The topic was on the agenda at the request of Alderman Richard Corzine who told the council — Alderman David Daugherty was absent — that despite repeated requests from Corzine, an up-to-date bill hasn't been received from the Law Office of Scott Bergthold in almost 3 1/2 months. Bergthold is the Chattanooga, Tenn.-based attorney who drafted the city's sexually oriented business ordinance and is defending the city and the ordinance in a case filed by Metro Pony LLC.
Corzine noted that in the agreement between Bergthold and the city, which the attorney drew up, Bergthold stated he would provide monthly billing statements to the city. Those have not been received for June, July or August, as September is half way through.
"I have a hard time trusting an attorney who would put something like that in a contract knowing a contract is a binding document and he is not willing to live by his own words in his own contract that he helped assist draft," Corzine said. "I have requested, as of the second week in July, pretty much every meeting for Mr. Bergthold to send these bills; we still haven't got them. Why put that in a contract if that's not an important issue?"
City attorney Rick Abell told Corzine he has also asked Bergthold numerous times for an up-to-date statement and noted that it's not unusual for small law firms to not bill on a regular basis.
"There's nothing untowards meant by that," Abell said. "He said last week he's working on it. I understand your frustration."
Corzine noted that previous bills from Bergthold, which cover a 3 1/2 month time span, totaled $48,000 and he expects the last 3 1/2 months of activity to at least equal that amount. "That's gonna put us right at the $100,000 mark that Mr. Bergthold stood right there and told us we should expect but it shouldn't exceed that," he said. "Well, we're at that stage and we're not in the courtroom yet; we've still got more coming. When are we gonna find out what we've actually spent? We don't know."
Abell noted that approximately $4300 of that initial $48,000 includes the drafting of the ordinance. Abell said he has told Bergthold in person, through e-mails and on the phone that a bill is needed and Bergthold has told him he's working on it.
"I can go back to him and say 'Scott, if you don't get me a bill, I'm going to let Betty start handling everything,'" Abell said, referring to Betty Knight, an attorney who primarily represents municipalities in First and 14th amendment cases hired in August by the the city's insurance company to defend the case. "I don't know if that's in our best interest but I'll do that if that's what you want me to do."
Corzine responded: "That's exactly what I want you to do and I'm gonna make that motion here in just a minute."
He then said he is "disturbed too by looking back at his bills that (Bergthold) charged $4000 as a flat fee for the drafting of the ordinance" and an additional $5100 billed directly related to the ordinance connected to a Feb. 10 ordinance discussion with Abell and Mayor Billy McDaniel and on Feb. 14 when Bergthold made a presentation on the ordinance prior to the council's vote.
"In case I'm not seeing this right, I'd like to ask the Finance Committee take a look at (the February billing)," Corzine said. "It looks to me like we've been billed for the same thing. His description say he was working on the ordinance, which sounds to me what he was going to do for a flat fee."
Corzine then made a motion that the city council terminate its contract with Bergthold "until such time as a full and updated bill is received and the aldermen are given enough time to review and question the charges that appear on the bill. I also ask the Fiance Committee take a closer look at the charges from Mr. Bergthold's firm for February 2011 to determine if the city should have paid for the services for that month due to the fact charges may have been part of the flat fee agreement made in the agreement made by Bergthold and signed by the mayor."
The motion was seconded by Alderman Kim Brown.
As McDaniel called for discussion and then roll call, Alderman Bill Carrell motioned that the topic be sent to the Finance Committee as it needs more discussion than was feasible during Monday's meeting and points were brought up that Carrell was not aware of. Alderman Charles Barfield's second of Carrell's motion superseded Corzine's motion.
The council voted 5-2 — Barfield, Carrell, David McManus, Bob Midnight and Jerry Mizell for; Corzine and Brown against; Daugherty was absent — to discuss the matter at an upcoming Finance Committee meeting.
The Metropolis City Council passed a sexually oriented business ordinance in February, which was to take effect Feb. 25. Ten days after the ordinance was passed, federal Judge J. Phil Gilbert in the U.S. District Court for the southern district of Illinois, located in Benton, granted a temporary restraining order against it following a Feb. 22 motion filed on behalf of the Metro Pony by John Schneider of the Cape Girardeau, Mo.-based Johnson & Schneider LLC.
Bergthold filed a motion for summary judgment on behalf of the city on Aug. 29. Attorneys for the Metro Pony have 30 days to respond.
In an emailed Sept. 9 memo from Bergthold to Abell and shared with the city council, Bergthold confirmed a conversation with Abell stating he will "not bill the city for services that our firm performed on the motion for summary judgement between our discussion" on Aug. 26 and when the motion and all of its exhibits were filed Aug. 29.
In other business, the council:
• Approved the provision of flu shots for full-time employees from Southern Seven Health Department at a cost of $25 on Sept. 28.
• Approved three police attend Lead Homicide and Death Investigators Training. While the training is funded through a grant, the city will provide $2623.80 for lodging, food and fuel.
• Accepted the contract with the Southern Pride Senior Program, known locally as Happy Hearts,
• Approved the closure of Girard Street between 11th Street and the Ferry Street alley from 8 a.m. until 6 p.m. Oct. 22 for a First Church of God-hosted block party.
• Approved repairs on low service pump number 4 in the amount of $5388 from KM Specialty Pumps.
• Authorized Engineering Inc. to design plans and permits for water main extension to provide water service at 1202 W. 10th St.
• Adopted a resolution to take action on paving Devers Road from Gurley Road to Hillebrand Lane in the amount of $20,000. McDaniel said the paving will be tar and chip and include the section in Woodhaven and on Eighth Street damaged by the flood. The work will be done by the Massac County Highway Department. The project will be paid for with Motor Fuel Tax (MFT) funds.
• Accepted the final invoice for the 2011 MFT Maintenance Paving Project in the amount of $24,980.
• And, heard three citizens' requests. Business owner Charlie Eichorn asked the council have a study conducted regarding the city's electric rates. Business owner J.L. Wilkins requested the city appoint a building inspector who would check that projects are needed and worth spending costs. Kitty Gullett, a local business employee, asked the council to consider passing Sunday alcohol sales.