Two Dunsmuir City councilors, citing improper processes, refused to participate last week in the hiring of a new city attorney to replace John Kenny, who recently resigned.

Two Dunsmuir City councilors, citing improper processes, refused to participate last week in the hiring of a new city attorney to replace John Kenny, who recently resigned.

Dunsmuir attorney David Hicks was appointed by a 3-0 vote during a special meeting held April 1, and a contract was approved during a closed session on April 3.

As the April 1 meeting got underway, Mayor Dave Keisler and councilor Ed Steele removed themselves from the proceedings and sat in the audience.

They argued that appointing a city attorney cannot be done without also talking about compensation, and that can’t legally be accomplished during a special meeting.

“I refuse to take part in this illegal meeting,” said Keisler, saying he would sit in the audience as an “interested observer and potential witness.”

“How could you hire somebody and not discuss the terms of the contract and the payscale for them?” said Steele before leaving the table.

Vice Mayor Scott Welch presided over the meeting after Keisler left.

Welch said according to the State Bar, there are only three attorneys in town, and David Hicks has shown interest in the city attorney position.

From the audience, Hicks said the special meeting was not illegal because it was posted in a timely manner under Brown Act guidelines. The government code states that legislative bodies cannot discuss compensation during a special meeting, but appointments can be made, he said.

“It’s pretty clear you can take any action you propose if you decide to do that today, and have negotiations later,” he said.

Hicks said he was not against a temporary appointment or requests for proposals.

“I’m happy to compete,” he said, adding that he would “consider it an honor” to represent the city.

“You’re so far into this without being into this, it’s a little perplexing for those in the audience,” said Dunsmuir resident Chris Raine during public comment.

Raine pointed out that agendas are normally agendized by the city manager and then staff usually creates reports to accompany it.

“I think it’s good advice to postpone these items,” Raine said, noting there was nothing urgent on the agenda necessitating a special meeting and that Kenny would remain the city’s attorney until his replacement’s appointment.

“I don’t know how we reached this point with letting John Kenny go,” said Dunsmuir’s Arlis Steele. “John Kenny was a good honest man and he was treated shabbily... to the point he resigned.”

“I fail to see transparency in this city council,” said Sandy Raine, who said she believes the contract and compensation has already been discussed.

“I make a motion that we appoint Mr. David Hicks as an interim and local city attorney... and the pay not to be any more –” Welch said, before being interrupted by the audience that the council could not discuss compensation.

Padula then made a motion to appoint Hicks as the city attorney.

From the audience, Hicks said he could be fired tomorrow or next week. There would be nothing legally binding about his appointment.

Padula’s motion was seconded by Wilde.

She said she had talked with numerous citizens who are excited to see Hicks appointed. She said if the council is unsatisfied by Hicks’ work in any way, he could be easily and quickly fired.

When the vote was called, all three councilors at the table voted in the affirmative to hire Hicks and the meeting was adjourned.

At the beginning of the April 3 regular meeting, Vice Mayor Welch reported that during closed session, a contract had been approved with Hicks.

The vote was 3-0, with Wilde, Welch and Tim Padula voting yes. Keisler and Steele recused themselves from the vote.

Hicks’ contract

According to the contract approved on April 3, Hicks will be paid $150 per hour for his services. He shall be paid monthly and checks will be for no less than $1,500 as a minimum payment, with any excess credited to the next invoice.

The city attorney’s salary will be automatically increased by 5% every six months, “unless other increase is mutually agreed upon,” according to the contract.

The city will pay Hicks a $5,000 “true retainer” because he will “have to decline certain work to avoid conflicts of interest.”

Hicks can resign at any time with 60 days prior written notice and the agreement can be terminated at any time with three votes from the council.

The contract states that the only exception is when one of the votes comes from a new council member who was just elected. If that is the case, Hicks will be retained for at least four months after the election, “thereby allowing the newly constituted council adequate time to fairly assess” his performance.

There is also a termination fee “in the amount of one week’s compensation for each two-month period in which he shall hold his office, based upon the average monthly compensation in the immediately preceding six months.”

The city also agreed to pay Hicks’ premiums for Commercial General Liability and Errors and Omissions insurance.