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Tuesday, August 9, 2011

Letter To The Tattler: Michael Webber

Resident Michael Webber Responds To Council Action: City Attorney Initiative

Emeryville resident, Michael Webber responds to the Tattler story on Monday August 8th about the City Attorney initiative and the Monday night council meeting; a meeting he attended.  Michael Webber is planning to throw his hat into the ring and run for city council in November.  Here is Mr Webber's letter verbatim:

Thanks for the accurate reporting. 

The special independent attorney told the Council that based on recent Supreme Court decisions, the City would very likely lose a lawsuit brought to place the measure on the ballot if the Council refused to place the measure on the ballot - the independent attorney repeatedly mentioned that placing the measure on the ballot is a "ministerial" duty which means it is not an issue, at this stage, that calls for administrative judgment or discretion. The independent attorney further advised the Council that not only would the Council most likely lose such a lawsuit, but would also have to pay attorneys' fees to the proponent of the initiative.

The independent counsel then advised the Council that if they opposed the initiative measure, the proper time to attack it was via lawsuit either after the measure went on the ballot, or via lawsuit after the voters had voted on it. Placing the measure on the ballot by no means indicated the Council supported it, only that the Council recognized their legal duty to do so.

During the initial public comment period I then asked the Council to please defer their legal challenge until after the election since there was no need at this stage to spend limited City funds to oppose a measure that may or may not win.

It appeared to me that both Kurt Brinkman and Jennifer West were looking for any excuse to publicly oppose the measure, but only if they were certain that the majority of the Council would vote to put the measure on the ballot so the City wouldn't get sued, lose the suit, and pay attorneys' fees (a senseless waste of resources). Once they were assured that they wouldn't be stirring up real trouble for the City, they both voted against even PLACING THE MEASURE ON THE BALLOT. IMHO this is a breach of their ministerial duty to the CIty (placing the measure on the ballot was a ministerial, not discretionary, act per the City's own specially hired independent counsel) and reflects their own lack of understanding of ministerial and discretionary acts, something that is Civics 101.

The City Clerk's presentation then moved to the costs/benefits of in-house (staff) attorney vs. contracting out to a law firm.

At this point I have to be purely opinionated and tell you that I have never seen such a lame, poorly-conceived, one-side "promotional piece" in my professional career.

Rather than go out with RFP's (requests for proposal, essentially asking municipal law firms to bid for the business), the City Clerk tallied up the number of hours spent by current city counsel, and extrapolated how much those same hours would cost the City if spent on outside lawyers.

Well of course you will always lose that type of pre-determined mathematical battle. In-house hours, no matter how egregiously over-paid, will always cost less than the SAME hours spent at outside law firms.

But what is MISSING from such a simplistic approach is the the fact that you have to pay inside counsel for every work hour, rain or shine, but with outside counsel you only pay for what you need. In addition, outside counsel, when properly managed, does not "churn" hours with inexperienced associate "research," I would rather have one hour of "good" time (at a higher rate) then 10 hours of "wheel spinning" by inside counsel who may not understand the heart of the issue the way a specialized outside counsel does.

Brian [Donahue], during comments, made the interesting point that in the current recession, with the building boom over, maybe inside counsel won't have as much to do as before, and no allowance has been made for that slowdown in calculating the relative costs of inside vs. outside counsel.

I was horrified to hear - did I hear correctly? - that Mr. Biddle is apparently not an "exempt" employee who does not get overtime pay. The City Clerk let drop a comment that Mr. Biddle (did I hear correctly, I want to get this right?) is currently billing the City an additional 30 hours per week beyond his normal 9-5 work day week (did I hear that right? what happened to 8-5? I have to assume that Mr. BIddle, as salaried employee, gets an hour off for lunch - does that mean he really only has a 35 hour work week? cushy).

But the most telling point, the real elephant in the room, was the slide that showed that Mr. Biddle is part of the "executive leadership." My fear has long been that he usurps the discretion of both the City Manager and of the City Council. For the first time that I have seen, Mr. Biddle has been publicly acknowledged to have an "executive leadership" position. But I thought he was an advisor, not a leader? 

Ken [Bukowski] was accused of having a vendetta against the City Attorney. I don't know about Ken, but I certainly would want to replace the existing City Attorney by any legal means, if I had been deliberately excluded from information, reports, and advice. Those two (Ken and Biddle) don't have to LIKE each other, but the City Attorney SIMPLY CANNOT be allowed to selectively counsel SOME Council Members more fully and more timely than others. THAT is why I signed Ken's initiative.

During the second public comment period, I objected to the obviously one-sided, biased City Clerk's report on costs/benefits, and also pointed out that the Pollard wrongful discharge case, besides ruining a long-time employee's career, cost the City over $4 million dollars, and wondered where Mr. Biddle was during that whole fiasco - if the job of the CIty Attorney to to provide "in-office" assistance, why didn't he listen to Ms. Pollard's complaint and give it the fair hearing (and her the fair treatment) it deserved?

I want to thank Ruth Atkin for voting to have the special Council meeting to allow this to come before the Council in time for the November general election, and to thank Mayor Davis, who despite clearly detesting the measure, electing to do her civid duty to place the measure on the ballot.

And of course the greatest thanks to Ken who tirelessly fought an uphill battle to single-handedly put this measure on the ballot.

~William "Michael" Webber

in the interests of full disclosure, I hope to file nominating papers this week to run for City Council. Yes, I believe it is time for a change.

1 comment:

  1. I have now confirmed that attorney Biddle does NOT bill for extra hours he logs. The City Clerk used an estimate of his annual "overtime" hours to prepare her estimate of the costs of outside counsel, if outside counsel spent the same total hours at work.
    ~Michael Webber