Time to Reconsider the City Attorney Contract?

This week sees the council facing a consent item on the city’s contract with Best, Best and Krieger for the city attorney services provided for the most part over the last 26 years by Harriet Steiner.

According to the staff report, the city attorney costs are billed through a contract with a law firm through time and materials basis.  There is a great amount of variability on costs year to year.

The budgeted amount for general legal services for this year was $504,558. City staff believes that it is likely that the amount budgeted for next year will be similar.

According to the staff report, “Compensation varies depending on the type of service provides, but the rate for basic city attorney services will be $190/hour, compared to the current $180/hour.

They add, “Non-basic services will be billed according to the individual attorney performing the service and will range from $240 to $315. In addition, rather than billing at an hourly rate for attendance at City Council meetings, the City will be charged a flat rate of $800 per meeting. Over the course of a year, the flat rate for meetings will provide savings to the City.”

The staff report also provides a history of the relationship between Harriet Steiner and the city and the search last year after the demise of McDonough Holland and Allen that resulted in the hiring of Harriet Steiner through her new firm of Best, Best and Krieger.

Staff writes: “From 1986 to the summer of 2010, the City contracted with McDonough Holland and Allen (MHA) to utilize the legal services of Harriet Steiner and a team of public law attorneys at the firm. However, during the summer of 2010, MHA dissolved, and the public law team, including Steiner, moved to the firm of Best Best and Krieger (BBK). Since that time, the City has had an interim agreement in place with Best Best and Krieger, while the City Council engaged in a process to determine a permanent solution.”

The report continues: “After research and discussion about the ways in which the City could receive legal services and what legal services are most critical, the City Council developed and released a Request for Qualifications in late winter of 2011. Nine firms submitted qualifications. Of these, the Council chose to interview four firms in June of 2011. Upon conclusion of the interview process, the Council chose to negotiate with Best Best and Krieger, with Harriet Steiner as the primary city attorney. The attached contract is the result of those negotiations and is recommended for approval.”

The Vanguard now believes, based primarily as to 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.

For starters, the city has been undergoing a massive change in leadership from the council to the city manager and now the finance director.  There are of course two schools of thought here, one is that Harriet Steiner is the one who, as city attorney knows where the proverbial bodies are buried, can therefore be an asset in helping reform.

Moreover, in a time of new council and city management leadership, she remains the one with the institutional memory.

On the other hand, as we just noted, perhaps it is simply the case now that Harriet Steiner is part of the problem – and in fact, a part of a number of different problems that are a hindrance rather than an asset to change.

The Zipcar situation has largely resolved itself in a manner favorable to the city, but it is true that the original contract was not nearly as tight as it should have been.  And in fact, as many pointed out, what was contained in the written contract was not what the city was purporting it to be.

The city may have had oral assurances, but the city attorney left language wide open that could have exposed the city to enormous liabilities and commitments.

Then you have the DCEA (Davis City Employees’ Association) impasse that will likely have cost the city about $800,000.

The impasse was the city’s screw-up.  They imposed impasse before they had exhausted other remedies.  And frankly, they used impasse at the wrong time, with the wrong bargaining group.  They should have used it with the firefighters at the start of the process, rather than the rank and file at the end, to simply bring them up to the inadequate contract that the rest had.

As we noted at the time, the council pays staff and the city attorney to advise them how to proceed in such technical matters.  At least one councilmember from that time questioned the advice they got from staff.

As City Attorney, Harriet Steiner ought to bear primary responsibility for this mistake that has cost the city nearly $1 million.  And yet, to date we do not believe anyone has faced any kind of consequence.

Then we have the continuing DACHA (Davis Area Cooperative Housing Association), mess with the city claiming one figure for legal costs and David Thompson and Luke Watkins claiming another.  We can debate all day as to whose fault those expenditures are.

However, what is clear is that it appears that David Thompson caught Harriet Steiner in an error.

As he noted, “I have all of the information and to me it’s pretty clear that Harriet is not telling the truth. Her remarks are preposterous.”

He added, “It’s clear that 57 submitted documents were omitted, amounting to 420 pages of testimony.”

The Vanguard did not get an opportunity to view the documents, but several who have, have informed the Vanguard that it appears a large quantity of documents were omitted.

According to Mr. Thompson, “63% of the testimony provided to the City of Davis by Twin Pines Cooperative Foundation (TPCF), Neighborhood Partners (NP) and other parties for the DACHA Dissolution Hearing were omitted by the City Attorney from submission to the California Attorney General.”

He adds, “Among the 400 missing pages are all the rent rolls, all the minutes of board and membership meetings and most of the evidences of wrongdoing and alleged illegal actions by DACHA and City staff.”

“Without having these missing documents the Attorney General is completely prevented from having the evidence and proof of the eligibility and validity of; membership votes, board of director votes, legal quorums, improperly called meetings, self-dealing transactions, illegal loans, and numerous other acts which are at the heart of the two lawsuits against DACHA and the City,” he said.

Of course, Harriet Steiner denied the allegations.

She claims, “The city did in fact send everything it received, including anything submitted by the Twin Pines Cooperative Foundation and Neighborhood Partners.”

“The city sent every single piece of paper to the attorney general,” Ms. Steiner told the Enterprise in Late April. “We sent everything that was part of that hearing transcript to the attorney general.

“(We) put together everything that was involved in the hearing process, including all of things that were submitted by David (Thompson).”

When asked to comment that it did not appear to be the case, the Vanguard received no response.

This issue aside, the Vanguard has long had concerns as to the work that Ms. Steiner performed on DACHA.

There is an additional problem here as well, and that is that the city contract actually at least tacitly awards and incentivizes lawsuits.  Ms. Steiner and her firm are paid by the hour.  She gives legal advice to the city.  And when the legal advice leads to lawsuits, she receives money for that as well.

Some cities have attempted to deal with this inherent conflict of interest, by separating their advice attorney from their litigation attorney.  Davis does not do this.

We also note two other incidents in which Ms. Steiner was at the center of controversy.

There was the the city’s last-second legal brief by City Attorney Harriet Steiner legal brief on the legality of the voter referendum on what where the city attorney wrote, “In our opinion, the City’s newly-adopted water rates are not subject to challenge by referendum.”

However, not everyone agrees with that legal opinion.  Even Harriet Steiner acknowledges there is a lack of case law, “We  must note that there are no post-Proposition 218 cases that are directly on point.”

Her argument is that the absence of reference to referendum in Prop 218 suggests a continuation of prior case law.

“Proposition 218 expressly allows initiatives to reduce or repeal any local tax, assessment, fee or charge. However, Proposition 218 only addresses initiatives and it is silent with respect to the power of the referendum.”

Harriet Steiner opines, “In our opinion, this silence leads to the conclusion that prior case law is still valid and that water and other utility rates adopted pursuant to Proposition 218 are not subject to challenge by referendum.”

Michael Harrington, a Davis aviation law attorney and former city councilmember who has headed up the referendum along with Ernie Head, sent the Vanguard a very strongly-worded response.

He said: “My legal research before prosecuting the referendum indicated that we had a valid and effective avenue to force repeal or a freeze on the hikes pending an election.”

Ultimately, the city chose to sidestep the controversy, however, it triggered a good amount of anger.

Mr. Harrington would later email the city stating, “The City Attorney memo is a direct attack on the civil rights to petition our government and to vote.  A violation of a constitutionally protected civil right is actionable and leads to damages, declaratory and injunctive relief.”

He added: “If that memo is not retracted in full, the voters have been harmed, and legal action would be available if the victims wished to sue.”

The timing of the brief, dated November 15, angered many who saw it as a last-second attempt by the city to thwart the will of at least 3800 to 4800 residents who participated either in the Prop 218 process or signed the referendum petition.

Finally, as the city once again takes up the Crown Castle issue, many have been critical of the city for failing to fight back against Crown Castle as hard as they could.

Councilmember Dan Wolk, in contrast to his colleagues and legal staff to the city, believes that the issue is more complicated legally than many think.

A number of other communities have been much more aggressive and willing to challenge Crown Castle and other entities on these types of matters.  However, the City of Davis and the city council is concerned with finances right now, and believe that legal battles would not be worthwhile in the face of deep cuts already expected this June.

In fairness to Harriet Steiner, this is as much about the council’s risk aversion as her legal advice, but at the same time a more aggressive position by the City Attorney may have emboldened the council not to lie down on this issue.

The bottom line is that, after 26 years, it is time for the City of Davis to look toward a different direction.  This may be the opportunity to do so.  It appears the city needs a fresh start.

—David M. Greenwald reporting