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HomeMy WebLinkAbout07 - Staffing Changes in the Office of the City AttorneyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 March 24, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David Hunt, City Attorney d hunt(a)city. newoort- beach.ca. us (949) 644 -3131 SUBJECT: PROPOSED STAFFING AUGMENTATION IN THE OFFICE OF THE CITY ATTORNEY ISSUE: Should the staffing of the Office of the City Attorney ( "OCA ") be augmented by making one part-time Deputy City Attorney position full -time and continuing the existing temporary, part-time contract attorney relationship as added staffing to address pending legal issues and the backlog of legal projects? RECOMMENDATION: Approve the request to staff the vacant part-time Deputy City Attorney position at the full -time level by establishing a new full -time Deputy City Attorney classification in the Key and Management unit; and approve the request to continue the use of the temporary part -time contract attorney who was filling the gap of that vacancy in order to assist in the legal work of the City as an additional legal resource to the OCA. SUMMARY: The legal services for the City are provided by a combination of in -house professionals and retained special counsel. Special counsel services tend to cost two to five times as much on a per hour basis than in -house counsel. The City can save substantial sums of money if it has a vibrant, efficient, and effective OCA. At present, however, the OCA is not staffed in a manner sufficient to meet current demands for service. The OCA must increase its staffing in order to perform the services necessary to meet present demand and bring a large portion of the outside counsel work back in -house in order to realize the benefits of an effective in -house legal office. We will be requesting an increased budget for the office in the coming budget cycle. At present, however, there is a vacant part -time Deputy City Attorney position within the OCA. We request authority to recruit to fill that position at a full -time level and to continue to use the contract attorney who is filling -in in order to provide additional capacity to make headway on the current backlog of legal work. This arrangement is intended to enable the OCA to make progress on backlogged work and to begin to lay the foundation for Office of the City Attorney Staffing Augmentation March 24, 2009 Page 2 bringing some out - sourced legal services back in- house. This staffing change can be accomplished within current budget levels due to the vacancy of the part-time Deputy City Attorney position. DISCUSSION: Due largely to an increase in demand for legal services over time, the OCA has not kept pace with the needs of the City and the OCA is currently operating with insufficient resources in its in -house legal department. As a result, the OCA is not meeting all of the needs of the City for the provision of legal services and large outside counsel expenses are being incurred. At present, the OCA has a vacant part-time Deputy City Attorney position. The demands for that position are partially being covered at present by services from a temporary part-time contract attorney. This staffing level has proven to be insufficient to meet the current, day - today demands for advisory legal services. Thus we request authority to augment the staffing level within the department. 1. Demand for Legal Services. The goal of the OCA is to provide excellent, prompt, practical, solution oriented legal advice to the Council, staff, and Boards and Commissions of the City of Newport Beach. We seek to integrate the legal function with administrative and policy functions of the City at the most basic levels in order to assist in achieving the Council's objectives and protect the City from liability risks. To achieve these goals, we have begun attending necessary Board and Commission meetings, training Boards and Commissions, and working with staff and Council at the outset in formulating strategies to achieve the Council's initiatives. In addition, we supervise the services provided to the City on various issues by outside counsel. As a result, the demand for legal service has increased. Roughly speaking, we have received 251 requests for services from January 1, 2009 on. We have opened 234 new advisory matters. We have opened 15 new code enforcement matters and 2 more litigation matters, for a total of thirty -seven active litigation matters. In addition, we have provided legal support on such important projects as the Coastal Land Use Plan Amendment before the California Coastal Commission; provided legal advice to the Civil Service Commission in dealing with a requested investigation and the issue of applicant appeals; provided legal support for the ongoing priority effort for the new City Hall plan and construction; continued legal support on issues related to Banning Ranch, Hyatt Regency development plan, Marina Park and several other environmental impact reports for development projects. In addition, we have been building our capacity to better monitor and manage outside counsel relationships. We have twelve ongoing outside counsel relationships dealing with current issues. Of those relationships, there are four areas of legal work requiring very extensive dedication of resources: (1) dealing with the issues caused by the Office of the City Attorney Staffing Augmentation March 24, 2009 Page 3 residential influx into the Irvine Business Complex and the litigation spawned by those problems; (2) addressing the issues resulting from the proliferation of sober living facilities and group homes in concentrations within residential neighborhoods of the City; (3) addressing the issue of eelgrass mitigation programs and their impacts on lower bay dredging; and (4) ongoing code enforcement activities to meet established Council objectives and address quality of life issues. All of this new demand is in addition to the backlog of workload that predates January 1, 2009. That backlog includes such important projects as addressing John Wayne Airport and developing a strategy to address future issues; assisting in developing appropriate fees governing the letting of moorings and other harbor related fees; assisting in reducing the eelgrass mitigation measures currently imposed on the harbor in order to facilitate needed dredging in the lower bay; assisting in updating City fees; assisting in preparing comprehensive sign and banner regulations for the public right of way; and others. As a result, we are not meeting our objectives for providing service on legal issues. 2. Current Office Capacity. At present, the OCA is budgeted for 4.5 attorneys, comprised of three full -time attorneys and two part-time attorneys (30 hours each), one Paralegal, one Office Assistant and one Administrative Assistant. While the specific assignments of the legal personnel are listed on the attached assignment chart, their general roles are: • One City Attorney: Oversight of all legal services provided to the City, both in- house and outside counsel; management of the department; oversee combined budget for in -house services ($1,076,889.17 FY 2009) and outside counsel services ($695,450 FY 2009) for a total budget for legal services of $1,772,339.17; quality assurance; legal strategies and handling of sensitive matters. • Two Assistant City Attorneys: Direct Department representation and support and their related board and commissions; quality assurance for assignment departments; special projects as assigned; supervise the legal work for their respective departments performed by Deputy City Attorneys and Paralegal. • One and a Haff (Time -Wise) Deputy City Attorneys: Task oriented assignment to support City Attorney and Assistant City Attorneys; stewardship delegated projects as assigned. ' It should be noted that the OCA is currently seeking a budget amendment to cover anticipated outside counsel expenses that have exceeded budgeted amounts and are forecast to total $1,387,450 for FY 2009. Office of the City Attorney Staffing Augmentation March 24, 2009 Page 4 • One Paralegal. Document custodian and information management; factual investigation; liaison to outside counsel on investigation and discovery issues; first level document review for consistency; tasks as assigned. This staffing has proven insufficient over the last three months to provide the augmented legal services necessary to achieve the department's goals. All of the full - time attorneys have been averaging between 50 to over 60 hour work weeks or more, and the part-time attorneys likewise are putting in comparative effort. The Paralegal and support staff have likewise been working extra hours regularly to meet the need for service. No vacations have been granted, except one which was prescheduled, and only limited time off. The entire office has been making all effort to carry the current workload and attempting to address issues still pending from the past backlog of work. This effort cannot be sustained. The only ways to meet the need for service to the Council, staff, and boards and commission is to augment the staff of the office, or change the parameters of service. The office is also, as with all of city hall, limited in the amount of space available for work stations. At present, with a minor adjustment of interior walls, we are able to accommodate one more small office for the newly hired Assistant City Attorney. That will leave the Assistant City Attorney's current work station vacant for the proposed full - time Deputy City Attorney position. There will be no further space available for any staffing until the new city hall is built. This space limitation makes the current contract temporary part-time attorney position ideal for the OCA. At present, we have a contract relationship with a seventeen year attorney with over nine years of municipal law experience including four years in -house at the City of Orange. This attorney has an established home office and only needs to come into the OCA for meetings and to obtain work assignments. This arrangement has proven ideal for our office due to the limited space available. We seek to continue this arrangement until we are caught in our backlogged work and are staffed sufficiently to proceed with bringing appropriate litigation back in- house. 3. Current Outside Counsel Expense. As stated above, we have extensive outside counsel relationships that are necessary to meet the City's need for legal services. While outside counsel will always be needed, at present the outside counsel expense to the . City could be pared down through the effective use of in -house counsel. Outside counsel are needed for providing legal services that cannot otherwise be provided by the City in an in -house department. Ideally, outside counsel are used in three circumstances: (1) for the provision of specialty legal services that cannot effectively be provided by an in -house legal office due to their unique nature, bond counsel work for example; (2) for projects or litigation that are transitory and of such a Office of the City Attorney Staffing Augmentation March 24, 2009 Page 5 magnitude an in -house office cannot effectively staff for them on an ongoing basis; and (3) tort claims litigation, which by the nature of the insured /insurer relationship makes it inconvenient to perform the services in- house.2 The City has, however, been compelled to use outside counsel services in areas that can be covered by in -house legal services. Outside counsel has in the past, and has currently, been providing advisory services with respect to election, revenue and rate, and ordinance issues that can be provided in- house. In addition, code enforcement and discreet specialty litigation can be brought back in -house to reduce overall expense when in -house resources allow. At present, however, outside counsel are absolutely critical for providing these services due to the lack of resources in the OCA. 4. Plan, Anticipated Expense, and Funding Availability. We plan on addressing the issue of providing legal services incrementally. First, we need to increase the capacity for providing legal services from our in -house department, catch _up on backlogged work, and then begin to bring some of the services provided by outside counsel back in- house. Second, as space allows with the occupancy of the new city hall, we would recommend adding any further capacity that might be required to achieve the goal of providing excellent legal services while reducing the expense through an effective, efficient, and vibrant in -house legal department. At present, we recommend pursuing this plan by upgrading the vacant part-time Deputy City Attorney position to full -time. We would seek a one to three year attorney with relevant substantive law experience and with litigation experience. This attorney would then provide task and project oriented legal support to the Assistant City Attorneys and the City Attorney as needed, as well as assisting in expanding our ability to provide litigation services from our in -house department. Thus, once we are providing effective and timely legal services in the day -to -day operations of the City and have caught up on our backlogged projects, we can begin providing the City specialty litigation services as the need arises and, as appropriate, begin bringing code enforcement tasks back in- house. The savings from this approach can be considerable. At present, for half -way through our fiscal year, the City has incurred $107,000 in approved code enforcement legal expense. In addition, it has incurred well over $100,0003 in specialty litigation expense that could have been performed in -house if the capacity had been available. 2 This last circumstance will often depend on the terms of insurance policies purchased by the City. It is, however, generally true that excess carriers will often not recognize the cost of in -house counsel to deplete self- insured retentions. In such a case, it is impractical to perform those legal services in- house. 3 The exact figure is not easily extracted from our current account structure, though it could be done with time analyzing the speck billings. We will be proposing new line items for budgeting and tracking outside expenses in the FY 2010 budget that will make it easier to identify the reason for the outside legal Office of the City Attorney Staffing Augmentation March 24, 2009 Page 6 The anticipated cost to implement the proposed staffing changes is within our current budget allocation. It is covered from cost savings due to the vacant position. Please see Exhibit "B" that addresses the specific numbers for the proposal. The ongoing cost to make the proposed staffing changes is estimated to be $99,235.46 annually, using FY 2009 -10 staffing costs and will be addressed in the FY09 -10 budget. The OCA has proposed an annual budget that includes these two positions, and includes the upgrading of the second part-time Deputy City Attorney position to full -time. We have forecast that we will be able to reduce overall legal expenses by two percent from the overall forecasted expense for FY 2009 through this action. If approved, the OCA will proceed with conducting an outside recruitment for the full - time Deputy City Attorney position in an attempt to fill the position as quickly as possible. We have forecast that the recruitment will take at -least two months. Thus the expense of the position will not be incurred until approximately April 1, 2009. CONCLUSION: The increase in staffing hours for the full -time Deputy City Attorney from part-time and the continued assistance of the temporary, part-time contract attorney are necessary for the OCA to provide an effective level of legal services to the City. It is recommended the Council approve the request to staff the full -time position and establish the full -time Deputy City Attorney position in the Key and Management unit and to allow for the continued employment of a temporary part-time contract attorney to assist in catching up the backlogged legal services. Prepared and Submitted by: I \ V A David R. Hunt City Attorney Exhibit "A" - Office of the City Attorney: Assignments /Structure (March 16,2009; Revised) expense from budget line items and we are implementing the new CityLaw program to allow us to track exact costs to each matter. We would suggest, for example, that the Beek litigation, both the election case and the CEQA case, could most efficiently be handled in- house. Not that our outside counsel have not done an excellent job. They have. These are simply the type of discreet, specialty litigation matters that a well staffed in -house OCA can handle most efficiently for the City. Office of the City Attomey Staffing Augmentation March 24, 2009 Page 7 Office of the City Attorney: Assignments /Structure (March 16, 2009; Revised) City Attorney David R. Hunt (Assistant to the City Attorney, Debbie Alcaraz) Mayor and Council City Manager (Including Harbor Resources) City Clerk Outside Counsel: Specialty Litigation/Tort Claims Litigation Assistant City Attorney Assistant City Attorney Aaron C. HgM MMette D. Beauchamp (Office Assistant, Cristal McDonald) (Off ce Assistant, Cristal McDonald) Administrative Services Public Works Department Building Department Utilities Department Planning Department General Services Department Library Services Recreation and Senior Services Department Fire Department Human Resources Department Police Department Code Enforcement (including Outside Counsel for Code Enforcement) Deputy City Attorney Deputy City Attorney _Cathy Wolcott (Permanent Part -Time] Mary Binning (Temporary Part -Time) (Office Assistant, Cristal McDonald) (Office Assistant, Cristal McDonald) Group Homes Projects and Assignments as Directed Sign/Banner Ordinance Projects and Assignments as Directed Paralegal Kristy Parker Contract Review Public Records Act Requests Liability Claims Code Enforcement (Dog Bites) Liaison to Outside Counsel Bench Marking Projects and Assignments as Directed Exhibit "A" F: useWcat/ shamdlCCstaffRepWs /OCAcherwStatfFTdca. doc