The fight over whose eyes may see the itemized legal bills for Missoula’s takeover of Mountain Water Co. is far from over, Ward 4 City Councilman Jesse Ramos said this week.
“I’m fighting for transparency in how taxpayer money is spent,” the first-term council member said.
Since his campaign last fall, Ramos has insisted that the invoices be released, countering arguments by the city’s in-house and private attorneys that the documents are a veritable playbook of their ongoing legal strategy.
Ramos himself still has not seen the invoices, as he refuses to sign a non-disclosure agreement and insists on bringing his attorney with him to the offices of Boone Karlberg law firm.
Now he is working with former City Council members to write a resolution – no sitting council members will join him – declaring that under the Montana Constitution the city must disclose the bills to the public.
“That way, we would be on the radar of the Montana attorney general,” Ramos said, “so maybe we’d get their attention about what’s going on over here in Missoula.”
The resolution and eventual committee referral come at the suggestion of Missoula Mayor John Engen, who has said he’s a strong advocate of the public’s right to know but must follow the advice of legal counsel, who say the invoices are protected under attorney-client privilege.
Earlier this month, Engen said the legal bills for the successful takeover now total $9.1 million. The amount of each individual invoice has been made public as part of the claims approved at the City Council’s regular Monday night meetings.
Engen reminded Ramos that council members have approved all of those invoices, in public, with an opportunity for public comment and council questions and comments.
City Council president Bryan von Lossberg emphasized the same.
“Those meetings, the review of those expenditures, that is the literal definition of accountability,” Von Lossberg told Ramos. “To insinuate that we have not been doing that would be irresponsible, is the kindest way I could describe it, and I take it very personally.”
“There has been nothing hidden about those costs,” he said. “I have zero problem looking any citizen in this community in the eye and being completely confident about the city and the council’s role and accountability and transparency.”
For his part, Ramos has voted “no” each time a legal bill associated with the Mountain Water – now, under city ownership, called Missoula Water – case.
The centerpiece of his argument is that Article 2, Section 9 of the Montana Constitution demands that such documents be made public. It reads:
Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
City Attorney Jim Nugent disagrees with that interpretation and explained why in a May 15 email to Ramos.
Nugent said the Montana Supreme Court has, in fact, discussed whether Article 2, Section 9 applies to attorney-client privilege and/or attorney-work product privilege.
“These legal privileges were most recently recognized by the Montana Supreme Court in the Feb. 28, 2018 decision in Nelson v. City of Billings,” Nugent wrote.
“The Montana Supreme Court in Nelson indicated that it had studied the minutes of the Montana Constitutional Convention and concluded that the Montana Constitutional Right to Know provision was not intended to and did not in fact eliminate the legal privileges of attorney-client privilege and/or attorney-work product privilege.”
Ramos believes the resolution he’s writing will at least allow the City Council to debate whether or not it’s constitutional to withhold the detailed legal invoices from the public.
Those documents list the hourly rates charged by each attorney and the exact work completed in 15-minute increments.
“It seems pretty clear to me,” Ramos said. “I took an oath to defend the Montana Constitution, and that’s not always easy.”
Nugent, however, emphasized that while the city has taken possession of the water utility, some of the legal issues remain in litigation.
It is not unreasonable, the city attorney said, for Boone Karlberg to require Ramos to sign a nondisclosure agreement before seeing the invoices.
“It is a logical, reasonable and practical legal procedure for the Boone Karlberg law firm to protect what they consider to be attorney-client privilege and/or attorney-work product confidentiality, as allowed by those legal privileges,” he wrote.
Nugent also suggested that the issue is more political than legal and took particular umbrage with Ramos’ suggestion in an earlier email that Nugent should represent him in the dispute.
“It also is highly inappropriate for a city elected official to attempt to have the city attorney take sides between city elected officials disagreeing with each other, when the issue in controversy is really potentially a political issue and/or a politically motivated as easily could be the case when elected officials of the same government get into legal disputes with each other,” came Nugent’s reply.
Ramos is undeterred, and believes momentum is shifting to his cause.
He repeated his concern that Engen received “tremendous amounts of money” for his 2017 reelection campaign from Boone Karlberg’s attorneys and their spouses and staff, although he stopped short of alleging any impropriety.
It’s just another reason why the invoices should be scrutinized, Ramos said.
He was to have seen the invoices last week, but backed out when he did not receive answers to several questions he emailed to the law firm and was told he would still need to sign an NDA.
This week, he is in Washington, D.C., in part to attend a National Association of Insurance and Financial Advisors conference, in part to meet with Montana’s GOP congressional leaders.
Then he’ll resume the effort to look at the invoices and gain their wider release.
In the meantime, he has legal representation by Missoula attorney Quentin Rhoades and support from a handful of local residents who have attended recent council meeting to speak on his behalf – and to chide his fellow council members for not supporting the documents’ release. He has also received a letter of support from the vice president of the National Lawyers Guild.
This past Monday, the support came in part from former City Council member Jerry Ballas, who took council members and the mayor to task for a number of issues he attributed to a “lack of transparency” – including the legal invoices and recent decisions by the Missoula Redevelopment Agency.
“It simply should not be such a big deal for a council member to see these invoices and for the public to see them,” Ramos insisted. “If a car mechanic sent you a bill for $40,000 and didn’t tell you exactly what he did to the car and how much he charged an hour for labor, you wouldn’t stand for it.”
“I hate going to council meetings and having these disagreements,” he said. “I hate seeming like a jerk and people just not liking me. It’s not comfortable. I don’t know why I feel so passionate about this issue, but I feel a moral obligation to do this.”