Kahn – Contract with City

Ben Kahn was one of four candidates interviewed by the Salida City Council, including three having municipal law experience, and Mr. Kahn, who had none.  He was selected by Salida City Council and hired as Salida City Attorney on March 15, 2016. The documents relating to the terms of his employment include a contract, a fee agreement at $225/hour plus, and proof of insurance, including professional liability insurance of $500,000.  Kahn drafted his own Scope of Work and those for the Mayor and the Mayor Pro-Tem.  Records relating to his employment include the following:

  • Ben Kahn is interviewed by City Council at a Work Session on February 25, 2016 (see YouTube video, at 01:01:20-01:51:55)
  • Ben Kahn is selected in a 4 to 2 vote of City Council at a Council Meeting of March 2, 2016 (page 5 of minutes).
  • RES 2016-27 approving a professional services agreement with Ben Kahn as City Attorney is passed by Salida City Council on March 15, 2016 (pages 16-30 of meeting packet).
  • RES 2016-51 adopting the Scope of Work of the City Attorney by a 4 to 2 vote on May 17, 2016 (minutes, page 6 and packet pages 101 to 105).
  • RES 2016-49 and RES 2016=50 adopting the Scopes of Work of the Mayor and the Mayor Pro-Tem on May 17, 2016 (minutes, page 5 and packet pages 95 to 100) is passed giving the Mayor and the Mayor Pro-Tem the power to “direct and control” the City Attorney “with the assistance of the City Council.”

In spite of the phrase “with the assistance of City Council” in the Scopes of Work resolution adopted by City Council in defining the power of the mayor and mayor pro-tem to direct the City Attorney, Kahn advised that the power of the mayor and mayor pro-tem could be exercised with neither action nor even prior knowledge of City Council, and without inclusion on City Council’s agenda:

Mr. Kahn: “With respect to Councilmember Rogers’ concerns about the full council’s involvement, again, I think, you have to understand our form of government.  The city council represents the city by a majority, and so does your mayor. Your mayor is the chief executive officer of this city under our municipal form of government. He has just as good a right as you do as a body to make certain decisions and to assign certain tasks, and that includes supervising the city attorney, which is spelled out in the Scope of Work you’ve adopted by resolution.  So, nothing has been done, um, on behalf of the city that wasn’t authorized.” (See YouTube video of 9/20/2016 Council meeting at 02:47:24)

The same point was addressed by Lee Phillips, another candidate for Salida City Attorney in his interview before Council, in his interview before Council on February 24, 2016.  He viewed the issue differently:

* * *  “The law is crystal clear on this.  My client is the governing body of the municipality. And it’s very difficult to thread that line.”  * * *  “You know most members of city council, town boards, commissioners, understand their roles.  And I help them understand mine, and that’s that they serve as a body, not as individuals.  And on occasion over the years I’ve had to explain to elected officials that this is a governing body.  You need 4 votes, you need 3 votes, you need 5 votes, or whatever the magic number is.” (Interview of municipal lawyer Lee Phillips, YouTube video and transcript at 01:17:30.)

Colorado law controlling statutory cities dictates that city council as a whole is the governing body, or policy making authority, not any one member.  By following the law as explained by Mr. Kahn, the mayor and the mayor pro-tem have undertaken to direct and control the city attorney as individuals. So accountability for Mr. Kahn’s work, its cost, and its consequences, lies with the mayor and the mayor pro-tem.


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