COMMENTARY City Attorney Represents the Interests of the ‘City,’ Defined as ‘the City Council, City Administrator, Department Heads and City Employees,’ Not the Interests of the Public, When Their Interests Are Divergent

The EMPLOYMENT AGREEMENT FOR LEGAL SERVICES, by and between the CITY OF CARMEL-BY-THE-SEA and DONALD G. FREEMAN, made and entered into on March 2, 2004, signed by Mayor Sue McCloud and City Attorney Donald G. Freeman, states in Section C. “Ordinary legal services shall include legal advice and legal opinions to the City Council, City Administrator, department heads and city employees, in the regular course of City business and concerning all such matters as administrative procedures, Council and Commission actions, ordinance and resolution interpretations, and shall include attendance at all regular Council meetings and regular Redevelopment Agency Meetings. Attorney is to be responsible for assisting in the drafting and preparing of ordinances, resolutions, ordinary contracts and agreements, and engaging in whatever legal research, study and review necessary to properly advise and protect the interests of the City.”

Outside counsel Stephanie Atigh’s “Investigative Report on City of Carmel-by-the-Sea Contracts” during City Administrator Jason Stilwell’s tenure revealed that the City Approving Authority for Contracts and Amendments to Contracts was the City Administrator or the City Council without reference to the city attorney. For example, the City Approving Authority for the City’s Contracts with MARK ALCOCK, Forensic Examiner (ASD-PCS-MA-001-2013-14, ASD-PCS-MA-002-2013-14 and ASD-PCS-MA-Examiner-003-20 13-14) was the City Administrator (Contract) or the City Council (Amendments) without reference to the city attorney for a total taxpayer expenditure of $344,875.09; $192,360 paid in excess of contracts (Fees only).

Similarly, the City Approving Authority for the City’s Contracts with PUBLIC CONSULTING GROUP (PCG) (ASD-PCS-PCG-001-2013-14, ASD-PCS-PCG-Tech2-2013-14, ASD-PCS-PCGMB-003-2013-14, ASD-PCS-PCG-IT-019-2014-15) was the City Council or the City Administrator without reference to the city attorney for a total taxpayer expenditure of $224,348.49.

The City Approving Authority for the City’s Contract with BOOTS ROAD GROUP LLC (ASD-PCS-BRWEB-016-2013-14) was the City Administrator without reference to the city attorney for a total taxpayer expenditure of $22,329.18.

The City Approving Authority for the City’s Contracts with RICHARD TAVENER (ADM-PCA-WSPAC-009-2013/14 and ADM-PCS-RTCE-0012-2013-14) was the City Administrator or the City Council without reference to the city attorney for a total taxpayer expenditure of $73,230; $5306.21 paid in excess of contracts.

And finally, the City Approving Authority for contracts with DAVIES COMMUNICATION (Perceptioneering, Inc.) and BLAZE PUBLIC RELATIONS (ADM-PSA-BLAZE-007-2013-14), under the existing legal contract with Stradling Yocca Carlson & Rauth, was the City Administrator without reference to the city attorney for a total taxpayer expenditure of $77,489.52.

Moreover, according to the EMPLOYMENT AGREEMENT FOR LEGAL SERVICES, by and between the CITY OF CARMEL-BY-THE-SEA and DONALD G. FREEMAN, City Attorney Don Freeman was financially compensated for legal services to the City with a retainer of $7,500.00 per month or $90,000 per year.

Yet the language of the contracts and the lack of reference to the city attorney reviewing and signing off on the Contracts imply that City Attorney Don Freeman was being compensated for providing “ordinary legal services to the City” when in fact he was not providing “ordinary legal services to the City” within the scope of his contract with the City as it specifically pertains to “contracts and agreements.” The City continues to defend City Attorney Don Freeman by saying that he was “out of the loop.” However, then-Administrative Services Director Susan Paul and then-City Administrator Jason Stilwell did not have the authority or power to terminate from city employment the city attorney; the City Council has the sole authority and power to hire and fire the city attorney.

Finally, the EMPLOYMENT AGREEMENT FOR LEGAL SERVICES, by and between the CITY OF CARMEL-BY-THE-SEA and DONALD G. FREEMAN, “may be terminated by either party at any time without cause.” That Mayor Jason Burnett and City Council Members Victoria Beach, Ken Talmage, Carrie Theis and Steve Dallas have chosen not to terminate the EMPLOYMENT AGREEMENT FOR LEGAL SERVICES, by and between the CITY OF CARMEL-BY-THE-SEA and DONALD G. FREEMAN, and instead have chosen to praise City Attorney Don Freeman, just like the mayor and city council praised then-City Administrator Jason Stilwell, informs the public about the mayor’s and city council members’ culpability for the City’s contracts fiasco.

City Attorney Employment Agreement

EMPLOYMENT AGREEMENT FOR LEGAL SERVICES
CITY OF CARMEL-BY-THE-SEA and DONALD G. FREEMAN
March 2, 2004

Written & Published by L. A. Paterson