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Smart Voter
Alameda County, CA November 8, 2011 Election
Measure F
Amends Emeryville Municipal Code regarding City Attorney
City of Emeryville

Ordinance - Majority Approval Required

Fail: 448 / 34.78% Yes votes ...... 840 / 65.22% No votes

See Also: Index of all Measures

Results as of Nov 14 12:36pm, 100.0% of Precincts Reporting (4/4)
Information shown below: Official Information | Impartial Analysis | Arguments |

Shall an initiative ordinance be enacted that amends Emeryville Municipal Code Section 2-1.302 to prohibit the Emeryville City Council from employing a City Attorney and subordinate employees in the City Attorney's Office and require the City Council by contract to designate a City Attorney or law firm to act as City Attorney?

Official Sources of Information

Impartial Analysis from Emeryville City Clerk
1. There are material errors in the Findings in Section I of the Measure. Finding 2 incorrectly states that the office of city attorney "has been filled by a City employee," that the City has been "obligated to provide employment benefits to that employee and his or her subordinates" and that the City is required to comply with laws and regulations governing such employees and "has become unnecessarily encumbered and restricted in efficiently carrying out its duties." The Emeryville City Attorney and the staff in the City Attorney's office are not employees of the City of Emeryville. They are employees of the Management of Emeryville Services Authority ("MESA") a joint powers authority created by the City of Emeryville and the Emeryville Redevelopment Agency. The Emeryville City Council sits as the Board of Directors of MESA. The City Council of the City of Emeryville contracts with MESA to provide the City of Emeryville with contract city employees for most positions within the City, including those in the City Attorney's office, other than police and fire staff.

2. Finding 3 concludes that "the office of the City Attorney would be most efficiently and economically provided for by having that office filled on a contract basis by a qualified outside law firm or attorney." By virtue of the MESA contract the City already contracts for City Attorney services with MESA and the measure would have no effect on the current staffing configuration of the City Attorney's office.

3. The Measure would prohibit the City Council from employing a City Attorney or any employees in the City Attorney's office. The Council by contract would be required to appoint a City Attorney or law firm. This provision would have no legal effect because the City already contracts with MESA for City Attorney services and none of the members of the City Attorney's office, including the City Attorney, are employees of the City of Emeryville.

4. The Measure would preclude any City Council in the future from employing an in-house City Attorney and staff, irrespective of whether the City Council concluded that such a staffing configuration was the most cost effective way of receiving city attorney services. The City Manager has concluded that contracting with a law firm would cost the City 71% more than employing in-house City Attorney staff and, if the law firm contract is limited to the same amount as that incurred for an in-house City Attorney's office, there will be a 38 % reduction in the level of City Attorney services and additional costs would likely still be incurred for additional legal services.

5. The City Council has been advised by special counsel that the Measure is likely invalid because it conflicts with powers of the City Council under state law to appoint a city attorney.

6. Unlike current practice, the measure requires the Council to act on the recommendation of the City Manager, concerning the City Attorney's contract.

7. The measure limit of two years on the term of the City Attorney's contract is already the law.
Karen Hemphill, City Clerk

  News and Analysis

Oakland Tribune

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Arguments For Measure F Arguments Against Measure F
Under the Emeryville Municipal Code, the City Council hires the City Attorney. To reduce the cost of legal services, this measure would force the City Council to acquire its legal services on a contract basis from an outside firm, using competitive bidding. To promote a greater harmony with City staff, the measure requires the Council to consider the recommendation of the City Manager in contracting for its legal services.

Currently, the City Attorney receives a salary package of $263,000 a year, and nine month's severance pay, both of which are more than the Emeryville City Manager or the Oakland City Attorney receives. The City Attorney, in turn, hires a deputy City Attorney, a paralegal, and the outside law firms that do the nuts and bolts of the City's legal work. The City Attorney has no assigned duties other than attending City Council meetings.

The City Attorney has unfettered authority to spend money and to set priorities independent from other City departments, without prior approval of the City Council. No budget is ever prepared for an upcoming case. No accounting is made for the City Attorney's time. By transitioning to an outside firm, the City Manager will be able to reduce the cost of legal services by setting priorities, approving expenditures in advance and monitoring the work.

Passage of this measure will send a strong message to the City Council, demanding fiscal responsibility in its procurement of legal services.

s/ Ken Bukowski

Rebuttal to Arguments For
Please vote "NO" on Measure F.

Currently, the City Council has the ability to contract out legal services for the City or hire an in-house City Attorney. Let the City Council continue to provide oversight for the most cost effective legal services to the taxpayers of Emeryville. Forcing the Council to contract out legal services could dramatically increase our costs. Emeryville, as a "general law city," may find that removing this power from your City Council is unconstitutional as it usurps powers granted to the City Council by state law.

Your City Council is open to evaluating the most cost effective and efficient ways to provide legal services, whether it is having an in-house legal department and private contracts, or another alternative. Your City Council welcomes verifiable information about the City's legal costs, with increased accountability, specific tracking of time and expenses, and greater transparency. But we do not support a structural change.

We put great faith in the voters' role: to elect representatives, with wise choices in November. Unfortunately, too often, initiatives become a way of manipulating the general public. In the interest of Emeryville and its taxpayers, let's examine our legal department and get the best representation for our hard-earned dollars. The City Council employs the City Attorney and the City Manager. They work for you. Please reject one council member's attempt to disrupt Emeryville's governance structure.

Please vote "NO" on this ballot initiative.

s/ Nora Davis

s/ Jennifer West
Vice Mayor

s/ Ruth Atkin
Council Member

s/ Kurt Brinkman
Council Member

We urge you to vote "NO" on the City Attorney Ballot Initiative.

  • This measure is likely to cost the city MORE in legal fees because all work would be contracted out (privatized) and not performed by salaried employees.
  • Much legal work is already contracted out, some years more than what is provided in-house.
  • Greater accountability exists with employees than with private firms or consultants.
  • Emeryville needs an in-house legal department for other city departments to consult so they can easily and efficiently obtain a legal opinion.
  • Managing outside legal counsel would be an additional job for existing city staff.
  • This initiative could eliminate the positions of three individuals, including our Americans with Disabilities Act compliance coordinator. The lone councilmember who wants to get rid of the city attorney ignores two other employees. He is simply out to "get" the city attorney.
  • This initiative is likely un-Constitutional, as the State Constitution gives city councils the authority to appoint a city attorney.
  • Are you ready to spend more money in a legal contest over this initiative's legality?

This initiative would tie council's ability to use in-house legal counsel, even if it is shown to be the lowest cost alternative.

The truth is this initiative is one council member's attempt to circumvent the decisions of the City Council because of his disagreement with the Council majority. He has distributed incomplete or misleading information to qualify a ballot measure to change the structure of legal services in Emeryville. This is not the way to conduct our city business and sets bad policy for this and future City Councils.

Please vote "NO" on this ballot initiative.

s/ Nora Davis

s/ Jennifer West
Vice Mayor

s/ Ruth Atkin
Council Member

s/ Kurt Brinkman
Council Member

Rebuttal to Arguments Against
Two years ago, the investigative website surveyed 88 California cities. It found that 52 of them hired an outside law firm as City Attorney. What do the overwhelming majority of the surveyed cities know that Emeryville doesn't?

Not surprisingly, the survey found that the cities that contracted out their legal department spent less than half as much for legal services as cities with a staff City Attorney. This was true both for larger as well as smaller cities, as the average percentage of the general fund spent on legal services was 1.54% for in-house counsel cities, while only 1.31% for outside counsel cities.

Six of the ten cities that spent the highest percentage of their general fund on legal services had in-house counsel. Nine of the ten cities that spent the lowest percentage of their general fund on legal services had outside counsel. There is a pattern here: contracting out these services costs less.

Given these data, can the "impartial" analysis possibly be correct, claiming that contracting out would cost 71% more? How convincing is its assertion that the City Attorney is not a City employee? He is employed by MESA, the Emeryville entity whose Board of Directors is the City Council! The Initiative would require the City Council to contract for legal services with an entity that it doesn't control.

Your YES vote on this measure will enable the City to better control its legal expenses, resulting in lower costs to the taxpayers.

s/ Ken Bukowski

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