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Fort Myers Beach Council clashes over town attorney

Accusations leveled that councilmembers solicited new town attorneys without town council approval

By Nathan Mayberg - Editor | Jan 24, 2023

Town of Fort Myers Beach Councilmember John R. King

In the latest personnel shakeup initiated by a new Town of Fort Myers Beach Council, Town Attorney John Herin Jr. and his firm Fox Rothschild are facing the possibility that their days serving the town are numbered after the council voted 4-1 Monday to request proposals for a new town attorney.

The discussion included accusations by Councilmember Bill Veach against Councilmembers John King and Karen Woodson that they had violated the town council’s policies and procedures by soliciting a new law firm without any official vote by the town council to do so.

The talks Monday were initiated by Interim Town Manager Keith Wilkins, who referenced a letter from a Fort Myers law firm seeking to provide services to the town.

According to the Jan. 19 letter from the law firm of Boy Agnew Potanovic Miller to the town council, they were approached by councilmembers John King and Karen Woodson through communications in which they were told the Town of Fort Myers Beach is looking for new counsel.

The only issue with that is the town council never took any official action to request proposals for new counsel before Monday’s meeting. King and Woodson said they approached the firm on their own accord.

Town of Fort Myers Beach Attorney John Herin Jr. (right) has been town attorney since 2016. The town council voted 4-1 Monday to request proposals a new town attorney. Photo by Nathan Mayberg

In a letter to the town, John Agnew and John Miller of the law firm stated “Through communications with Council Members Karen Woodson and John King, we understand the Town of Fort Myers Beach is seeking a new firm to provide Town Attorney services. With that understanding, and pursuant to a request for a proposal from Council Member Woodson, it is with pleasure that the law firm of Boy Agnew Potanovic Miller, PLLC makes this proposal to provide Town Attorney services to the Town of Fort Myers Beach.”

Shortly after taking office, Woodson stated at a town council meeting that she had been approached by a law firm in the area seeking to serve the town council as its attorney though that idea was shot down by Vice Mayor Jim Atterholt at the time.

On Monday, Atterholt joined Mayor Dan Allers, King and Woodson in voting 4-1 on a resolution to seek proposals for new counsel. Veach voted against the measure.

While Atterholt voted to move forward with seeking a new town attorney, he rejected an attempt by Woodson to give Herin and his law firm 30 days notice of separation before even having an attorney to replace him.

“There has been a sort of previous concern or thought that we needed local counsel and I have always subscribed to that in a perfect world but we also want to have good counsel,” Atterholt said. “Should we have an RFP first to see if we can find good local counsel and then if we do we can give notice? I am wondering if that would be procedurally better than giving notice and then we don’t have counsel.”

Town of Fort Myers Beach Councilmember Karen Woodson unsuccessfully pushed to oust town attorney John Herin Jr. and pushed for the town to issue a special exception permit for the controversial lagoon walkover despite pending litigation against the town over its approval of the 298-feet boardwalk. FIle photo

Allers, who voted against Herin’s reappointment last year, asked Wilkins for his opinion. Wilkins said the town’s council policies require the town to put out a request for proposals before hiring a new town attorney.

Herin said the town’s policies and procedures require a competitive procurement process that would include interviewing the candidates. “If there is a majority vote here to terminate my services under the existing agreement at the end of 30 days, my firm would vacate this position and if you haven’t selected somebody to replace us you would technically be without a town attorney.”

Woodson then amended her resolution to ask that Fox Rothschild replace Herin with another attorney while the town sought a new law firm for the town. The council rejected that amendment though it voted 4-1 to request proposals from law firms.

Woodson, who has a background in corporate human resources and previously voted to suspend Town Manager Roger Hernstadt after he already submitted his resignation, spoke on Monday about why she started the process of finding a new town attorney.

“I basically initiated this meeting,” Woodson said. Woodson said she met individually with John Miller (and) John Agnew from the law firm. “It was a private meeting. I was told at that meeting that John King had also reached out to them however we were not in the same meeting.”

Woodson said “my personal concern, the town attorney in this case had a very long history with the town manager. Part of our change strategy has been and continues to be that we are going to start fresh. We are committed to culture change. We are committed to doing things differently. We have talked about, as part of that change of strategy, maybe that is in leadership, maybe that’s in experts in the field, you know maybe it’s possible staff but in any case we need to move forward with that commitment to the culture change, how we do our business, the leadership, the trust, having everything transparent as we move forward.”

King and Woodson had campaigned stridently against Hernstadt in their quests to be elected to the town council.

Herin, addressing Woodson, said “my ethical obligation is to the town and the town council, not the town manager and whoever that may be.”

Veach accused Woodson of violating the town council’s policies and procedures by soliciting new town counsel without any official action from the town council.

“This throwing around, like you say, that there is a lack of trust in John without any kind of basis, without any kind of evidence I think is insulting to him. I think that, two, the change you are talking about comes with a huge cost in the loss of institutional knowledge. You look at the positions that we have open now, high-level positions, a lot of those vacancies come with a huge absence of institutional knowledge. It becomes more and more difficult for us to continue to try to progress while we are digging ourselves a hole and the loss of more and more institutional knowledge. I have never in my dealings with John had any reason to not trust him.”

Veach called Herin’s service to the town to be “admirable. He has been honest and forthright with me in every evidence. I don’t think that change for change sake at the expense of institutional knowledge is a healthy thing for our town.”

Woodson said “everyone has their opinion about who they trust and who they don’t trust. I did state this is my personal feeling.”

Veach questioned King as to why he approached the firm about legal services. King said he spoke to a local attorney who was interested in representing the town but backed out.

“They referred me to this individual. We initiated an email contact and that’s been the extent of my contact,” King said. King said he asked the firm if they were interested and said “they expressed interest.” He sent the firm another email the previous week. “That’s when I was told (councilmember) Woodson had contacted them for a proposal and they wanted to know if we wanted to get together and talk. I said ‘not at this time. I will wait and see what was in the proposal,'” King said.

“I am going to reiterate my serious concerns,” Veach said. “Trust should be based on some evidence. If you are going to throw around trust then it shouldn’t just be a feeling or an opinion. I think it’s a disservice to John and I think it will be a disservice to the town. We’ve already lost a lot of institutional knowledge. I have some concern that it seems most of the change people are saying they want is from enforcement.”

Veach said that led him to some “concerns about the motivations for this change. If it’s a way to try to manipulate or degrade our levels of enforcement in some areas of the town.”

Atterholt said if the town council wasn’t able to find a good local law firm to represent the town, he considered Herin “a good fallback position.” Allers said “maybe nobody is interested” in the town attorney position.

The Fox Rothschild law firm is based in Miami, though Herin travels approximately four times a month or more to attend town council meetings, Local Planning Agency meetings, magistrate hearings and other meetings and has been involved in meetings with emergency response officials since Hurricane Ian.

Veach said that if the town lost Herin it would lose his institutional knowledge and the continuity of expertise “permanently.” Veach noted the town is involved in numerous legal issues that would require a new attorney to pick up on. That includes a years-long dispute with town property owner Ed Rood over building a 298-feet-long boardwalk near the Little Estero Island Critical Wildlife Area.

Atterholt said “I think institutional knowledge is important but the town is going through significant changes. Finding good local counsel could offset the loss of institutional knowledge.”

The firm of Boy Agnew Potanovic Miller cites in their letter to the town council their experience serving the city of Sanibel, serving as litigation counsel to Lee County and as employment counsel to Lee County Clerk of Court, City of Fort Myers Community Redevelopment District, Bonita Springs Fire Control and Rescue District, Lee County Supervisor of Elections, South Trail Fire District, Boca Grande Fire Control District, and the School District of Lee County.

The firm proposes rates of $265.00/hr. for partners, $175.00/hr. for associates, and $115.00/hr. for paralegals. In contrast, Herin and his firm work on a flat rate and do not charge by the hour.

The departure of Herin would add to the recent resignation of the town’s utilities director and last year’s departure of the town’s community services director.

Interim Town Manager Keith Wilkins said Herin has “a great corporate history with the town. There is not an issue he is not familiar with. He has been a solid resource for us.”