City Attorney: Councilman Bukowski's Letter To Emeryville Residents

Letter To The People Of Emeryville From Councilman Ken Bukowski

Council member Ken Bukowski is soliciting the following letter to the people of Emeryville, explaining his view of the November ballot initiative that would replace the existing city attorney with subcontracted attorneys on an "as needed" basis as most towns our size do.  Mr Bukowski notes that in addition to cost saving, our town would be better served legally by the new proposal. Councilman Bukowski is actively seeking out residents around town and he is disseminating this letter before asking them to sign a petition to place the issue on the ballot. There is a summation at the bottom of this letter outlining the eight reasons for the petition drive.   

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November, 2011 Election
paid for by committee for city attorney measure    
by  Ken Bukowski

Emeryville  City  Attorney

Contract  Initiative  Measure

On April 26, 2011, a Notice of Intent to Circulate a petition to qualify a ballot measure known as the Emeryville City Attorney Contract Initiative Measure was filed with the City Clerk.

Your signature on this Ballot Petition will allow Emeryville Voters the opportunity to decide how the services of the City Attorney's office are provided in the upcoming November 2011 Election   Many years of unsuccessful attempts to reform the City Attorney's office has created the need to take the issue to the voters.

Many smaller cities have discovered the advantage of using sophisticated municipal law firms to handle legal matters Such law firms have more than 100 attorneys on Staff, with an expert in every field of municipal law. The collective resources of numerous cites make it possible to achieve lower legal costs, and at the same time, provide the best possible legal services available.

The Emeryville City Attorney hires outside legal counsel for every case. He does not do any legal work.
There are no specific tasks assigned to him, individually.  He assumes the role as the city's "Legal Agent."

Once an outside attorney is chosen for a case, our Legal Agent, obtains legal advice and develops a determined  strategy to handle the matter. Once the strategy is developed, he takes it to the City Council for "rubber stamp" approval. The Council does not participate in the discussion to develop the strategy. We don't even  see who is handling the cases.

The City Council should have direct dialogue with the attorneys who represent us.  We deserve the opportunity to influence the strategy of how legal cases are handled. Our Legal Agent does it all for us. He hires the attorneys, provides the instructions, and he pays the bills. The only role of the Council is to authorize his determined strategy to go forward.

A Legal Agent Denies Council Members Direct Access to the Attorney(s) We Hire  
For newer members of the council the lack of objective legal advice, and no prior history, makes it impossible to challenge determined strategy. As the City Attorney for many years, he knows what's best for the City Council, and he is determined to make that happen. Other alternatives to handle legal issues are not considered or explored.

Our Legal Agent also hires an Assistant City Attorney who handles the daily legal needs of the City Staff. The Assistant City Attorney, also handles almost all the Staff assignments. The City Attorney is Paid $263,236 annually.


He is the Single  Largest Unnecessary  Expense  in  the  City
He receives $8,044 annually in sick leave, which can be cashed out at 100%. He gets  (5) weeks paid vacation, and (2) weeks of paid administrative leave. In addition Council has agreed to pay him (9) month's severance pay. On May 3rd, when his contract was just ratified, he actually asked for another NINE month's severance pay, but the Council turned it down. The uncertain outcome of the ballot measure was the reason for the request. However, Nora Davis could not get the majority to give it to him ($197,427,00]

The City Attorney should not work directly for the City Council as a Staff employee.  The City Attorney should work under the City  Manager. We don't need a separate city department functioning under a separate leader. All city departments should have only one set of priorities. The City Manager should control the use of resources for every city department, including expenditures for legal services. The City Attorney should not have unfettered authority hire outside counsel, or unilaterally decide how much we will spend on every case. Legal  Expenses are very costly, and must be better controlled.

Five separate individuals cannot properly manage a city employee on a day-to-day basis. The City Council refuses to require hourly accounting of time spent. (common in the field of law) The potential negative impact of such a requirement may be too revealing. We pay this individual more than a Quarter-Million Dollars each year, and there is no ability to discover how he spends his time...?
The politics associated with the operation and cost of the City Attorney's Office is the reason why controversy exists. Imagine the frustration of only being able to hear the opinion of a Legal Agent on every single matter. ?  Efforts to bring accountability result in immediate character assassination attacks by Nora Davis.

If the City Council contracts for legal services with a large municipal law firm, it removes the ability for personal relationships with Council Members. Evaluation of legal services would become performance based. A career City Attorney is unnecessary, and more costly over time, earning more money and benefits with less productivity and more determination to have it his way. He knows what's best for us.

The City Attorney May Have Violated State Laws on Conflict of Interest
Government Code Section 87200 includes "City Attorney's" within  the definition of a "public official" who must comply with state laws governing conflict of interest.

Government Code Section 87100 provides,  "No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.
Section 87105. (a) A public official who holds an office specified in Section 87200 who has a financial interest in a decision within the meaning of Section 87100 shall, upon identifying a conflict of interest, or a potential conflict of interest, and immediately prior to the consideration of the matter, do all of the following:
 (1) Publicly identify the financial interest that gives rise to the conflict of interest, or potential conflict of interest, in detail, sufficient to be understood by the public.
(2) Recuse himself or herself from discussing, and voting, on the matter, or otherwise acting in violation of Section 87100.
(3) Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters.


When the Notice of Intent to circulate the petition for this ballot measure was filed,  the City Attorney failed to comply with the provisions of the Government Code. Despite the obvious conflict, The City Attorney hired (with city funds) Manuela Albuquerque,  former Berkeley City Attorney, a long time friend, to investigate the validity of the proposed measure. Ms. Albuquerque promptly responded with a legal opinion "the measure is outside the scope of the initiative power of the electorate."  The Opinion was used as the basis of a written email request (below)  to withdraw the proposed ballot measure.

Dear Mr. Bukowski:
"Attached please find a cover letter and an opinion of outside counsel regarding the Emeryville Contract City Attorney Initiative Measure. As you will read for yourself, the opinion concludes that the Measure is outside the scope of the initiative power. Accordingly, I am requesting that you withdraw the Measure and provide me your decision no later than 5:00 p.m. on Tuesday, May 3, 2011. If you decide not to withdraw the Measure, then next Tuesday night as part of City Council Agenda item VIII.K., I will ask the City Council to authorize me to file a declaratory relief action to obtain a judicial declaration relieving me of my duty to prepare the ballot title and summary for the Measure. I ask that you give careful consideration of the opinion and withdraw the Measure so that the City can avoid the time, cost and expense of unnecessary and avoidable litigation."
Sincerely yours, Michael G. Biddle, City Attorney, City of Emeryville

Below is the response-
Mr. Biddle:  Thanks for your response.  You apparently think it is OK for you to hire outside counsel to have the ballot  measure declared to be invalid. I am not convinced the measure is invalid. My understanding is the test of validity doesn't happen unless it is approved by the voters....?  I don't believe the court is going to agree that a title and summary not be provided, even if the measure is invalid...
I don't think it is ethical, or proper, for you to handle any aspect of this ballot measure, since it affects you personally. If the court does not agree with you, and the measure goes forward, you have used city funds to provide an argument against approval of the measure. To me this is an act of gross misconduct.

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On May 3rd the City Attorney made a full (20) minute presentation to the Council, using Ms. Albuquqrque's legal opinion, to convince the City Council the ballot measure is illegal and should not be allowed go forward.

It became necessary for me to hire an attorney (Stuart Flashman) at my own expense, to provide another legal opinion to help overcome the City Attorney's determined effort to stop the proposed measure from going forward.. However, after Mr. Flashman addressed the City Council, The City Attorney's effort
was unsuccessful  Below is a partial transcript of  Mr. Flashman's comments made to the City Council, and the closing remarks of the City Council meeting on  May 3, 2011.

 Flashman said, "the courts really do not like pre-election challenges to ballot measures, because they say, hey, we put this in the constitution that people have a right to put something on the Ballot."  "We trust the people.., If the people want to put something on the ballot, let's see if they vote for it. If they do vote for it and it turns out it's illegal we can knock it off later, but why don't we trust the people, rather than having the court step in and take it off the ballot, or not let it get to the ballot..?"
"is this really a good use of taxpayer resources to try and file an action to get it knocked off, just to save the City Attorney the trouble of preparing a Ballot title and summary. To my mind that is not a good bargain"
"The other thing I have to say is I'm a little puzzled, and concerned, that the City Attorney is presenting this, and the City Attorney is involved in this, given that this Ballot Measure specifically involves the City Attorney. It seems like there's a conflict of interest there. if I was the City Attorney I would be stepping aside."

Partial transcript of city council meeting on May 3, 2011
Nora Davis    |   Mr. Biddle, it looks like we are going to proceed ahead.. And how will we... who's going to be handling this...?
Michael Biddle    |    Well, I could have Manuela Albuquerque.... At this point there is no..... in the statute, no point in time where it specifically calls out that the City Attorney should not be involved. It's when you are preparing the impartial analysis. But the preparation of the title and summary, there's no restriction, but I think I'm going to have Manuela prepare it for us.
Nora Davis    |    I, for one, think we need to get some distance here, because of the allegations that have been made here about conflict of interest.
Michael Biddle    |    That's why I had Ms. Albuquerque look into the Measure.<<
Nora Davis    |    I understand that, but as we go down this path, let's have an outside attorney handling this particular matter.
Michael Biddle    |   I certainly will.

However, ( as stated above) Mr. Biddle directed Albuquerque to prepare the Title & Summary for the ballot measure. Can it be a surprise the result is aimed to confuse & discourage voter support. It says, "the current city attorney, and two individuals within the City Attorney's Office are employees of MESA, and not of the City of Emeryville.
Are we to believe the Emeryville City Attorney is not an employee of the City..?  Emeryville taxpayer money is used to pay his wages & generous benefits...?  Mr. Biddle has a contract with the City, not MESA. His benefits are tied to what is provided to other city employees.
Emeryville taxpayers are paying him..MESA was created as a tool for City Employees, including Mr. Biddle, to avoid paying social security taxes.
It seems the title & summary was prepared with false & misleading information. However, If the title and summary was challenged, the time necessary to resolve the issue would mean the measure could not qualify in time for the November election.

A Summation
This ballot measure will provide Emeryville with the same opportunity as many other small cities who contract out legal services with large law firms who specialize in municipal law.
The collective economic power of numerous cities contracting with large municipal law firms creates a cost savings. One individual city, acting on its own, hiring different law firms, cannot achieve the same level of benefit. Such law firms have over 100 attorney's on staff to handle every aspect of a city's complex legal needs.
Approval of the ballot measure will:
[1]  Save money on the cost of legal services.
[2]  Establish hourly reporting for the high cost of all legal services.
[3]   Establish the preparation of an estimated budget for every case.
[4]  Establish direct communication between the City Council and the attorneys who represent the City.
[5]  Remove the politics from the City Attorney's Office to prevent personal relationships with Council Members (the reason why supportive members of the City Council are willing to pay him so much money).
[6]  Provide City Manager oversight over the operation and control of expenditures by the City Attorney. This insures every City Department has the same priorities. The City Manager should participate in the choice and evaluation of legal services provided to the City.
[7] Eliminate the necessity to pay the substantial cost of city employee benefits in the City Attorney's Office.
[8]  Eliminate the personal involvement, and personal opinion, of the City Attorney with the handling of personnel matters in the City.

THE VOTERS NEED TO DECIDE 
THIS IMPORTANT ISSUE