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Importance of Open Search Process for Next City Attorney

From: domainremoved <Lynne>
Date: Mon, 2 Dec 2019 17:43:14 -0800

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Hello Council,

I am posting to CCIN the memo I brought to your closed door session today regarding the City Attorney recruitment process. I am also attaching a PDF of the same along with links to the attachments. I was surprised to see the current City Attorney present, at least for the public comment section. While I do not know the protocol for these sorts of deliberations, I hope that the City Attorney excused himself before Council started discussing the topic, so that Council members could discuss the matter more openly than they might should he be present for the discussion.

Lynne Bramlett

To: City Council
From: Lynne Bramlett
Re: Importance of an Open Search Process for next City Attorney
Date: Dec 2, 2019
Introduction
The City Attorney selection process offers Council a major opportunity. An open search process should be seen as a prudent Council decision. It should not be seen as a rejection of the City’s current law firm. After all, the current law firm can apply for the position and, after the open search process is over, Council may decide to continue the status quo. However, an open search process gives Council the opportunity to show voters that you consider new thinking and that you don’t just rubber stamp the status quo. It also gives Council the opportunity to:

1. Feel Confident in your Decision. An open search process, guided by an advisory committee and with the help of a professional executive search firm, will give Council time to fully evaluate all options. The time is not right for a routine rubber stamping.

2. Follow Personnel “best practices” recommended by the Institute for Local Government. The Institute recommends that cities “consistently make a concerted effort to advertise widely for open positions.”

3. Consider the financial savings of bringing the City Attorney role in-house versus contract. The City’s legal needs are consistently high enough to consider an in-house solution. This year, the City’s additional fees for legal services are budgeted at $633,000. The Current City Attorney receives $11,000 monthly from the City of Menlo Park for 60 hours of retainer work. His fringe benefits were worth $58,470. However, the 60 monthly hours are not nearly enough for the City’s legal needs. Anything beyond the 60 hours is billed at hourly rates.

4. Consider the intangible benefits of having the City Attorney in-house. An in-house City Attorney would have more opportunities to informally interact with all levels of employees. The City Attorney would be in a better position to learn about activities, however well-meaning, that violate ethical considerations or California law. The City Attorney could then proactively institute measures to avoid or reduce legal risks.

5. Establish your goals for the candidate profile. If Council just appoints the Assistant City Attorney into the role, Council will miss your opportunity to develop a profile of the ideal City Attorney, and then to consider a range of applicants. For example, you might decide that the City Attorney must have excellent writing skills so that you can quickly read and absorb contracts, resolutions and staff reports.

6. Consider if the public is adequately protected against conflicts of interest. The lawyers at the City Attorney’s law firm represent both public entities and developers/builders in the same practice areas. In other words, the same attorneys may represent the City and also developers and builders doing business in Menlo Park. An open search process would give Council the opportunity to evaluate if the City has adequate safeguards against conflicts of interest. Or, you may decide to go with an outside law firm that only represents public entities and non-profits.

7. Revisit City Attorney reporting requirements. An open search would allow Council to determine what kind of reports you would like to see from the City Attorney, and how often.

8. Evaluate adequacy of current legal advice. It’s reasonable to ask if the current mechanism is adequate to protect the City against risk. There are multiple laws that the City has not proactively followed. In other words, the City needed the threat of a lawsuit (Housing Element update), or reminders from residents (to establish a Debt Management Policy), to take needed action. In Nov 2019, a law firm representing the Natural Resources Defense Council wrote Council (via CCIN) to advise Council that the City “has failed to comply with state regulations requiring the submission of annual reports to DWR regarding” the City’s “permit program for irrigated landscaping. The important SB1000 Environmental Justice law should also have been proactively brought to Council and Staff’s attention.

9. Use the opportunity to establish current values. The City’s Values Statement is posted at the HR website. The City Attorney search gives Council an opportunity to discuss and agree on a short set of values that can become “guiding lights” for all decisions.
The rest of this document provides background information that I hope will be helpful.

City Attorney 2019-20 Budget[1]
The City Attorney is paid $11,000 per month, plus fringe benefits, for 60 monthly hours of retainer work. The large amounts for “services” show that Menlo Park consistently needs additional legal services beyond the 60 monthly hours. This year, services average $52,750 per month.
City Attorney’s Office Budget – 2019-2020



2016-17
Actuals

207-18 Actuals

2018-19 Est. Actual

2019-20 Adopted Budget

 SALARIES AND WAGES SUBTOTAL

$117,231

$120,659

$122,192

$132,000

CalPERS Pensions)

$21,712

$22,649

$23,567

$26,550

Insurances (health, dental, vision, life, Medicare)

$35,025

$35,599

$37,403

$27,512

Workers’ Comp, OPEB Allocations, other

$5,393

$6,767

$16,300

$4,455

FRINGE BENEFITS SUBTOTAL

$62,130

$65,014

$77,270

$58,517

OPERATING









Operating expenses

$864

$914

$19,000

$2,206

 SERVICES

$446,234

$528,520

$629,000

$633,000

In addition, developers and builder reimburse the City for legal fees charged by the City’s Community Development Department as a requirement for doing development work in the City. Developers pay legal fees that are not listed in one section of the annual budget document. Instead, readers are pointed to “various project funds” for information about “legal costs for development review and specific projects.” If the City’s legal work was performed by a full-time, in-house City Attorney, Menlo Park could potentially save a significant amount of money. Or it’s possible that another law firm might charge less for the legal services.
Current City Attorney Contract[2]
The City Attorney and the City have a professional services agreement. The City Attorney receives $11,000 monthly for providing 60 hours per month for retainer services. The City Attorney also receives generous fringe benefits. (I was unable to determine if the fringe benefits were pro-rated to reflect the City Attorney’s part-time role.)
The City Attorney’s firm charges the below fees for additional legal services:
Legal work for the City


• $250 per hour for services that exceed the $11,000 monthly stipend. Services can be provided by the City Attorney, other partners and “of counsel” attorneys within the Attorney’s firm;

• $225.00 per hour for legal services performed by associates of the firm; and

• $125.00 per hour for services performed by paralegals, law clerks, and legal assistants.


            Developers pay for legal services for their development projects processed by the Community Development Department, excluding single family housing projects. The City collects the money, but it ultimately goes to McClure’s law firm. The exact process is not detailed in the budget document. If the City moved the City Attorney position in-house, the City might be able to collect/keep the fees paid by developers.
Legal work for developers with projects before the City


• $400 per hour for legal services provided by Attorney, other partners and “of counsel” attorneys within Attorney’s firm;

• $275.00 per hour for legal services performed by associates of the firm; and

• $145.00 per hour for services performed by paralegals, law clerks, and legal assistants.


City Attorney – Role[3]
            California cities have diverse legal requirements. Gov Code Section 36505 provides that a General Law city may appoint an attorney to be its legal advisor. All City Attorneys, whether appointed or elected, in-house or contact, share certain basic responsibilities imposed by city charters or by state law (Govt. Code Sections 41801-41803). The original description for the City Attorney’s role is detailed in Mr. McClure’s Sep 7, 1993 hiring contract. The role might not have been formally updated since 1993.


San Mateo County Cities – In House or Contract
Cities

2017 Population

City Attorney

In House or Contract

Started Position

Daly City

109,287

Rose Zimmerman

In House

2006

Redwood City

85,601

Veronica Ramirez

In House

2016

South San Francisco

65,451

Jason Rosenberg

Contract: Meyers Nave

?

San Bruno

45,295

Marc L. Zafferano

In House

2011

Pacifica

38,124

Michelle Marchetta Kenyon

Contract: Burke, Williams & Sorensen, LLP

2001

Menlo Park

35,670

William (Bill) McClure

Contract: Jorgenson, Siegel, McClure & Flegel, LLC

1993

Foster City

33,225

Jean B. Savaree

Contract: Aaronson, Dickerson, Cohn & Lanzone

1997

East Palo Alto

30,340

Vincent Ewing

In House

2009

Burlingame

30,148

Kathleen A. Kane

In House

2012

San Carlos

29,311

Greg Rubens

Contract: Aaronson Dickerson Cohn & Lanzonie

2008

Belmont

27,594

Scott Rennie

In House

2011

Millbrae

23,168

Joan Cassman

Contract: Hanson Bridgett, LLP

1989

Hillsborough

11,753

Christopher Diaz

Contract: Best Best & Krieger, LLC

?

Atherton

7,148

Searching for new City attorney now

Was by contract with William B. Conners & Associates

2019

Woodside

5,666

Jean Savaree

Contract: Aaronson, Dickerson, Cohn & Lanzone

2004

Brisbane

4,722

David Kahn

Contract: Renne, Sloan, Holtzman & Sakai law firm

2013

Portola Valley

4,707

Cara Silver

Contract: Jorgenson, Siegel, McClure & Flegel, LLC

2017

Colma

1,506

Roger Peters

Contract: Best, Best & Krieger, LLC

1995



Cities with Populations 41,000-45,000 – In House or Contract
Menlo Park’s population may be 41,000-45,000 in the 2020 Census. According to the League of California Cities 2017 City Population Rankings list, currently Menlo Park has a population of 35,670. The below comparison data, based on online research, may help Council’s open search process for a new City Attorney. I’ve also done preliminary research regarding budgets but was not ready by the time of your meeting today.
Cities

Population[4]

City Attorney

In House

Contract

Contract Law Firm

El Centro


45,628

Elizabeth L. Martyn Evans



X

Cota Cole & Huber, LLP

Coachella

45,551

Carlos Campos

X





Newark

45,422

Kristopher Kokotaylo, interim city Attorney

X





San Bruno

45,295

Marc L. Zafferano

X





Brea

44,214

James L. Markman



X

Richards, Watson & Gershon

Morgan Hill

44,145

Donald Larkin

X





Lompoc

44,042

Jeff Malawy



X

Aleshire & Wynder, LLP

Danville

43,355

W. Clarke Whitfield, Jr.

X





Rancho Palos Verdes

42,884

William W. (Bill) Wynder



X

Aleshire & Winder LLP

Bell Gardens

42,824

Arnold Alvarez-Glasman



X

Alvarez-Glasman & Colvin

Campbell

42,726

William R. Seligmann



X

Law Offices of William R. Seligmann

Rohnert Park

42,067

Michelle Marchetta Kenyon



X

Burke, Williams & Sorenson, LLP

Oakley

41,199

Derek Cole



X

Cota Cole & Huber, LLP

San Gabriel

41,020

Keith Lemieux



X

Olivarez Madruga Lemieux O’Neill, LLP




Law Firms – Public Only or Both Public and Developers/Builders
The below chart includes law firms on 1) Institute for Local Government Partner Program list; 2) Law firms used by San Mateo County cities; and 3) Law firms used by cities with 2017 populations between 41,000-45,000. When considering a firm that represents both public entities & developers/builders, a larger firm might separate the practice areas so the same lawyers don’t represent municipal clients and developers/builders doing business before the city.
Firm

Nearest Local Branch

Exclusively Represents public entities (and non-profits)

Represents both public entities & developers/builders

Aleshire & Wynder, LLP

None

X



Aaronson, Dickerson, Cohn & Lanzone

San Carlos



X

Alvarez-Glasman & Colvin

Yountville



X

Best, Best & Krieger, LLC

Walnut Creek



X

Burke, Williams & Sorensen, LLP

San Jose



X

Cole Huber, LLP (changed name from Cota Cole & Huber)

Roseville

X



Hanson Bridgett, LLP

San Francisco



X

Jorgenson, Siegel, McClure & Flegel, LLC

Menlo Park



X

Kronick Moskovitz Tiedemann & Girard

Sacramento



X

Liebert Cassidy Whitmore

San Francisco

X



Myers Nave

Oakland



X

Olivarez, Madruga, Lemieux, O’Neill, LLP

Los Angeles



X

Renne Public Law Group® LLC

San Francisco

X



Richards, Watson & Gershon

San Francisco



X

William Seligmann Law Offices

Santa Cruz



X




History -- City Attorney’s Office[5]
            Since Menlo Park’s incorporation in 1927, the City has had five City attorneys. The city attorney position was likely never publically posted with an open search process. Since 1961, the City Attorney position has been filled by lawyers working for the Jorgenson, Siegel, McClure & Flegel, LLP law firm.
Years

# of Years

City Attorney

1927-1933

7

James O’Keefe, Sr.
He wrote the city incorporation papers). His son became the next city attorney.

1934-1960

26

James (Jim) T. O’Keefe, Jr.
O’Keefe, Jr. is the son of the first city attorney.
John Jorgenson was the assistant City attorney to O’Keefe. When O’Keefe left to take elective office, Jorgenson became the City Attorney.

1960-1985

25

John D. “Jack” Jorgenson
Jorgenson founded a Menlo Park legal firm in 1960. Later that year, John Cosgrove joined the firm. In 1974, Martin Siegel joined the firm.

1985-1993

8

John R. “Jack” Cosgrove
Worked for Jorgenson’s law firm.

1993-Present

26

William L. “Bill” McClure.
Mr. McClure joined Jorgenson’s law firm in 1978.
A March 14, 2019 Daily Post article (“City Attorney says he will retire”) states that Mr. McClure “has provided legal services to the city for some 40 years. …McClure worked for previous city attorneys Jack Jorgenson and Jack Cosgrove, and he was Cosgrove’s assistant city attorney.”

            As per the firm’s website, Jorgenson et al has 16 lawyers and six major practice areas. The firm represents both sides in several practice areas. Thus, it’s possible that the City Attorney (and his associates) represent both developers/buildings doing business in Menlo Park and the City.
            Portola Valley also works with the Jorgenson et al law firm.


Jorgenson et al Practice Area (from their website)


Attorneys

Our Land Use attorneys represent a variety of private parties in connection with land use strategy as well as obtaining entitlements. Areas of experience and expertise include all aspects of CEQA compliance, including analysis of environmental documents; general plan, zoning and Subdivision Map Act approvals; permitting issues under special regulations (such as the California Coastal Act); representation before local as well as regional governmental agencies; negotiating and drafting of development agreements and redevelopment agency agreements; and facilitating LAFCo annexations. Because our Land Use attorneys also have vast experience with counseling municipal and public law clients, they bring a keen perspective to private development clients as the attorneys understand the collaboration which must occur between the public and private sector for projects to move forward.


• Jennifer A. Bregante Beyers

• William L. McClure

• Kent Mitchell

• Leigh F. Prince

• Mindie S. Romanowsky

• Dan K. Siegel

• Cara E. Silver

Our Real Estate attorneys represent real estate investors, developers, buyers, sellers, owners, managers, landlords and tenants in a wide array of commercial and residential real property matters. Our expertise includes negotiation and drafting of purchase and sale contracts, financing and construction documents, leases, licensing arrangements, easements, joint development agreements, joint ownership agreements, CC&R’s, and other transactional documents that effectively assist our clients in investing, buying, selling, owning, developing, leasing or improving property. We work diligently to achieve balance between protecting our clients’ best interests while respecting the business realities of the modern real estate environment.


• Jennifer A. Bregante Beyers

• Gregory K. Klingsporn

• William L. McClure

• Kent Mitchell

• Leigh F. Prince

• Mindie S. Romanowsky

• Dan K. Siegel

• Cara E. Silver

Our Municipal and Public Law attorneys represent public sector clients on a variety of levels including serving as City Attorneys for two cities, serving as special counsel for numerous other cities and representing special local districts including a fire district, a water district and a community services district. Our areas of expertise include drafting and implementation of zoning and land use regulations; enforcement of municipal codes; negotiating and drafting joint powers agreements; negotiating and documenting formal bidding and informal solicitation for governmental procurements, as well as professional service contracts with architects, engineers, financial advisors and other consultants and providing advice with all aspects of the public construction contract process. As a result of our long standing involvement in the public sector, we are well versed in a broad range of municipal issues that agency officials face, including open meeting laws (the Brown Act); conflicts of interest and economic disclosure (the Political Reform Act), public access to information (the Public Records Act); competitive bidding and procurement of goods and services (the California Public Contract Code); and litigation against governmental agencies (the California Torts Claims Act and writs of mandate).


Jennifer A. Bregante Beyers

Nicolas A. Flegel

William L. McClure

Leigh F. Prince

Mindie S. Romanowsky

Dan K. Siegel

Cara E. Silver


Attachments:

• Values statement<https://www.menlopark.org/DocumentCenter/View/15836/OUR-values?bidId=> (from HR website)

• City Attorney Office 2019-20 Budget<https://www.menlopark.org/ArchiveCenter/ViewFile/Item/9688> (pages 66-67)

• Examples of recent City Attorney contracts and related (Cupertino,<https://www.cupertino.org/home/showdocument?id=10889> Sacramento<https://sacramento.granicus.com/MetaViewer.php?meta_id=515925> and Lincoln)<https://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/129657/10E_Final.pdf>

________________________________

[1] City of Menlo Park Fiscal Year 2019-20 Adopted Budget (pages 66-67)

[2] Staff Report 19-047-CC (3/12/2019): Approval of seventh amendment to the agreement of services for City Attorney William L. McClure.

[3] “Stepping into the Evolving Role of the City Attorney” by Sonia R. Carvalho, John Guinn, and Marsha Jones Moutrie. League of California Cities Conference. 2 May 2012. Accessed Nov 24, 2019. Online.

[4] California Cities Ranked by 1/1/2017 Total Population. Obtained from League of Calif. Cities website.

[5] Menlo Park Historical Association website. An In Menlo article (July 15, 2016) states that Jorgenson was the City Attorney from 1960-1985. Jorgenson likely started in 1960 and officially became the City Attorney in 1961.



Received on Mon Dec 02 2019 - 17:34:51 PST

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