Legal battles

Is the troubled term of municipal legal adviser, attorney Yossi Havilio, coming to an end?

By PEGGY CIDOR
No one seems to remember the specific trigger that set off the firefight between Mayor Uri Lupolianski and the municipal legal adviser, attorney Yossi Havilio. But all sources agree that Havilio's days at Kikar Safra are numbered, since, as a source close to Lupolianski noted, "Nobody can expect the mayor to work with a legal adviser he doesn't talk to and doesn't trust." Everyone remembers when the confrontation began: November 2003, just six months after the mayor assumed office. Lupolianski had decided to bring a list of new directors of the boards of some of the municipal companies and auxiliaries - without revealing the names of the candidates. Havilio insisted that the nominees must be personally named and that, furthermore, the opposition had been underrepresented and offered fewer directorates than it was entitled to. The mayor was not pleased. Havilio had offered his professional opinion at the request of two members of the municipal opposition, Avi Kostelitz (Jerusalem Will Succeed) and Peppe Allalu (Meretz.) The mayor ignored the recommendation so, in turn, the mayor requested that the entire item be removed from the agenda. The mayor refused, announcing that he had consulted with other attorneys, who had provided him with different legal advice. But when the opposition demanded that the mayor name his other consultants, he refused to do so. After a heated discussion, Lupolianski acceded to Havilio's position and removed the item from the agenda. Half a year later, during a meeting of the finance commission, headed by deputy mayor Eli Simhayoff (Shas), the issue came up again. Simhayoff brought up a topic that was not on the agenda. Havilio warned him that this was illegal and demanded that the item be removed. Simhayoff refused; Havilio insisted. In front of all of the members of the commission, including the civil service bureaucrats, Simhayoff publicly rebuked Havilio. Three opposition members, Sa'ar Netanel and Peppe Allalu from Meretz and Nir Barkat from Jerusalem Will Succeed, sent off a letter to the Attorney-General, Menahem Mazuz, who warned Simhayoff that he could be accused of insulting a public official in the course of fulfilling his duty - a criminal offense in Israel. But Netanel points out that Mazuz's response went even further. In the last paragraph of his response, Mazuz wrote, "The municipal attorney's job is not to be compared to a private solicitor. He is the representative of the public and thus his goal is to ensure that the municipality, including the elected members, acts according to the law... His duty is... not to serve as a private consultant." In a local radio interview later that same week, Simhayoff explained that in his opinion, "The legal adviser is here to help the mayor and not to obstruct his plans. The mayor has the right to work with an attorney who has his confidence. Since he has no faith in Havilio, he cannot work with him." That, say Netanel, Allalu and Barkat, is exactly the problem. "According to Lupolianski and especially according to Simhayoff, the legal adviser's job is to advise him. According to Mazuz, his job is to see that the law is implemented." Over the years, the situation has continued to deteriorate, following a fairly consistent pattern. The Mayor, usually supported by Simhayoff, makes a decision; Havilio opposes the decision; Lupolianski goes ahead; the opposition or the injured party take the mayor to court; Havilio refuses to represent him in court; the mayor loses in court. So it was in September 2004, when Lupolianski, skirting legal procedure, permitted two schools to use municipal facilities because the hundreds of children registered for these two schools had been left without proper classrooms. Havilio and even Amnon de Hartuch, Mazuz's deputy, opposed his decision. Lupolianski went ahead and when the opposition challenged him court, Havilio refused to allow the municipality to pay for the mayor's legal fees. It didn't help matters much that Lupolianski chose to hire an attorney from the same firm that represents the Moriah company - whose board is headed by Lupolianski himself. Or that this same firm represented the families of the victims of the Versailles disaster in their cases against the municipality. Lupolianski lost the case and had to pay NIS 10,000 from his own pocket in court fees. So it has been when Lupolianski has insisted on municipal appointments, even when there was concern over conflict of interest and even when the appointee was under criminal investigation. So it was in December 2004, when Lupolianski instructed municipal officials not to approve a request by the "Open House" for municipal support, even though municipal officials agreed that the Open House does meet the requirements for financial support. Havilio has called Lupolianski's decision unreasonable. This issue is still in court. And so it was with the Gay Pride Parade in June 2005. Although the police issued a permit, the mayor did not agree to support the parade. Havilio wrote that the refusal of support was illegal. The Open House went to court, Havilio refused to represent the mayor although he did permit the mayor to hire a private attorney at the public's expense (which will cost taxpayers $10,000 plus VAT). Lupolianski lost again. Judge Mussia Arad ruled that the municipality's decision was "unreasonable" and ordered the municipality to provide the funds and hang up the flags. He also fined the mayor NIS 30,000 (not including VAT), which he would have to pay "from his own pocket" to the Open House. Havilio's contract with the municipality ended in July 2005 and Lupolianski has not renewed it. But nonrenewal of a contract is not the same as termination of employment, and Havilio is proving to be more tenacious than expected. He's not stepping down of his own will. According to his supporters, Havilio views himself as the last bastion of the law. Says one official, "Havilio is the only one here who has the guts to defend the law against all the politicos and even against the workers' committees. Havilio is the only one who had the courage to go to court on this issue, and he won his case, as he has won all his cases." The mayor and his supporters see things very differently. In a long letter addressed to a special commission of the Interior Ministry, Lupolianski lists the reasons that he intends to terminate Havilio's employment. Havilio, the mayor contends, has poor working and personal relationships with all of the top employees in the municipality, including members of his own staff and, of course, the mayor himself; Havilio himself often skirts proper procedure and is "too hasty in requesting that municipality's employees act according to strict rules he himself disrespects." Finally, the mayor contends, Havilio has issued legal decisions at his own discretion, without consulting with the mayor and "without first even trying to reach an understanding in some other way." Havilio, the mayor insists, has been "busier opposing my plans than providing me with legal advice." Says an official close to the mayor, "More than once, I have had the feeling that Havilio doesn't really understand his mission - of course he has to represent the public and defend the law, but how can he achieve that if he merely blocks the mayor and never tries to propose legal solutions to real problems?" The official continues, "Of course Havilio shouldn't permit legal violations, but that doesn't mean that he should freeze all the mayor's plans - sometimes there are real problems to solve." Deputy Mayor Uri Maklev concludes, "The current situation is impossible, and it is affecting the running of our city. This isn't only about problems between Havilio and the mayor - it's about problems that Havilio has had with other senior personnel and elected officials as well." Maklev insists that Havilio's position is different than that of the Attorney General's. "He is first and foremost a municipal employee...but the entire way he has handled himself has been unreasonable and unacceptable." The mayor will petition the High Court of Justice if necessary, Maklev warns. "This is sabotaging our work in the municipality."