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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 1 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 2 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 3 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: 1 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; 2 (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 3 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 4 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. 5 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 6