A year after the City of San Bernardino entrusted the bulk of its legal representation to Best Best & Krieger, the city council this week initiated what appears to be the first step toward jettisoning the law firm as its city attorney.
For 113 years, beginning with San Bernardino’s organization along the lines of its charter adopted in 1905, the city had a city attorney elected by the city’s voters, who functioned in conjunction with an elected mayor, an elected city council and an elected city clerk together with the city’s hired staff. In 2016, after 111 years of governing, administering and running the city using the 1905 Charter as its model, a charter redraft was presented to the voters which left the mayor’s political power intact but detracted from the post’s administrative capability, changed the city’s election cyle from one based on odd-numbered years to even numbered ones and dispensed with the elected city attorney and city clerk positions in favor of making those posts appointed ones.
Because City Attorney Gary Saenz had been reelected in 2015 to a four-year term running from April 1, 2016 until March 31, 2020 under the provisions of the 1905 Charter, he was entitled to remain in that elected post until  April 1, 2020. The city attorney’s office, well prior to Saenz’ election to the city attorney’s position as the result of a recall effort against the previous city attorney in 2013, had grown to involve a significant degree of support staff, including four attorneys, investigators, paralegals, and clerical personnel. Saenz had dispensed with the investigators shortly after his election, but had continued to manage the office located on the top floor of City Hall with the assistance of his staff attorneys and the remainder of those employed in the office.
Two years after the new charter’s passage, in compliance with the gradual adaptation to the new terms of the charter that were to be implemented until they were fully in place as of April 1, 2020, Saenz began to shed his support staff, with all of the office’s attorneys leaving along with all but two of his clerical staff. At the same time, the city began to look toward hiring a firm to serve in the role of city attorney.
After considering a host of applicants for the assignment, an ad hoc committee winnowed the competitors, not surprisingly, to the four largest municipal representation firms in Southern California: Best Best & Krieger, Burke Williams Sorensen, Jones & Mayer, and Richards Watson & Gershon. After interviews with attorneys from each of the four with the exception of Burke Williams Sorensen, the committee gravitated toward selecting Best Best & Krieger. Under the contractual arrangement between the city and Best Best & Krieger, Thomas A. Rice, an attorney with the firm who speaks in a clipped British accent, was designated as the assistant city attorney. Rice, as the city’s legal showhorse, is rarely present at city offices or functions and is trotted out only when city officials are seeking to put an urbane foot forward to make a superficial impression on those it is dealing with. Sonia Carvalho, another of the firm’s lawyers, was designated as the assistant city attorney. Carvalho is the workhorse who reports to the mayor and city council. She is serving during the remainder of Saenz’s term as city attorney as his chief assistant, and she is in attendance at city council meetings.
Best Best & Krieger appeared to be a good fit for those running the show in San Bernardino. While Burke Williams Sorensen, Jones & Mayer and Richards Watson Gershon have raised to the level of art being able to read the political relationships among elected city leaders to detect who on any particular governmental panel constitutes the ruling coalition, how firm those alliances are, and what the prevailing attitudes are with regard to the issues before that particular city so to tailor the legal advice they provide to please their client and keep their contracts, Best Best & Krieger has refined the same talent and technique to the level of science.
Indeed, throughout most of the first year that Best Best & Krieger has been serving in the role of San Bernardino’s office of city attorney, it has carried out numerous assignments of instructing those in charge – essentially the ruling majority led by Mayor John Valdivia – how to thread the needle to accomplish its goals. Among those was the firing of City Manager Andrea Travis-Miller, with whom Valdivia had differences. Best Best & Krieger also helped Valdivia and his team engineer a show of power by which Saenz’ rate of pay, based on a total annual compensation package including salary, benefits and add-ons of $246,266 was reduced 45.8 percent over his final nine months in office from $184,700 to $100,000. Best Best & Krieger likewise assisted Valdivia and company in reducing City Clerk Georgeann Hanna’a final nine months of pay from $128,600, based on her total annual compensation of $171,466, to $52,500. Best Best & Krieger, in particular Carvalho, assisted Valdivia and his former assistant chief of staff, Bilal Essayli, in discontinuing the city’s relationship with the law firm of Straddling Yocca, Carlson and Rauth, which had billed the city and received over $25 million for legal services between 2012 and 2018 in conjunction with guiding the city’s action with regard to its 2012 Chapter 9 bankruptcy filing. In return, Valdivia has arranged for the city to vector even more legal work to Best Best & Krieger. It thus seemed that there was an entirely copacetic, indeed symbiotic, relationship between Best Best & Krieger and Valdivia’s political team.
This week, however, on Wednesday night at the city council’s August 7 meeting, a coordinated effort involving Valdivia and one of his council allies, Second Ward Councilman Ted Sanchez, put the city’s continuing relationship with Best Best & Krieger into both sharp relief and future question.
Sanchez timed his move, bringing the matter up just as Valdivia was adjourning the meeting. Valdivia recognized the Sanchez’s request to address the council.
“I’d like to move to direct the city manager to place an item on the next agenda to send out a request for proposal to handle the city’s prosecutions, advise code enforcement, represent the city before the hearing officer and handle the city’s abatement actions,” Sanchez said. “In conversation with my colleagues, it has become clear that we have become frustrated with the slow response and the weak prosecution of those repeat offenders of our [codes]. If I am wrong, I’d love to hear one of my colleagues speak up about that, because they have all been adamant, at least with me, that this has been a major issue, and we need to tackle this.”
Sanchez continued, “My second council meeting, we terminated the contract with Jones and Mayer. We put in place as a stopgap B B & K [Best Best & Krieger] as our prosecutor. I want an RFP [request for proposals] to go out to have law firms submit proposals to the city to do code enforcement prosecutions.”
In actuality, at the January 2, 2019 council meeting, which Sanchez referred to as his second meeting after his December 19 swearing in, the council had authorized then-City Manager Andrea Travis Miller to execute the first amendment to an existing legal services agreement between Jones & Mayer and the city to provide legal services for code enforcement and prosecution services. Sanchez’s reference to the termination of the contract with Jones & Mayer more accurately relates to an action that took place subsequently, when dissatisfaction with the performance of Jones & Mayer manifested. On June 19 the council adopted a resolution consigning the city to contracting with Best Best & Krieger to provide code enforcement legal services. The agreement with Jones & Mayer expired on June 30.
City Manager Teri Ledoux responded, “If I may, it wasn’t a stopgap,” she said. “We actually approved a contract with B B & K to provide those services now. So that just started July 1.”
Sanchez noted that Best Best & Krieger had more than a month to perform and had not done so satisfactorily.
“I believe this council wants an aggressive approach to code enforcement violations and I want an RFP to go out for those prosecutions,” he persisted. “I want a law firm that’s going to go after [egregious code violations].”
Carvalho attempted to mount a defense of her firm’s performance, saying there were “six or seven other law firms under contract to the city” involved in handling the city’s legal issues, which had led to a diffused approach to the code enforcement issue. She sought to assure Sanchez that her firm was “going through the process at the direction of the council to try and consolidate as much as we can so we have one cook in the kitchen, and where necessary we bring in special council. We still have special counsel, so we can coordinate services better.”
Continuing, Carvalho said, “The code enforcement operation was getting direction from like three different sources. They were getting code enforcement direction from Jones & Mayer. They’re getting some sort of code enforcement direction from Cole Huber because there were still some attorneys from that firm that were advising the city on cannabis enforcement issues and then they stated to get some code enforcement or administrative enforcement advice from Best Best & Krieger. That information was brought to the city council two weeks ago. You had an option. You could have renewed the contract with Jones and Mayer, you could have [given] the work to someone else. You could have RFPed it. The recommendation at that time was to contract the digital services with Best Best & Krieger to see if that might get this stuff moving, the code enforcement service, the prosecution of code enforcement services. So that agenda item was brought to you, I believe it was two meetings ago, the 17th of July. The contract’s about one month old, so we’re trying to make up some time and show you some progress.”
“Well, in all honesty, until I see that action from the city council, I cannot recall that action being taken,” said Sanchez. “All I can remember is we had terminated the contract with Jones and Mayer. That was the second council meeting that I attended, the first council meeting in January. It was presented to us as a stopgap. So BB&K would do prosecutions as a stopgap so that there wouldn’t be a lapse in prosecutions of code enforcement violations.”
Carvalho insisted that “Best Best & Krieger did not provide any prosecution services at all until July 1.”
Pressing the issue, Sanchez said, “My motion was to have staff come back with a draft RFP proposal that could be sent out.”
Valdivia remarked that Sanchez was “gaining some votes in support” of his position, but suggested he allow staff to come back with a report on code enforcement.
Sanchez was adamant. “No, my motion stands” he said. “I do want a draft RFP to come back to this city council at the next council meeting, because what will happen is we will get a report and it will be a receive and file, and that will be it. I want the city to take a proactive approach.” He then accused Best Best & Krieger of indolence and not living up to the standards it had espoused in convincing the city to expand its contract with the firm for legal services, including those relating to code enforcement.
“I heard from counsel [Best Best & Krieger in the person of Carvalho] argument after argument about how prosecutions are not aggressive enough, and now, we’re standing back,” Sanchez said. “I want this RFP to go out.”
“Councilman, councilman,” Valdivia said. “I appreciate your passion. I thank you for your eagerness to get at and resolve issues. We need to work with staff here.”
Councilman Henry Nickel said, “I do have concern about our overall code enforcement regime in terms of how we are conducting enforcement, how we are paying for code enforcement, how we are enforcing code enforcement. I want to get a sense of what the plan is. What I’m hearing from a lot of constituents is a frustration that items are getting reported [and not being acted upon]. I am also concerned that we are using general fund dollars to subsidize code enforcement. I’d like to explore the use of an enterprise fund, a mechanism that we can recycle those funds that come from our code enforcement operations back into expanded code enforcement.”
Nickel continued, “I think what I’d like to do is initiate a conversation as to what that would look like if staff can provide some sense of where we are currently with our code enforcement operations and whether or not we can anticipate some kind of discussion in terms of some other types of models we can look at really to step up and increase code enforcement citywide, if possible. So, I do support in concept exploring what options are available in terms of code enforcement and assessing how we can improve the program.”
Sanchez was not dissuaded form moving toward finding a more aggressive firm to handle enforcement at the court and procedural levels.
“My motion stands,” he said.
The council then voted on whether to send out a request for proposals to find a new enforcement attorney.
The motion failed, 3-to-4 with Sanchez, Councilwoman Sandra Ibarra and Councilman Juan Figueroa casting the yes votes.
-Mark Gutglueck