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Home My WebLink AboutS3-City Attorney 1 CITY OF SAN BERNttDINO - REQUEST FIR COUNCIL ACTION 'From: Jl\MES F. PENMAN Subject: PERMISSION TO RECRUIT FOR AND FILL DEPUTY CITY ATTORNEY POSITION Dept: City Attorney Date: February 17, 1992 Synopsis of Previous Council action: Recommended motion: 1) That the City Attorney be permitted to advertise and fill a vacant Deputy City Attorney position. 2) That the City Attorney grant a two-month leave of absence without pay, as requested. (i 'f,A~~ {J 'I -:l ;/ . /" ~'- Signature Contact person: JAMES F. PENMAN Phone: (714) 384-5255 1-7 Supporting dati Ittached: Ward: FUNDING REQUIREMENTS: Amount: Source: (ACCT. NO.) (ACCT. DESCRIPTION) Finance: Council Notes: 1!l.oa2 Agenda Item No. ,:) -3 CITY OF SAN BERNrDINO - REQUEST FiR COUNCIL ACTION STAFF REPORT When John Wilson resigned as Senior Deputy Ci ty Attorney in October of 1990 to accept the position of City Attorney of Banning, we were asked not to fill his position as a means of boosting the morale of the various department heads throughout the City. We also laid off a secretary and left that position vacant. This action has been extremely costly to the taxpayers of San Bernardino. A number of the lawsuits assigned to Mr. Wilson had to be "farmed out" to outside counsel. The cost of employing private firms to represent the City on cases assigned to Mr Wilson has exceeded the combined salaries (with benefits) of both Mr. Wilson's position and the legal secretary position left vacant. Additionally, we had to employ an outside firm to give legal advice to certain City boards and committees previouSly advised by Mr. Wilson. Finally, we took the remainder of Mr Wilson's assignments and redistributed those to other attorneys in the office who were already carrying loads requiring investments of time far in excess of their work week. We resolved this problem temporarily by requiring the attorneys to work overtime without additional compensation. All agreed to do so. The dam, at last, has given way. One of our best attorneys has requested a two month leave of absence from April 6, 1992 to June 17, 1992. Depending on developments in that individual's personal situation, the attorney might or might not return at the end of the leave of absence. Due partially to the uncertainty of the future plans of the attorney in question, but primarily done to the inability of the remainder of the lawyers to absorb the departing attorney's assignments (approximately eighteen litigation cases, 16 pending filings on nuisance abatement cases, seventy-four (74) bankruptcy cases, [on one recent bankruptcy case, the attorney secured $10,000.00 for the City. On another, $2,923.95, far less than the cost of the attorney at $30.66 per hr., including benefits] 96 active criminal files, 46 pending [cited but not yet filed] criminal cases, 345 active bench warrant cases, four (4) City department assignments and one ( 1) committee assignment) I am constrained to approve the leave of absence. Consequently, I believe we have the following options: Option 1: Deny the leave of absence, farm out eighteen civil lawsuits and approximately 40 of the bankruptcies, withdraw from the remaining 34 bankruptcies, dismiss 441 active criminal cases, do not file 46 pending criminal cases, and discontinue legal services to Public 1 75-0264 . . Works/Engineering, Code Enforcement, Building and Safety, Data process~ng, the Board of Building Commissioners and eliminate backup for Planning and Facilities Management. Positive results: Some Department Heads will feel good, fewer complaints of favoritism to other City officials by some Department Heads (al though other Department Heads will still complain that the City Attorney's office gets whatever it asks for, staff morale of these Department Heads will suffer, they will complain to elected and appointed Ci ty Officials). Negative results: 1) Cost of farming out litigation cases estimated at 920 hours x average of $100. per hr. = $92,000. in additional outside attorney fees over the next 12 months. 2) Cost of farming out some bankruptcy cases (and withdrawal from others) estimated at approximately 100 hrs. x average of $100. per hr. = $10,000. over the next 12 months. 3) The dismissal of 441 active criminal cases and 46 pending criminal cases (plus future new cases averaging 10 to 15 each week) will violate the mandatory prosecutorial requirements of the City Charter, will undermine the efforts of Police Officers who use loi tering, drinking in public, etc. statutes as the only legal way to deal with suspicious subjects loitering around schools, parks, business areas, residential neighborhoods, etc., undermine code enforcement, Building and Safety, Animal Control, and Business License Enforcement activities. 4) Leave four (4) City departments and one (1) Commission without legal direction. This will probably result in a number of successful lawsuits against the City in the areas of Code Enforcement, Building and Safety and Board of Building Commissioners' decisions. These three areas are the subject of much litigation, 2 . . mostly unsuccessful due to analysis on a case-by-case basis and application of the correct legal procedures as advised. In the Public Works/Engineering Department, where we battle on an almost daily basis to convince certain staff members that we must follow the law, the actions contrary to law will be so great without legal direction ( based on past and current experience) that it is impossible to predict the amount of damages in the first year alone. Option 2: Deny the leave of absence, begin recruitment of aqualified Deputy City Attorney. Positive results: The negative results of option 1 will be avoided. Negative results: Some Department Heads will complain that the City Attorney's Office gets whatever it asks for, staff morale of some Department Heads will suffer, elected and appointed City Officials will receive more complaints from these individuals. Option 3: Grant the leave of absence, fill John Wilson's vacant attorney position. Posi ti ve resul ts: The negative resul ts of Option #1 will be avoided. Fewer cases will have to be farmed out in the coming 12 months, resulting in a savings in excess of the cost of the position; decreased cost of use of outside law firm to handle in-house hearings, return of ability to aggressively fight many cases that we are presently, at best, only "keeping up" with. Negative results: Some Department Heads will complain that the City Attorney's office gets whatever it asks for, staff morale of some Department Heads will suffer, elected and appointed City officials will receive more complaints from these individuals. If Option #1 is selected no other immediate action is necessary. A list of cases to be farmed out will be presented at the next Council meeting. If Option #2 is selected, motion number one (1) on the request for Council Action is appropriate. 3 . . If Option #3 is selected, motion numbers one (1) and two (2) are appropriate. The annual cost of the salary and benefits (at $38.66 per hour) for the attorney requesting the leave of absence is: $80,413.59 (amount supplied by Finance Department). The estimated cost for the first 12 months of the cases to be farmed out is approximately $102,000.00. This amount does not include the cost of increased litigation due to lack of legal advice to certain City Departments nor the cost, in dollars or crime, of dismissing 441 active criminal cases. It will, therefore, cost (subtracting the attorney salary from the cost of farming out the cases) approximately $21,586.41 more in the first twelve months to fill the position than it will cost to leave it vacant. Respectfully submitted, ) ~ ~ 4