Shining light on SLT’s contract with law firm
By Kathryn Reed
It is normal for government bodies to have an attorney with their best interests in mind review all contracts.
That doesn’t appear to have happened last fall when the South Lake Tahoe City Council entered into an agreement for Burke, Williams & Sorensen to provide city attorney services on an interim basis.
Mayor Wendy David told Lake Tahoe News, “I’m not aware of an outside attorney reviewing the contract.”
So, this means there was no independent review of the contract.
It was signed by outgoing City Attorney Tom Watson, who was leaving because he was tired of the city. No one thought to question if he would have the city’s best interests at heart at that juncture and whether it was appropriate for him to handle the contract for his successor.
The contract was also signed by then Mayor Austin Sass and Eric Vail of the law firm.
That contract states, “Burke will not employ or otherwise incur an obligation to pay other counsel, specialists or experts for services in connection with this agreement without prior written approval of the city attorney.”
In other words, the law firm has carte blanche to hire whomever it wants for presumably whatever reason and the city has no say because the firm is the city attorney.
That open ended allowance is how Nira Doherty, who is the law firm’s designee to be South Lake Tahoe’s interim city attorney, was able to approve the contract with Municipal Resource Group. Mary Egan, who heads MRG, is the one who came in last fall at the urging of Sass to assess the culture of the city.
Even so, with the council taking action in closed session to approve the agreement it needed to be reported in open session. It never has been. All that the city has provided to Lake Tahoe News is the agreement MRG sent to the city, not the actual contract.
While city officials have told LTN at some point the contract is going to come back to correct that Brown Act violation, this could be a violation of the California Constitution in regards to approving a contract retroactively.
Doherty allowed the council to violate the Brown Act by not insisting the MRG contract be reported in open session. Brown Act violations are misdemeanors; every council member could be charged.
The MRG agreement called for Sass to arrange meeting space at the Marriott for Egan to conduct her interviews with council and department heads.
Lake Tahoe News has asked for detailed bills regarding the law firm, but to date has only received totals. The contract with the firm says, “As a condition precedent to any payment to Burke under this agreement, Burke shall submit monthly to the city separate statements of account which clearly sets forth by dates the designated items of work for which the billings are submitted.” So, clearly, those details exist.
There is also a question as to what role Doherty really has. In October, she filled out the state Form 700 disclosing economic interests. Under office/agency/court she listed city of South Lake Tahoe, with her position being city attorney.
This makes it appear she is an officer of the city.
The contract with the law firm further states, “No member of the governing body of the city, and no other officer, employee or agent of the city who exercises any functions or responsibilities in connection with the carrying out of any project, to which this agreement pertains, shall have any personal interest, direct or indirect, in this agreement.”
That would mean Doherty would have a conflict with said agreement because she does have a personal and direct interest.
California Government Code 1090 says, “Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by anybody or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.”
If she is an officer of the city as written on Form 700, it appears she violated the Government Code by devising a contract with the city in which she benefits. This is a felony.
Doherty is on vacation. At this week’s council meeting she said she would be unavailable for comment during this time.
Doherty has asked for her law firm’s contract to be on the March 20 council agenda.
Thanks for lifting the veil on this stinky situation! Tom Watson should be ashamed to have arranged that deal, and then Mayor Sass should be reprimanded for thinking he had the authority to sign such a contract! The whole thing involving MRG, Sass and Doherty stinks, and needs to be investigated and reconciled!
We need our own City Attorney, and we need a City Council and Mayor who has the integrity to make things right! The Law Firm’s contract (on the March 20 agenda), should be cancelled. Our new City Attorney might look into filing charges…. And, It might be a good time for Sass to look for another career again!
Thank you for covering this. It makes one wonder how the secret activities regarding our former City Manager, Nancy Kerry, are related to all of this. Given alleged illegal Brown Act violation(s) and alleged illegal contract signing by a law firm with it’s own self interest involved, it would appear the City is in the hot seat in more than a few areas. We can all only hope that the members of the City Council come clean on how all this came to pass, they are all collectively responsible for this fiasco. Signing a contract that awards the contractor full rights to define how their own services are provided is beyond comprehension.
Apparently, in Austin Sass’ glee and haste to figuratively sodomize City Manager Nancy Kerry, Sass didn’t have time to read the contract that he signed with attorney Nira Doherty. Ditto for Nira Doherty. What a fine acting City Attorney the City of South Lake Tahoe has hired!! Nira Doherty doesn’t read the documents that she recommends the City sign.
The Case Against the City Attorney
Issues to consider:
Did the City Attorney fail to follow the Brown Act in relation to Council consideration and decision to grant the MRG firm a $10,000 contract for an “organizational assessment”?
Did the City Manager call out the City Attorney on a perceived Brown Act violation relating to the MRG contract?
Did the City Attorney allow for circumvention of regular procurement processes in selection of the MRG firm?
Did the City Attorney allow City Council discussion of City Manager performance and contract issues in a closed session that was not noticed for such discussion?
Did the City Attorney engage in competent contract management in relation to the work product required by MRG, a written report for an organizational assessment, and in relation to final contract costs to the City?
Was it appropriate for the City Attorney to manage a contract for an “organizational assessment” at all or given that it may have been approved in violation of Brown Act?
Did the City Attorney know the “organizational assessment” was in fact intended for City Manager performance & evaluation?
Did the City Attorney otherwise allow an “organizational assessment” consultant to participate in a closed session noticed for City Manager performance & evaluation?
What other consultants have met in closed sessions without notice?
Did the City Attorney advise the City Council of the City Manager employment contract evaluation clause requiring a written summary report to be furnished to the City Manager with time for review and response, or was the City Manager employment contract breached?
Did the City Attorney advise the City Council on City codes related to City Manager termination?
Did the City Attorney release the MRG contract as a public document thereby acknowledging it as City Council decision, made without notice?
Is the City Attorney bringing the MRG contract back to City Council for review after the contract has been completed as a matter of after the fact remedy for any possible Brown Act violation?
If the City Attorney knew the City Manager perceived of a potential Brown Act or other violations tied to the City Attorney’s own actions, was it appropriate for the City Attorney to advise the City Council on matters related to the termination of the City Manager or did some conflict of interest exist?
If Brown Act violations, the MRG contract etc, were all initiated in a closed session to consider award of the City Attorney contract, is there at least an appearance of quid pro quo?
A good City Attorney will treat the Brown Act as sacred. They will say simple phrases like: “We can’t discuss that issue in here because we are not noticed for that”; or ” This item needs to be on an open agenda before we can proceed or discuss it in any manner.” They serve to enforce the Act.
Other questions: Were the City Attorney’s supervisor’s at Burke, WIlliams Sorensen not supervising? Are they still involved in representing the City in matters where their own firm may have exposed the City to litigation from the City Manager? How much was Mayor Sass involved in getting the whole ball rolling? Was it he that pushed City Attorney to move on MRG contract in the first place?
Irony? While the City Council went fishing for ‘for cause’ issues on the City Manager, were ‘for cause’ issues for the City Attorney served up to them in a clear manner? If they choose to ignore ‘for cause’ issues for one but zealously seek them for another, would the distinction be that one of them sought Brown Act observance while another avoided it? Was one punished and one rewarded?