Opinion Piece by: Stephen Jaffe
“Sunlight is said to be the best of disinfectants.” – Supreme Court Justice Louis D. Brandeis
This begins with two disclaimers.
First, the writer is the attorney for Steve McHarris, the former City Manager of the City of Milpitas, who is the plaintiff in an ongoing lawsuit arising from the facts of the termination of his employment by the City. The reader should therefore be aware of the inherent bias of the author.
Second, while the acts and omissions of some persons affiliated with the City of Milpitas government are described, nothing here is intended or should be read to be critical of the City’s outside counsel in the McHarris litigation. In a contentious case, those lawyers defending the City have remained civil and professional.
Good judgment by a City Council can only be achieved by the Council being truthfully and fully informed by the City’s staff of all of the facts and the options available to it. When critical facts are omitted, hidden or falsely stated to a City Council by the staff, good decisions by the Council are not possible.
The most recent example of this arises in connection with a special meeting of the Milpitas City Council scheduled for August 13th. The agenda and staff report for item C-7 on the consent calendar of the agenda is highly misleading and misinforms the City Council and the public. Consent calendars are used for routine, low-profile items which are not expected to be controversial or to require public discussion. But they can also be used to “slip” and hide actions without public attention.
Item C-7 on the August 13th consent calendar appears to propose a new engagement contract with the current lawyers for the City in the McHarris case. But the same law firm is already actively defending the City in the case. That means a previous engagement contract agreement must already exist. The proposed engagement agreement or contract would purport to replace or supersede an existing one for no plausible or apparent reason except perhaps to hide material facts from, mislead or to deceive the Council and the public.
The staff report on the proposed “new” contract (presumably written by the City Attorney’s office) omits any mention of (1) the existence of any previous contract(s) with the same law firm, (2) how much is presently unpaid and owed to the law firm, (3) the City’s fees and costs paid to date, (4) an estimate of the cost to the City going forward defending the McHarris litigation, or (5) the fact that the City Council on multiple occasions rejected requests for more money to be paid to the same law firm. As a best practice, similar staff reports for major contracts proposed to the City Council contain that kind of important information. Their omission from this report is conspicuous and inexplicable.
Further, “new” attorney engagement agreements of this nature and scope require a retainer be paid. But no retainer is required by this “new” engagement agreement. That is because the same law firm is already engaged under a pre-existing engagement agreement and a retainer was already paid.
But worst of all, the proposed contract is completely open-ended.
It has no cap on spending by the City Attorney’s Office for outside lawyers. The
absence of any City Council control unlimited spending by the City Attorney’s office to defend a case which can and should be settled is highly troubling.
The residents of Milpitas deserve better. The City Council should closely question those proposing this “new” contract regarding the facts, circumstances and motivation for it and let sunlight into the decisions the Council must make.
The saddest part of this is that immediately after the complaint was filed I proposed in public forum that the City Council just pay Mr. McHarris through February so he could get his full retirement; around $125,000 total cost. I believe, based on the Courts in CA that Mr. McHarris would easily accomplish that goal of achieving the equivalent of the settlement offer or more. The City Council/City Attorney wouldn’t even discuss the idea. It was clear when talking with City staff that while Mr. McHarris was still employed, he was left out of meetings at which as City Manager he should have been invited. That is called a hostile work environment in any HR setting, or, as a judge in one of my cases stated, Constructive Dismissal. After over a decade of experience overseeing HR lawsuits in U.S. and Asia; it should have been clear to any Attorney that the City would end up paying at least twice this. Just sad that money that could be spent on streets, parks, recreation, etc. is now being paid to attorneys. And, that does not include the cost of any eventual settlement. If you have questions, read the complaint, then the lawsuit and ask yourself if you were on the jury, what would you decide. Tell the Council to settle this case.