By Sandy Schroth
The final item of business handled by the Holt County supervisors at their last meeting caused some disunity among the leaders.
As the supervisors passed time waiting to address an agenda item regarding outside counsel to handle a road-haul agreement with TC Energy, the meeting room filled with about two dozen county residents, many who are facing eminent domain proceedings for pipeline right-of-way easements across their land.
While three of those citizens, Bryan Steskal, Diana Steskal and Grace Coleman were recognized during the public comment period early in the meeting, only one would be given an opportunity to comment as the leaders pondered the proposal.
Chairman Bill Tielke of Atkinson turned the meeting over to supervisor Steve Boshart of O'Neill, due to Tielke's declared conflict of interest related to the pipeline.
County attorney Brent Kelly asked for a motion and vote to hire a well-known Omaha attorney, David Domina, to negotiate a road-haul agreement with TC Energy.
Kelly told the supervisors the agreement proposed by TCE included an offer to reimburse expense for legal review and preparation of the road-haul document. Citing his own workload, he proposed hiring outside counsel.
Kelly said Domina had agreed to a proposition that includes a fee cap of $6,000 for work on the agreement, although the supervisors would have the option to expand Domina's services into other pipeline-related areas.
"The idea being, within whatever road-haul agreement gets negotiated, TransCanada would reimburse that. If the whole thing falls apart, the most we'd be stuck with is six thousand bucks," Kelly said. "I know him, obviously he's a competent attorney and he's up to speed on these issues...He'll work for the county, it's just like any other lawyer-client relationship, you're his boss...With the amount of money we are dealing with and the passionate feelings on both sides of the issue, I think he would be a good choice."
Robert Latimer, a project manager with TCE, and Ronald Comes, an attorney with the McGrath-North law firm in Omaha that represents the pipeline builders, had presented a potential road-haul agreement to Kelly, as well as a three-inch binder of documents they presented to zoning officials as part of the Conditional-Use Permit application process.
Boshart, the only supervisor to voice opposition to the board hiring outside counsel, questioned why a "high profile trial attorney wants to do a simple road agreement," comparing the agreement to a previous agreement for wind farm construction. He suggested Kelly hire the attorney and pay the $6,000 fee out of the attorney's office budget. County clerk Cathy Pavel was consulted and indicated Kelly could cover the expense through his office budget, but reimbursement from TCE would go into the county's general fund.
"If Brent is overloaded, sorry if I offend you Brent but that's my job, why did you take on another job in another county, that adds more workload?" Boshart asked.
Kelly did not address the question other than to say he knew it would be brought up.
"There's also 20 hours of problems that have to get solved before we can start this.... issues with the county board - issues related to TransCanada, with the Accountability and Disclosure Commission, work before we even open up the first page of the agreement," said Kelly.
Supervisor Don Butterfield of Atkinson indicated the potential agreement with TCE is more complicated than others the county has entered. He said the pipeline project covers a larger area than the 70 miles of roads included in the recent wind farm project.
"I don't think this is as simple as you guys think it is," he said. "This thing is going to get serious."
Citing the CUP application, Latimer said the pipeline project includes a total of 356 miles of roadway - 72 miles of paved roads, 234 miles of gravel roads and 50 miles of "unimproved" roads.
TCE's attorney said, "We already have a haul-route with Holt County from 2011. The easy way to go would be just to amend that document to change the listing of roads...We were told that Holt County may not want to use that old form, that we should use the Grand Prairie form that was used for the wind farm. So we took the Grand Prairie agreement, changed the names and submitted that... We were told this is the format that you might want us to propose, so we proposed it. We talked to Brent about what attorney the county may want to hire."
Butterfield asked why TCE would have a say about an attorney hired by the county and if Domina was hired, would TCE pay the fee as proposed to Kelly.
"He asked us to pay for it, he asked TransCanada to pay for it," Comes said. "Either way, you can hire anybody you want to...We would suggest you didn't use Domina for a different reason. Dave Domina is a very capable lawyer. He has been in opposition to the project and he's involved in multiple lawsuits against TransCanada. That would make it difficult for him to work with us promoting a haul-route agreement."
TC Energy had suggested a lawyer who had previously represented the Public Service Commission in pipeline proceedings.
"We offered that as a suggestion. Hire whoever." Comes said. "We just suggest that Domina, because of the conflict, would not be a good choice."
Kelly addressed conflicts of interest as they apply to lawyers.
"Conflicts of interest with regard to duty of loyalty to former clients and to the current client (are) governed by the rules of professional ethics," he said. "The best person to tell you, as a perspective client, whether a lawyer has a conflict of interest is that lawyer. Lawyers are required to do conflict of interest checks before they take on a new client. That is an issue I addressed with Mr. Domina and he believes that he does not have a conflict. The rules for professional responsibility for lawyers take up conflicts. In the event this is a conflict, it would be what's called a waiverable conflict. There are certain conflicts of interest for lawyers that (are) just hard conflict, you've got to be out. There are other conflicts of interest for lawyers where the parties can say, we both waive the conflict of interest... I don't think it's a conflict of interest and neither does Mr. Domina. If it is, then we can address the issue of waiving that conflict of interest."
Supervisors Doug Frahm of Amelia and Darrin Paxton of Stuart both indicated agreement with hiring additional legal counsel but were apprehensive about choosing Domina due to the perceived conflict of interest.
"I don't want a pipeline in Holt County or in Nebraska, I am dead set against it. This smells of conflict of interest. I am afraid it will bite us down the road," Frahm said. "In my mind and other people's minds, in my family, there's a conflict of interest. I'm not saying I'm against, in any way, hiring an attorney, but I'm afraid that Dave Domina is going to look bad for the county, the county board, just based on who he is."
When asked if the county would be liable for paying the $6,000 if TC Energy does not, Kelly said yes, adding, "I think it will end up being agreed to, just because whatever document you end up with has got to have their signature on it and the county's signature on it."
Boshart contended the board should not rush into the agreement.
Kelly disagreed, "I do want to rush it, I want a vote today, I want it on record who said yes and who said no. I want to rush it because there is an effort. Every time I make a phone call to somebody, four hours later TransCanada knows what I said...If I delay this a month, that's a month for that to eat into these proceedings."
Boshart put off requests by Butterfield to proceed to a vote twice, as well as requests by Ewing supervisor Bob Snyder to hear comments from the floor, although the acting chairman said Snyder could question audience members.
When Snyder asked if he could request a comment, Boshart replied, "No. I don't want comments, I need questions."
Snyder then asked Jeanne Crumly of Page if she thought Kelly needed Domina's assistance.
"Yes," she said. "The reason why is because approximately eight years ago, Domina already wrote up a road-haul agreement just for our county and to share with other counties and townships. So he's already prepared, about eight years ago for this."
As other audience members continued to raise their hands, Boshart addressed Jim Gotshall, a local attorney, "How do we do this? I believe we don't take comments from the gallery."
Gotshall answered, although not required to, the board was free to accept comments if they desired. Boshart then gave Crumly the floor.
"You've made assertions to what Domina's position is and that's been misrepresented," Crumly said. "We've read, we've talked with Domina and we know what the agreement is with Domina and at no point ever has he said he's against the pipeline. Dave Domina's position is that he will secure the best provisions for the landowners, he will best protect the interests of the landowners, and you are the representatives of the landowners. If he's offering to best represent Holt County and secure an agreement that protects us for the long run, why would anybody pass that up? He is the best educated on this particular issue, he's read every document on it, he's offering a reasonable fee to support your county attorney, who is making this recommendation. Your county attorney is recommending it to you, and you are arguing about the benefit of it. Despite what TransCanada orTC Energy has said, Domina has never been opposed to the pipeline. He's been opposed to easements. He's been opposed to routing. He's a strong advocate of energy delivery in this country and so representing him as opposed - he's been opposed to a lot of the agreements - but he is very much in favor of protecting us all. Consider that when you figure out whether or not his voice would be an important one in this agreement."
Others continued to raise their hands to be recognized, but Boshart said public comment had been taken in the morning.
"I'm trying to stay within the rules I've been given, and I was told not to take comments from outside," he said. "I did for Jeanne, just because I have a lot of respect for her."
Butterfield made a motion to hire Domina, with Snyder providing the second. Boshart urged tabling the decision, before he called for a vote. The motion carried, 4-2. Butterfield, Snyder, Frahm and supervisor Don Hahlbeck of O'Neill voted yes, while Boshart and Paxton said no. Tielke did not vote, nor did he participate in the discussion.
Snyder again asked to hear from the public. Boshart adjourned the meeting without hearing comment, although two citizens were heard after adjournment.