Commentary: Council Alone With Its Own Counsel?

Steiner-Harriet

Council last night did not pull the consent agenda item on the contract for Best, Best, and Krieger for the city attorney services.  It’s clear that the council supports the counsel they get from primarily Harriet Steiner; the question is really why that is the case.

Unfortunately, not only did they not question their decision by failing to pull it from the consent agenda, but they failed to explain to the public why it is that they have confidence in the city attorney.

I bring this up because on Monday, the Vanguard ran a story entitled, “Time to Reconsider the City Attorney?”

As the Vanguard argued, based primarily on what has occurred in the last six to twelve months, that the city council ought to have a public discussion as to whether it time for change.  It is not the first and will not be the last time the Vanguard has stepped out on the limb with a potentially controversially strong position.

We anticipated a strong push back, even though we believe that the we laid out a strong case that included the Zipcar situation, the failed impasse, the continuing DACHA mess, the conservative approach on Crown Castle, and the last second memo on the water referendum.

We chose broadly enough on these issues that each member of the council should have had at least one of them that they strongly disagreed with, sometimes more than one.

One might argue that Harriet Steiner, at least with her advice, avoids the big explosion that costs the city.  But going back ten years various people have shown me evidence from the failed affordable housing program to the Eoff litigation from ten years ago, that advice from Ms. Steiner has cost the city in the millions of dollars.

Of course, she has a defense for this as she expressed to the WAC back on April 26 when she told them that her job was to determine what was legal rather than the best option.  That she leaves up to the council.

In a way that makes sense, but it is hard to imagine how that helps when the advice on impasse costs the city nearly $1 million, and the impact of Zipcars could have been quite costly had other members of the community not grown alarmed.

The evidence is that the city attorney has cost money, in the past, has cost the city money in the present, and may yet cost the city money in the future.

While we anticipated strong blowback to our column from our readers, the only strong blowback we had was that they added on to the well-designed list.

Not one commenter argued against the Vanguard‘s core contention, and all we called for was a discussion.

One commenter noted, “The current City Attorney has a history of conforming legal opinions to suit the desires of the council majority, such as the preposterous notion that the water referendum could not challenge water rates. Citizens really need to ask themselves, which candidates will support hiring or retaining a new attorney?”

And perhaps there is the rub.  The council itself is satisfied with their current counsel even if the stakeholders in this community, those actually paying attention, are not.

Some have looked at the $500,000 pricetag and believe we can do better.  We do not join them.  We did an exhaustive analysis a few years ago.

Back on March 13, 2009, we asked whether Davis should continue to outsource their City Attorney Services to the law firm of McDonough, Holland & Allen who employed City Attorney Harriet Steiner.

What we saw was that on average, cities that have in-house attorneys tend to spend a lot more, either because they are larger or because they simply conduct more business that requires legal assistance.

We looked at comparable cities at that time and found this:

city%20attorney%202.jpg

We concluded: “These data suggest that while this might be an area to cut costs on the margins, we are not going to save a tremendous amount of money.”

In short, it does not appear likely that we can reduce the $500,000 price tag by going in-house.

The question should remain focused on how we get the best legal representation.  Unfortunately, the council did not even want to entertain that discussion, but we believe they are out of step with where the informed community lies on this.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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7 Comments

  1. rdcanning

    DG says: “[The Council] failed to explain to the public why it is that they have confidence in the city attorney.”

    Has the public expressed a lack of confidence in the current city attorney? Or only the Vanguard?

  2. David Thompson

    From what we can only assume from the DACHA debacle that many of the bills submitted by Steiner’s firm are paid from other sources other than the General Fund.

    Ms. Steiner refuses to answer our Public Record Act requests as to the City source of payment for various bills for DACHA.

    From what City account did the $29,000 sent by Danielle Foster to DACHA’s lawyer Hefner come from?

    Did the City Council approve that payment?

    Separately, DACHA provided a $25,000 retainer to Hefner from DACHA’s reserves. Yet the City Attorney said publicly that DACHA was not allowed to use the loan proceeds from the City for litigation.

    But DACHA did send $25,000 of its public borrowed funds and no action by the City Attorney to uphold her own words about what appears to be a misuse of City funds.

    It appears that about one million dollars has been spent defending DACHA and it had to come from one or another of our citizen pockets.

    Why won’t the City Attorney provide the information?

    David Thompson, Twin Pines Cooperative Foundation

  3. Ryan Kelly

    I agree that it is not the Attorney’s job to determine the best option, but rather to advise on what is legal.

    It looks like we run a risk of sky-rocketing costs if we bring legal services in house. I’m sure people who have a beef with the City would criticize an in-house attorney as much as a contracted one.

  4. Downtown Resident

    It seems to me that the primary financial benefit of having in-house counsel rather than outsourcing is that anticipated costs can be better budgeted because the cost of having in-house counsel should be significantly more predictable than paying as you go at $190/hour for outsourced legal services.

    In-house staff are paid salaries and benefits. These are set by agreement ahead of time for an entire year or contract period. Outsourced attorneys bill by the hour, or as apparently is now the case for Ms. Steiner, usually by the hour, except for city council meetings, for which her attendance will now cost the city $800/meeting, no matter how long the meeting lasts – 2 hours or 10 hours.

    Of course, when outside counsel must be brought in, such as when the city is faced with the need for counsel in a practice specialty that the in-house attorney is not qualified for, outside counsel still will need to be hired.

    In years of less need for legal services for the city, it would probably be less expensive to outsource. In years of greater need for legal services for the city, it would likely be less expansive to do it in-house. Unfortunately, it is often difficult to predict when the city is going to find itself facing time-consuming litigation or other legal matters. Having a relatively stable line item for legal services might help the city be able to better budget in other areas.

    The number on the chart that really stands out to me is the almost 3% of its GF that West Sac was paying for outsourced legal servioes. Does anybody have any idea how West Sac has dealt with such high legal expenses?

  5. David Thompson

    Citizens of Davis paid for 30 lawyers to work on DACHA. Here are some of the highest paid lawyers at Harriet’s firm paid with public funds from the City of Davis.

    I have the bills to the City from Harriet’s firm that the City used public funds to pay.

    Harriet Steiner $260 per hour on DACHA (2005-2006)
    Harriet Steiner $285 per hour on DACHA (2007)
    Harriet Steiner $295 per hour on DACHA (2008 on
    Nancy Lee $345 per hour on DACHA
    Mark Gorton $350 per hour on DACHA
    Patricia Elliot $375 per hour on DACHA
    John Briggs $375 per hour on DACHA
    Todd Fogarty $375 per hour on DACHA
    Tom Mouzes $375 per hour on DACHA

    I have billing records to show anyone who wants to visit my office.
    David Thompson, Twin Pines Cooperative Foundation

  6. JustSaying

    Good try, David. The questions you raised should have at least encouraged some discussion on the part of our city council members. It seems that there’s a real fear on the part of the council to deal with the many recent missteps the council has made under the legal guidance of Harriet and her expensive law firm colleagues.

    Your examples are much more significant than my own top Harriet Legal Fiasco, the city’s quickly discredited DACHA hit piece. I suspect the lies that were given official certification in the council op-ed will come back to bite taxpayers and our insurance (if the DACHA lawsuit is covered).

    Regardless of how one feels about David Thompson’s past actions, it’s difficult to see why our city attorney would advise an untruthful public statement that probably just encouraged the plaintiffs to hold out for more damages or to refuse to settle. (Harriet certainly has parlayed her city attorney position into a “rainmaker” role for her law firm.)

    A few if the questions that arise with the council’s consent agenda approach to a new contract for Ms. Steiner:

    1. Has the city-budgeted amount of $500,000 annually covered all of our legal costs during each of the past, say, five years? Or, are the high legal costs for DACHA and other legal demands charged to some other pot and, hence, hidden from public knowledge and discussion. This is an important consideration in considering the in-house city attorney question.

    2. What percentage of Davis’ legal costs are billed at the “routine” rate? And, just how much money do we expect to save by agreeing to an $800 per meeting charge, assuming that meetings are billed at the “routine” rate?

    3. Harriet, Stephen and Sue all repeatedly have resisted your call for an independent review of the city’s handling of the DACHA project. Eventually, this will have to happen and what will we discover once these three no longer are in their current positions to fight an independent investigation?

  7. Anonymous Pundit

    The only communities in your survey that are similar to Davis are SLO and Woodland. Both are spending less on legal services than Davis (in house and contracting out). Better examples are found with small cities, such as Dixon, Winters, Rancho Cordova.

    West Sacramento has a lot of issues relative to its city budget: the riverfront, the Port of Sacramento, a diverse land use mix, complications with their redevelopment agency, and a lot of front loaded development that was too much and too fast. It is not similar to Davis.

    Legal costs can and should be contained, but this misses the real issue… having a city attorney that values and provides value to the community.

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