Unlike many cities, San Leandro does not have a full time City Attorney of its own. Instead, it contracts with Meyers Nave, one of the most important municipal law firms in the state, for legal advice and representation. Jayne Williams, one of Meyers Nave’s principals, functions as San Leandro’s City attorney – but other members of the firm also do work for the city. Unfortunately, the quality of the legal advice that San Leandro is getting from Meyers Nave seems to be quite poor. San Leandro is currently facing a multi-million dollar settlement/judgement in the Faith Fellowship case and is opening itself up to litigation on several fronts. Meyers Nave benefits from the poor legal advice it provides to the city, charging attorney’s fees to represent it in lawsuits that arise when the city follows its advice.
As mentioned above, the most egregious example of this conflict of interest is the Faith Fellowship case. Here, a local church that had undergone dramatic growth tried to move to a building large enough to accommodate its congregation. The only property they could find that would work for them was zoned industrial, and the City Council refused to let them use that property as a church. Faith Fellowship sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the 9th circuit recently ruled that the city had no compelling interest in denying them that use, and remanded the case for trial on other issues. A close examination of the case leads me to believe that the city is not likely to prevail and will likely have to pay several million dollars in damages to the church. The city has already spent $500,000 on legal costs alone, and will be on the hook for Faith Fellowship’s attorneys fees as well.
Meyers Nave’s behavior on this case has been outrageous. First, it failed to warn the city about its legal liabilities under RLUIPA if it denied the church’s rezoning application. While it did warn the City Council that they could get sued, it did not explain what the potential damages of the lawsuit might be or what the likelihood of the church succeeding was. Once the City was sued, rather than advising the City to hire a law firm that specialized in RLUIPA and/or first amendment litigation, Meyers Nave had its own attorneys represent the city. Meyers Nave made a lot of money on attorneys fees by doing so, but its attorneys were unable to produce coherent or convincing arguments. Attorney Deborah Fox, in particular, made a fool of herself during oral arguments before the 9th circuit – she was clearly unprepared and was unable to answer the judge’s questions with any credibility or coherence. The rehearing petition filed after the 9th circuit unanimously ruled against the city is so poorly written and so disrespectful of both Faith Fellowship and the 9th Circuit appeals panel, that the city of San Leandro should be ashamed to be associated with it. Still, as inadvisable as filing that rehearing petition was, it does generate additional legal fees for Meyers Nave.
But the firm’s inadequate legal advice goes beyond the Faith Fellowship case. In 2005, the City of San Leandro entered into an agreement with Redflex for the installation of six red light cameras in the city. This agreement included a “cost neutrality” clause, which provided that the city and Redflex would share in the revenue from the red light camera tickets. This cost neutrality provision, however, is explicitly in violation of California law and San Leandrans have been able to have their tickets dismissed on these grounds. Moreover, there is currently a class action lawsuit on those exact grounds making its way through the courts that, if successful, might force the city in question to provide a refund to everyone who received a red light citation during that contract. Meyers Nave does not appeared to have warned the city about the illegality of that contract provision and of the potential legal and financial consequences of having it in place – thus, once again, subjecting the city to needless legal risk.
At its next meeting, the City of San Leandro will likely extend its contract with Redflex. The cost neutrality clause is gone (fortunately), but it remains questionable whether red light camera tickets are legal. The City Attorney has not, once again, explained to City Council members what the legal issues related to red light cameras are and what the city’s legal risk is in signing this contract.
The same can be said about a new policy that the City is considering to automatically delete all staff and council e-mails. This policy would violate the California Public Records Act, and would subject the city to litigation. Has the City Attorney explained these risks (and potential costs) to the City Council?
I suspect that this is the proverbial tip of the iceberg.
My suspicion is that San Leandro would do better if it hired its own full-time city attorney, someone who was able to give it objective, realistic advice and had no incentive to get the city into costly litigation.
April 17th Update
In response to a question in the comments, I’m updating this note with some information about the financial arrangements between Meyers Nave and the City of San Leandro. In 2008, the city entered into an amended agreement with Meyers Nave, for the firm to provide legal services indefinitely. Until then, the city legal costs averaged about $900,000 a year, though they were over $1.2 MILLION for the 2007-08 fiscal year. Legal costs under the amended contract are higher, and I will publish the actual expenditures when I get the numbers. Under this new contract, Meyers Nave gets paid:
-around $28K a month for basic City Attorney services
-$210/hour for attorney services and $110/hour for paralegal services for non-basic services
-5% of their fees for administrative costs
The amounts are to increase annually based on the consumer tax index, plus Meyers Nave may ask for additional compensation as it sees fit.
For more recent updates of what Jayne Williams and/or Meyers Nave has been up to in San Leandro, check out the Meyers Nave tag.