attorney agreed with him about the Tift Haus decision, but Wittress said the attorney thought "there were clearly shades of gray and she expressed some concerns about them."

Wittress said later, however, that his displeasure goes beyond what happened with the Tift Haus.

"Regardless of whether the advice was legal, it does not mean it was ethical. And here we come to the crux of the issue," Wittress, who is also an attorney, said in an e-mail dated Oct. 22. "Speaking for myself only, my dissatisfaction goes way beyond the Tift Haus issue. I began having discussions with you about my expectations three years ago when Joan [Simpson] was mayor. Information is never forthcoming, we receive no written opinions from you, you have given advice that was wrong and there is a perception that you don't represent the city and council equally. Frankly, I have stopped asking advice from you because I don't trust your motivations."

Kenyon wrote later that he disagreed with Wittress' assessment of his service. He said that while Wittress has the right to disagree with his decisions, Kenyon's advice is the best advice he can give.

"Clearly, on a council as deeply divided as this one, however, my best advice may frequently rankle some councilmembers and please others. It nonetheless remains my best legal advice, and it had nothing to do with one faction or the other of a divided council," Kenyon wrote in an Oct. 25 e-mail. "The law is not science. It is judgment based on our years of experience in municipal law and the application of that law to the facts at issue. In no case, has our advice been 'wrong.' In virtually all cases, however, legal advice can be challenged by others with differing judgment."

Garcia said that while he can't say much about the Tift Haus decision since he recused himself from the meeting, he has no complaints about Kenyon's service to the city.

"I don't feel he has done us any injustice," he said.

Both Wittress and Garcia said that is it not unusual for cities to review their contracts for value and service, such as when the city reviewed the possibility of getting police service from Snoqualmie as opposed to the King County Sheriff. The city chose to stay with the King County Sheriff.

"It's always good to review those contracts," Wittress said last week.

Cook said he had no problem with the Tift Haus advice Kenyon gave and commended Kenyon's volunteer work for the city during its fight to not have the state build a halfway house for sexual offenders east of town. He said Kenyon's advice may not always be what the council wants to hear, but that has had nothing to do with his abilities.

"I don't always like what he tells you, but you don't shoot the messenger," he said.

Kenyon said he would not comment on the process until it was done, but did say his firm would be one of those submitting proposals to North Bend.

"It's not unusual for cities to periodically undertake these reviews for all professional services in order to compare cost and service," Kenyon said last week in an e-mail. "Our firm always ranks at the top on consideration of those two variables, which are the only two that we can control."

Former Valley Record editor Travis Peterson contributed to this report.

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