Where's
Order 11? Council has hard time getting answer
By Elizabeth Prata
On July 19, the Town Council voted to revive the legal
stay lodged in Superior Court by the previous Council,
and continue with their pursuit of a legally binding
answer to whether Pennell Institute and property is
part of the Henry Pennell trust. As of today, the
Council still doesn't know if that Order was executed,
and they are having a hard time getting answers.
The July 19 vote stated that the intended action was
"To review and act on directing the Town Attorney
to file in the pending Superior Court action to determine
whether the Pennell Institute building and associated
land are assets of the Pennell Trust, or outside of
the Trust."
The morning after a Council meeting, the Manager usually
begins executing the Orders from the night before.
Orders are the Council's legislation, and are the
formal actions of the Town. Council Chair Gary Foster
said that he had assumed that the Manager had acted
on the morning of July 20 as usual, and began executing
the action.
On Friday evening, Mr. Foster said that, "I spoke
with the Town Manager on Friday, and he has not yet
instructed the Town Attorney to file the papers as
directed by the Order." Mr. Foster continued,
"I expressed to the TM [Town Manager] that we
do have a time limit and must move on this now. I
may, once again, need to contact the Town Attorney
directly in order to act on this in a timely manner."
Mr. Foster did end up sending an e-mail to Town Attorney
Bill Dale directing him to begin this action. The
stay expires on August 31 and the Council needs to
have a definitive answer that the activity was initiated
in court before the expiration date.
The Council still had not heard as of Monday, July
25 at their workshop meeting, nor again by their August
2 regular Council meeting. Mr. Berkowitz said after
the August 2 meeting that the Council should "not
assume that just because they had not heard from the
Attorney that he isn't working on putting together
the papers." Asked whether he sent papers to
Bill Dale to begin the Council's Order 11 then, or
later, Mr. Berkowitz responded that he "will
be able to review and respond on Thurs. Out of Office
most of today. Thank you."
Mr. Foster was hesitant to assume that work was being
done, and after the Council meeting on August 2, he
sent another e-mail to Mr. Dale asking that the action
be initiated, or an assurance to the Council that
it had already been executed. "As I have not
received any information since my email to you on
July 23, I was wondering if you received it, and if
so, what is the current status of the action resulting
from the July 19 Council approval of Order #11?"
Mr. Foster said that the Town had hired the firm of
Jensen, Baird, Gardner and Henry, not solely Mr. Dale,
and that if Mr. Dale was too busy to respond that
they could and would contact another attorney from
that firm.
Councilor Skip Crane asked Mr. Berkowitz to provide
him with the contract or other paperwork regarding
Town Attorney Dale's position with the Town, wondering
when it expires and if the Town should consider putting
together a Request for Proposals in looking for another
Attorney to represent them. Mr. Berkowitz cautioned
the Council against that, saying that other firms
may have a conflict with the Town, citing, for example,
Mr. Dan Walker's position with Bernstein, Shur and
his representation of the Gray Public Library Association.
Vice-Chair Andy Upham was concerned that the Town
had not had a response to their request for action
and said that if Mr. Dale was too busy that they would
seek alternate measures.
