By Gloria Lloyd
News Editor
glorialloyd@callnewspapers.com

Some members of the St. Louis County Council believe they could get better legal representation if county voters approve an amendment to the county Charter next week, but others predict nothing substantial will change even if the amendment is passed.

The council voted Jan. 3 to place the amendment on the ballot 6-1, with 3rd District Councilman Tim Fitch, R-Fenton, dissenting in his first meeting on the council. County Executive Steve Stenger returned the bill unsigned, which allowed it to go into effect.

Charter Amendment Proposition 1 on all county voters’ ballots Tuesday, April 2, asks if the Charter should be amended to “provide for the office of the county counselor to have three divisions — respectively serving the legislative, executive and judicial branches of county government?”

The plan, which is supported by council Chairman Sam Page, D-Creve Coeur, would carve up the county counselor’s office into three divisions, with some lawyers officially designated as representing the county executive, some representing the county council and some the judicial branch.

They would all still report to County Counselor Peter Krane.

When it comes to the sometimes diverging views of the council and county executive, “it’s impossible to represent both of those interests at the same time,” Page said of why he proposed the idea. “Our county Charter is unique in asking the county attorney to represent divergent views…. Every client deserves an attorney who has a duty and responsibility to them and no one else and to give them legal advice without the imprint of a third party who may disagree.”

The amendment will cost the county $380,180 to place it on the ballot, according to preliminary estimates, county Democratic Election Director Eric Fey said. The final price tag won’t be known until after the election.

Even if voters don’t approve this amendment, it could potentially become part of the Charter through the county Charter Commission, which holds its second meeting Thursday.

The county counselor’s office is led by the county counselor, who currently oversees about 16 assistant county counselors who represent the various branches of county government, the departments and the St. Louis County Police Department on a range of legal issues.

Although disputes between the judicial and executive branches of county government have not received as much attention as the council’s battles with Stenger, Page said that some of those disputes do exist, which is why he wanted the judicial branch included in the amendment.

Page said the county would not have to hire any more lawyers if the amendment passed, but could categorize existing assistant county counselors as working solely for the council. And when they’re not representing their designated branch, they could work on the county’s many other legal issues.

Although the council-county executive disputes are what make headlines, Page also noted that it’s “relatively uncommon” for the executive and legislative branches to disagree in county government, even now. So any dispute between the council and Stenger wouldn’t take up much of the designated attorneys’ time.

In unofficial practice, the council already does something similar, preferring Deputy County Counselor Micki Wochner to give them legal advice on most day-to-day issues rather than Krane himself.

“But we want to make it clear that when the council asks for a legal opinion, they must hold to the legal position that the County Council is trying to take and not simply represent the county executive,” as the council believes Krane has done, Page said.

The county counselor’s office is not taking a position on the amendment, Wochner said.

Amendment creates a ‘Chinese wall’; Trakas calls idea ‘absurd’

The council chairman sees the latest effort to amend the Charter as a way for the council to have its own attorney, at least in theory, without violating the Charter language that states that county government will only have one lawyer, the county counselor.

Many council members believe the county counselor has an inherent conflict of interest because he serves at the will of the county executive, who has vehemently disagreed with the council on various issues. That “undue influence,” as it is termed by 6th District Councilman Ernie Trakas, R-Oakville, has led to repeated conflicts in the last two years.

But Trakas and Fitch both say the amendment itself is a wasted effort that won’t improve the council’s legal advice since any assistant county counselor assigned to the council would still report to the county counselor, who reports to the county executive. Fitch also takes issue with the price tag to place the amendment on the ballot.

Instead of any official designation of separate divisions, the plan “would create the impression” of those divisions, said Trakas, who voted to place the amendment on the ballot but now says he can’t tell voters to vote for it.

“They want their own lawyer, and so if this gives them the illusion that they have their own lawyer, they believe it,” Trakas said of the rest of the council. “I tried to explain to them that there’s no real upside to this, that you’re not going to get anything different than what you’ve got.”

It’s based on a legal idea called a “Chinese wall,” in which attorneys from the same law firm can represent opposing sides of the same issue as long as all parties know about it and as long as those attorneys don’t discuss the case with each other.

“That’s as absurd as it sounds, and I practiced law for 40 years,” Trakas said. “I never believed in its efficacy, and I don’t believe in it here.”

Page has led a bipartisan rebellion on the council against Stenger for the last two years, even suing the county executive for access to more money to hire new staff and publicizing a federal subpoena that Krane told him to keep confidential.

But the person giving the assistant attorneys raises and performance evaluations would still be Krane, Fitch said.

“If their ultimate boss is the county counselor, that makes no sense to me,” he said. “The council voted to put it on the ballot at a cost of $385,000 when it’s going to do nothing if it passes. So to me it was just a huge waste of money.”

And Trakas said the attempt at middle ground won’t change anything in practice.

“The simple fact of the matter is the Charter will continue to state that the county counselor continues to serve at the pleasure of the county executive,” Trakas said. “I don’t care who you designate to work with the council, there’s no way that that person’s not going to report to the county counselor. He’s their boss. He in turn owes fealty to one person, the county executive. So the idea that somehow the County Council is going to get an independent opinion just doesn’t fly for me, that’s why I didn’t support it. That’s why I don’t support Prop 1.”

Ongoing conflict at root of amendment, Fitch says

Fitch said the original votes happened before he was on the council so he wasn’t in on those conversations, but he believes the reason why the entire council except him would have voted to place an amendment on the ballot that has no practical effect could have come down to adding another chapter to the council vs. Stenger saga.

“That’s what they’re focused on is how they can fight with him,” he said.

The issue of the potential conflict of interest of the county counselor has existed since the Charter was written in the 1970s, but the current council is the first one to actively rebel against the idea. Some council members have publicly said they don’t trust Krane, who was appointed by Stenger and approved by the council when Stenger took office in 2015.

But Fitch, who had direct experience with the county counselor’s office when he served as the police chief, said he respects Krane, Wochner and the office’s other attorneys. Although Krane only took over the office after Fitch retired as chief, he previously worked as an assistant county prosecutor during Fitch’s time in the Police Department, where they worked together.

“I think they’re both good lawyers, and I think they’re decent, honest people,” Fitch said of Krane and Wochner. “But for some reason some of the council members don’t believe anything they say because they feel like they’re getting direction from the ninth floor,” shorthand parlance for the county executive’s office.

Compromise sought after previous election defeat

As an alternative to Krane’s legal advice, the council has fought to hire its own staff attorney and placed that idea before voters last August as part of a slate of Charter amendments. But that amendment failed by 12 votes out of hundreds of thousands cast, which moved to about 50 votes after a recount. A firefighters’ political-action committee linked to Stenger ran television commercials against the Charter amendment before the August primary.

The new amendment is a compromise that Page believes will pass legal muster in ways that the other Charter amendment might not have, while also respecting voters who voted against the council hiring its own attorney, he said.

“We recognize the politics of the situation — the county executive spent half a million dollars in TV ads to try to defeat the Charter amendment to allow us to have our own attorney and he was successful by a fraction of a percent, by 50 or so votes,” Page said.

But Fitch contended that the amendment ignores the will of voters, who rejected the council having its own attorney by the narrowest of margins.

“The voters decided that they would not allow the County Council to hire their own attorney, period,” Fitch said the night of the Jan. 3 vote. “It was a close vote, as you know, but it was rejected by the voters and I respect their will. That’s why I voted no.”