When the Milpitas City Council decided to fire its in-house city attorney in 2015 and opted to contract out its legal services instead, it was done under the guise of saving the City money.
Six years later, and a majority of the council is now looking to revert to the old model with much of the same reasoning: saving cash amid pandemic-induced budgetary crunches and having an attorney dedicated to the City for more than two days a week.
But the decision has raised red flags for at least one council member who says the City has yet to conduct a full financial analysis to confirm that hiring an in-house attorney would be a cost-saving measure.
City officials have set aside a budget of $1.07 million for the attorney’s office for the current fiscal year; however, it could cost upwards of $1.2 million to hire an attorney, a deputy attorney, and a legal secretary — and obtain contract attorneys for specialized legal services.
Councilwoman Karina Dominguez broached the fiscal issue at Tuesday’s council meeting during a discussion wherein the council provided City officials with feedback on the qualifications and salary range for the position.
“This is the model that unfortunately got our City into deep challenges with litigation, and [it] unfortunately did not provide transparency,” Dominguez said.
According to a 2015 news article from San Jose Inside, former Milpitas City Attorney Mike Ogaz, who served in his role for eight years, had a combative relationship with then-City Manager Tom Williams.
Following his ousting by the council, Ogaz filed a multimillion-dollar lawsuit against the City, alleging that his firing was retaliatory because he had called for an investigation into Williams’ conduct. In 2017, the City settled with Ogaz for $975,000.
At Tuesday’s meeting, Dominguez began saying that it was hard for her to provide feedback on the position without a cost analysis when Mayor Rich Tran interrupted. The mayor stated that the council had already received that information.
However, in a follow-up call with The Beat, Assistant City Manager Ashwini Kantak said they didn’t do a full cost analysis comparing the two models, primarily because they were never asked to.
“We did a really rough look back,” Kantak said.
The City’s number two executive added that the cost will also depend on the new attorney’s specializations and whether the City needs to contract out additional legal services. Under the last attorney’s eight-year tenure, Milpitas relied solely on its in-house attorney on three occasions. The rest of the time, they needed additional outside counsel.
Dominguez believes the mayor’s decision to move to an in-house attorney is retaliation against current attorney Chris Diaz of Best Best and Krieger –– Milpitas’s contracted firm since 2015. The councilwoman has publicly accused Tran of harassment, sexism, and bullying on multiple occasions.
“There is a reason why this mayor is talking over me,” Dominguez said at the meeting. “He does not want me to speak the truth. The truth is I put a complaint against him for harassment, and now the man that supported and did his job to protect me is losing his job. This is exactly the politics that we need to get out of city hall.”
When asked by text what he thought of Dominguez’s accusation, Tran replied: “That accusation is out of this planet and City Hall is not a place for out of this world accusations. All City Council meetings are aired live for all residents to watch. I’ll state it again that whoever wants to make baseless allegations can have their attorney contact me.”
And when asked if he would support the full cost analysis that Dominguez is calling for, Tran doubled down, stating that “we have done a cost analysis, ask the city manager.”
The mayor also asserted at the meeting that he was focused on more than just costs.
“Our city attorney is here two days a week, which is good, but we want more than good,” he said. “We want great. We want excellent. We want fully committed. I want someone to commit their life to the City five, six, seven days a week.”
In the past, Tran has voiced concerns over “racking up a bill” by placing phone calls to Diaz, who bills by the hour.
Councilman Anthony Phan told The Beat that he also has concerns over the salary range, which City officials set at $207,992 to $259,903 for the head attorney alone.
“[It’s] too high for an in-house attorney, especially during a pandemic where we have been forced to do budget cuts,” he said. “The entire decision is impractical and isn’t in the best interests of the City.”
He added that Best, Best and Krieger have done “exceptional work” for the City.
“We’ve gone through tough legal battles and BBK has been a great partner with the City through it all,” Phan said.
During Tuesday’s meeting, the councilman also raised issues with the integrity of the process –– specifically the role of the subcommittee that’s composed of Vice Mayor Carmen Montano and Tran.
According to Human Resources Director Jeannine Seher, the subcommittee authorized hiring an executive recruiting firm to aid in the search for the new city attorney. But Phan said bypassing the council felt like they “skipped a step.”
“I’m not sure what the point of providing the direction is if the agreement has already been executed and we have the consultant here today,” Phan said. “I would understand if this was to be discussed [and] then tonight we would authorize such a firm. That’s something that I typically recall is in line with our City process in terms of bringing consultants onboard.”
Phan added that subcommittees usually play an advisory role and “don’t have unilateral decision making abilities.”
But Tran defended the subcommittee’s action, saying that it didn’t have any role in selecting the firm.
“The city manager’s office selected the recruiter,” he said. “At no time did any elected official on the subcommittee contact that recruiter directly or engage in negotiations with the recruiter that’s being used.”
Tran added that the committee did recommend the recruiter be located in California.
Council voted 3-2 to move forward with the hiring process, with Phan and Dominguez dissenting.
City officials expect the recruiting process to be completed by December, with the new city attorney set to start in January 2022.