After 108 Years, San Bernardino Outsources Its Attorney’s Office

This week brought further indication of the degree to which the City of San Bernardino has receded from its position as the premier civic entity of the region. The county seat of San Bernardino County and the oldest and most mature of the county’s 24 municipalities saw its grandeur erode yet further as the city council voted unanimously to outsource the city attorney’s office.
The privatizing of the city’s legal function, which as of Wednesday night’s vote has already been partially effectuated and will become complete with the expiration of City Attorney Gary Saenz’ current term in March 2020, goes beyond the reforms that were put into place with the citywide voter passage of 2016’s Measure L, which was the first comprehensive redraft of the city’s charter that had been in place since 1905.
The idea of outsourcing Saenz’ function and office came from City Manager Andrea Travis-Miller and the city’s finance department.
At a special meeting of the city council held on May 14, 2018 during which an examination of the various city departments’ budget requests were made together with city management’s suggestions on how city spending for Fiscal Year 2018-19 should be structured, Travis-Miller presented a suggestion that the city attorney’s services should be outsourced. Saenz did not know about the proposal until he received the agenda packet for the meeting.
Without taking a vote on the proposal at that time, the council agreed via consensus to give Travis-Miller direction to come back with a proposal on contracting for city attorney services. At another special meeting on May 29, 2018, the mayor and city council expressed further interest in what was represented as “exploring opportunities to reduce costs and enhance the efficiency and effectiveness of the city attorney function” in conjunction with the transition of the city attorney’s position from the elected post it had been for over a century under the 1905 charter to the appointed position designated with the city charter change approved pursuant to Measure L, which was approved by the voters two years ago by a margin of 27,478 votes or 57-plus percent  to 17,890 votes or 42-plus percent. That measure changed both the city attorney’s post and city clerk’s position from elected to appointed ones.
Without a vote taken or much public discussion, city officials in the back rooms of City Hall over the last two months gravitated toward the outsourcing.
The city council acceded to Travis-Miller issuing a solicitation of bids, referred to as a request for proposals, for the provision of general municipal legal services. Bids were solicited from twelve of what city officials deemed to be “qualified” law firms employing attorneys possessing governmental, regulatory and municipal legal knowledge and experience capable of providing the city with professional services. The solicitation was also published on the city’s website. Ten firms submitted proposals by the June 15, 2018 deadline.
At the June 20, 2018 meeting, the mayor and city council received a report on the status of the solicitation and proposals received, and directed Travis-Miller to prepare a review and evaluation of the proposals to be presented to an ad hoc committee that was to review, compare and analyze the proposals and information presented, interview prospective firms and make recommendations to the mayor and entire city council.
On July 10, the ad hoc committee winnowed the competitors to four firms, those of Best Best & Krieger, Burke Williams Sorensen LLC, Jones & Mayer, and Richards Watson Gershon, extending them an invitation for an interview on July 19. Due to scheduling issues, Burke Williams Sorensen LLC was not available until August 6, 2018. Because of the need to begin the process, the committee proceeded with the interviews. Ultimately, and without interviewing any representatives from Burke Williams Sorensen, the committee gravitated toward selecting Best Best & Krieger.
According to a staff report from Travis-Miller dated August 1 but prepared several days prior to that, “The service model proposed by Best Best & Krieger provides that one attorney, Sonia R. Carvalho, would report to the mayor and city council and be designated as the chief assistant city attorney. Thomas A. Rice would be designated as the assistant city attorney. Ms. Carvalho, Mr. Rice, and other attorneys from the firm assigned to particular matters would collaborate on a day-to-day basis with the city manager and executive staff, ensure legal issues are addressed in a thorough and timely manner, and manage the workload of the attorneys in the firm responsible for serving the city. The number of attorneys assigned at a given time would depend on the current workload. Additionally, Ms. Carvalho would collaborate with the elected city attorney through the end of his term in office, or March 2020.”
Best Best & Krieger has a reputation for interpreting the will of a majority of the city councils in the cities that firm represents as being consistent with the best interests of the citizens who elected those officials. Thus, its attorneys strive to find a legal justification to allow the cities the firm represents to proceed with the policy decisions those council majorities advocate, irrespective of the sentiment of the residents/citizens in those cities.
Best Best and Krieger has agreed to hourly rates ranging from $150-to-$275 per hour for basic legal services and from $155-to-$310 per hour for special legal services. The agreement provides for an annual review of the performance and compensation of Best Best & Krieger. On August 15, the mayor and city council are to be provided with an analysis of projected expenditures (including special legal services), savings from positions to be deleted and a plan for transition of staff. According to Travis-Miller, “Best Best & Krieger has committed to remain flexible with billing arrangements in order to meet the city’s goal of reducing the legal services budget, which was $3,272,903 for the just concluded 2017-18 fiscal year.
Previously, Saenz had seven attorneys on his staff in addition to himself. Earlier this year, the seven staff attorneys were reduced to five. As of Wednesday night, four of those attorneys had departed, leaving Saenz and one attorney working directly with the city in addition to the Best Best and Krieger personnel.
San Bernardino filed for Chapter 9 Bankruptcy Protection in 2012, emerging from that status last year under a plan approved by U.S. Bankruptcy Judge Meredith Jury that allowed the city to stiff a significant number of its creditors and vendors while ensuring that pensions to its retired employees would be paid as promised.
In 2015, the city outsourced its sanitation department and its fire department, effective the following year. The San Bernardino Municipal Fire Department had been in existence since 1867.
Mark Gutglueck

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