sr-021009-7a~®
~;tYof City Council Report
Santa Monica
City Council Meeting: February 10, 2009
Agenda Item: ~- m~
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Ordinance Amending Section 2.24.073 of the Santa Monica Municipal
Code As It Applies to Professional Contracts for Legal Services
Recommended Action
Staff recommends that the City Couhcil approve on first reading the attached ordinance.
amending the Municipal Code provision on purchasing professional services to create a
special provision for the purchase of legal services necessary for litigation and thereby
protect the City's interests in adversarial contexts.
Executive Summary
The City Attorney's Office and the Risk Management Division of the Finance
Department purchase the .attorney, expert and consulting services necessary for
particular cases and claims. Consistent with the City's legal rights as a litigant, these
purchases are handled confidentially and are disclosed only as required by law.
Finance Department personnel have suggested that though this long-standing City
practice comports with state law, it may not, in particular cases, be consistent with the
requirements of the Municipal Code. Therefore, at the Finance Departments
suggestion, legal staff is recommending the attached amendment to the Municipal Code
which would conform the Municipal Code to existing practice and state law. If the
proposed ordinance is adopted, staff will continue to apprise the Council of significant
proposed expenditures in the context of closed session reports on litigation.
Background
The Finance Department has been. working to standardize purchasing procedures and
ensure that all payments for services are. supported by contracts made in accordance
with the Municipal Code and administrative requirements. Pursuant to Municipal Code
Section 2.24.073, that process includes public Council approval of all professional
services contracts of $70,000. However, in the case of legal services necessitated by
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pending or anticipated litigation, public consideration of contracts for services is not
required by state law and may be detrimental to the City's interests. For example, state
law allows litigants to keep confidential most information about a party's use of
attorneys, experts and consultants until shortly before trial because early disclosure of
this information would hinder the party's case preparation and provide an advantage to
the other side. To harmonize these considerations, the Finance Director suggested that
legal staff prepare a modification to the Municipal Code that would recognize the special
need for confidentiality in the acquisition of this limited class of services.
Discussion
The attached proposed ordinance would modify Municipal Code Section 2.24.073,
regulating professional service contracts, by adding a new subsection (f) specifically
authorizing existing practices for purchasing professional services .for- legal work
undertaken iri the context of pending or anticipated litigation or a legal claim against the
City. The. proposed language is similar to subsection (e) which creates an exception
for professional service cohtracts involving the preparation of environmental
documents. However, the purpose is different. Subsection (e) was adopted to
expedite the processing of development permits. Subsection (f) is proposed to protect.
the City's interest in litigation. As noted above, those interests require confidentiality
until the point is reached at which state law requires disclosure. Otherwise, the City's
adversaries in litigation will gain an unfair advantage.
Approval and adoption of the proposed ordinance would not alter existing City
practices. Council would retain its control over litigation. The vast majority of the City's
legal work would continue to be done in house by the City's. legal staff. The Risk
Management Division of the Finance Department would continue to process claims.
Both would continue to engage and utilize outside attorneys, experts and consultants as
needed on a case-by-case basis. And, the City Attorney would continue to report to
Council, in closed session, on the progress of litigation, including any financially
significant use of outside counsel, experts and consultants. Legal consultants retained
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outside of the adversarial contexts of litigation and claims would continue to be hired
through the standard contracting process, including public Council approval of contracts
exceeding $70,000.
Budget/Financial Impact
The proposed ordinance would codify existing practice, its approval and adoption would
have no financial impact.
Prepared by:
Marsha Jones Moutrie, City Attorney
Approved: Forwarded to Council:
Jones Moutri¢ `~ P.(L~r'hont Ewell
>rri@y (, City Manager
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F:\Atty\M un i\Laws\MJ M\ProjessionalServicesContractsOrd-Lega1021009
City .Council Meeting: 2-10-2009 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING MUNICIPAL CODE SECTION 224.073 AS IT APPLIES
TO PROFESSIONAL CONTRACTS FOR LEGAL SERVICES
WHEREAS, ih conjunction with defending litigation and processing legal claims,
the City hires professionals who supply legal services, including attorneys, experts and
consultants; and
WHEREAS, laws governing civil litigation give the- City certain rights of
confidentiality with regard to the purchase of such services; and
WHEREAS, state law also protects the City's right to an "even playing field" in
litigation so that the City and the public do not suffer an unfair disadvantage in
comparison to adversaries in litigation; and
WHEREAS, the City wishes to effectuate its right of confidentiality in purchasing
legal services in a manner consistent with its duties of disclosure.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
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SECTION 1. Santa Monica Municipal Code Section 2.24.073 is hereby amended
to read as follows:
CHAPTER 2.24
PURCHASING SYSTEM
SECTION 2.24.073 PROFESSIONAL SERVICES CONTRACTS
(a) Except as established in subsection (e) of this Section, the
City Council shall approve every agreemeht involving an
expenditure of more than seventy thousand dollars for professional
services. The award of such contracts shall be made to the best
qualified person or firm.
(b) In determining the best qualified person or firm, the following
criteria shall be utilized:
(1) The training, credentials and experience of the person or
firm;
(2) The demonstrated competence, ability, capacity and skill of
the person or firm to perform the contract or provide the services;
(3) The capacity of the person or firm to pertorm the contract or
provide the service promptly, within the time specified, and without
delay;
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(4) The sufficiency of the person's or firm's financial and other
resources;
(5) The character, integrity, reputation and judgment of the
person or firm;
(6) The ability of the person or firm to provide such future
service as may be needed; and
(7) The price which the person or firm proposes to charge,
including whether the price is fair,, reasonable and competitive.
(c) The City Council may in its sole discretion reject any and all
proposed professional services agreements whenever in the
opinion of the City Council:
(1) The agreement does not comply with the City's
specifications or other requirements;
(2) The proposed service should be abandoned or delayed;
(3) The best interests of the City would be served by the
rejection of the proposed professional service agreement.
(d) The City Manager is authorized to solicit requests for
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proposals or qualifications or to proceed in such other fashion for
professional services, whenever the City Manager determines in his
or her sole discretion that the best interests of the City would be
fully served by proceeding in such a manner.
(e) Professional service contracts of seventy thousand dollars or
less or professional service contracts involving, the preparation of
environmental documents and analysis undertaken to meet federal
or state environmental laws may be awarded without City Council
approval in accordance with procedures established by the City
Manager which ensure that the selection process is undertaken
consistent with the criteria. set forth in subsection (b) of this Section.
(f) Professional services contracts for legal work undertaken in
conjunction with pending or anticipated litigation or a claim against
the City may be awarded without City Council approval in
accordance with procedures established by the City Attorney which
ensure that the selection process is undertaken consistent with the
criteria set forth in subsection (b) of this section.
{€}~ During any. period of a declared state of local emergency,
the City Manager or the Director of Emergency Services is
authorized to implement such practices, policies and procedures for
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obtaining professional services as are necessary to protect the
public health, welfare or safety without otherwise complying with
this Section, if the City :Manager or the Director of Emergency
Services finds that .complying with this Section would cause
unnecessary expense or delay. The City Manager or Director of
Emergency Services shall report all such findings at a regular
meeting of the City Council no later than thirty days after making
the finding. (Added by Ord. No. 1743CCS § 4, adopted 5/10/94;
amended by Ord. No. 1998CCS § 4, adopted 1/9/01; amended by
Ord. No. 2039CCS § 1, adopted 7/5/02; amended by Ord. No.
2228CCS § 1, adopted 5/22/07)
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, .such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
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SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
MARSHA JO S MOOT IE
City Attorney~,l v
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