More Than Distance Isolated Counsel From Departments
By AMANDA BRONSTAD
Staff Reporter
Over the past decade, Los Angeles city attorneys have become increasingly removed from day-to-day contracting operations of the city’s three revenue-generating departments, which are now under investigation.
Although city attorneys approved many of the contracts, their involvement in the negotiation and selection process has been limited.
The shift would appear to have left city attorneys in less of a position to know how contracting decisions were being carried out at the airport, harbor and water and power departments. Those practices are now the subject of investigations by both the U.S. Attorney in Los Angeles and the Los Angeles County District Attorney.
“There’s been a dramatic change,” said Bret Lobner, who resigned last year as supervising city attorney at Los Angeles World Airports, which operates the city’s four airports and who had spent a total of 26 years at LAWA.
Lobner, who is now general counsel to the San Diego County Regional Airport Authority, said that after former Mayor Richard Riordan appointed Ted Stein to the Airport Commission in 1993, city attorneys would no longer be invited to participate in contract negotiations.
“I thought it was beneficial to have a city attorney involved because the city attorney could ensure there was fairness. Not that there wasn’t, but that there would be, and the rules would be followed,” Lobner added.
The process by which contracts are selected is a central issue in audits released by City Controller Laura Chick. Specifically, she criticized the airport for allowing commissioners to sit in on interviews with bidding contractors, a practice banned by Mayor James Hahn earlier this year. Stein, who actively sat in on such panels and who had been a major fundraiser for Hahn, resigned last month. Chick released similar audits last year of the Department of Water and Power and of the Port of Los Angeles.
In many ways, city attorneys find themselves in the awkward position of representing two clients: The city and the departments. On a regular basis, chief attorneys report to the general manager or executive director of the department, or to a board commissioner.
Each department chief has a staff of assistant city attorneys located at the departments who manage an array of city, state and federal laws and regulations.
“Clearly the advantage of being physically located at the airport was having the availability of lawyers to assist in legal problems in a very timely manner,” said Jim Pearson, who was chief of the municipal counsel branch from 1987 to 1995 and joined the office in 1966.
Still, the remote location created some tension between the departments and the city, as well as some cynicism among city officials about whether the attorneys in those departments really represented the city’s interests.
“Some of those attorneys think of themselves as corporate attorneys who work for the agency, not for the city or the city attorney,” Chick said. “There have been times in the past when legal advice maybe wasn’t in keeping the city in mind. When you send staff long-term to go work ‘over there,’ it just happens.”
There also have been conflicting accounts of what advice city attorneys have been giving.
In the past year, officials at the port and airport told auditors they were advised by legal counsel not to retain documents, according to the working papers of the audits. The City Attorney’s office has maintained it never gave such advice.
“Our advice has been very consistent,” said Eric Moses, a spokesman for City Attorney Rocky Delgadillo (photo). “Our advice to them is they should document their decision-making.”
In an interview last week, Delgadillo said that the role of his office “is to be the legal counsel for the municipal corporation of Los Angeles, which is not the harbor department or the airport. At the end of the day, the client, the municipal corporation, can decide to take our advice or exclude us from a meeting if they so choose.”
Staff changes
In the past few weeks, Josh Perttula, special assistant city attorney who advised the city during a 2002 investigation of the Entertainment Industry Development Corp. by the L.A. County District Attorney’s office, took over supervision of the three proprietary departments. He replaces Patricia Tubert, chief of the municipal counsel branch, who continues to oversee 40 other departments.
The move was made, Moses said, “in light of all these allegations, for the city to get an attorney that would focus on the responses to the district attorney and the U.S. attorney. The grand jury investigation workload under Patty’s purview exponentially increased.”
Also, in the past few months, Managing Assistant Claudia Culling, who supervised the government counsel division, was transferred to LAWA to oversee environmental planning for the LAX Master Plan.
Perttula said that in his experience city attorneys have limited involvement in contract negotiations. “We really play a role of advice,” Perttula said. “They will seek out our advice when they need it. We wait to get all the facts for whatever matter they want and advise them on the facts we’re given.”
City attorneys do not make policy decisions regarding a department’s contracting procedures, Perttula said. “If these individual proprietary departments want to go through the interview and selection process, we have no role in it and they can do that. But if they had specific questions where they wanted to seek our advice, we’d make ourselves more than available.”
Pearson, who was chief city attorney at the harbor in the late 1970s, said he sat in on port lease negotiations and the presentations of potential airport contractors, just in case someone needed legal advice in the meetings.
“It was not our position to decide the wisdom or the prerogative (of a contract),” he said. “But if the city attorney’s office becomes aware of some action that is going to be taken, which would be an illegal act, it is incumbent upon the city attorney assigned to that division to go to the general manager and say, ‘You can’t do this.'”
Delgadillo said some city departments have taken him up on his offer to be lead negotiators and some have not. “That’s a continuing dialogue we have with all the various representatives of our client,” he said.
City attorneys typically give legal advice when asked.
In a recent case, DWP commissioner Annie Cho asked Delgadillo about whether she faced a conflict of interest in voting for the extension of a $22.9 million contract to MWH Americas Inc. Cho owns Jin Woo Communications Group, a subcontractor to a company that works for MWH. Delgadillo, citing court rulings on state law covering conflicts of interest, said the contract should be considered by the City Council, which approved it late last month.
