Without city attorney’s knowledge violating ordinance; helped mayor with performance evaluations of city attorney, possibly manager; on Tuesday’s council meeting agenda

By Allen D. Payton

On October 13, 2022, Antioch City Manager Con Johnson engaged the services of an outside law firm regarding internal investigation procedures, less than two weeks before the council on a 3-2 vote hired him as the permanent city manager on Oct. 25.  Then, on Nov. 4th, the embattled Johnson, who was placed on paid administrative leave on March 17, 2023, signed a “procedurally invalid” contract with the firm.

According to the city staff report for Item O. on tomorrow (Tuesday) night’s council meeting Consent Calendar agenda, the contract is “with Attorney Greg Rolen of Haight Brown & Bonesteel LLP (‘Haight’) to provide legal services to the City concerning its internal investigation procedures…without the knowledge…and was not approved by the City Attorney as required by Antioch Resolution Number 2021/26. Therefore, the agreement is procedurally invalid. Since that time, Haight has billed the City $38,744.52 for legal services purportedly pursuant to the Agreement.”

However, the staff report only includes the latest invoice, dated March 13, 2023 for just $1,405.57, but not the first two invoices dated Jan. 12 for $30,107.20 and Feb. 21 for $7,231.75.

The staff report further reads, “The City cannot lawfully provide Haight with any compensation pursuant to a procedurally invalid contract. However, any failure to pay Haight for services rendered to the City could result in a claim for payment by Haight, further litigation expenses to the City, and potentially legal liability to the City. Therefore, in order to avoid the risk of a legal claim by Haight – and corresponding litigation costs and potential liability – the City may lawfully provide Haight with payment for its legal services to the City pursuant to the Agreement, provided such payments are duly ratified by the City Council. If the City ratifies this payment, the City should also declare that no further work shall be undertaken under the invalid Agreement.”

Meetings With Outside Attorney, Mayor, Council

The latest invoice, third of three, shows work by attorney Greg Rolen with Mayor Lamar Thorpe on Feb. 2 and listed as “Teleconference with mayor regarding representation city manager” which lasted for 30 minutes. It also shows Rolen billed for “Attend, virtual closed session” on Feb. 14 for 50 minutes. That meeting which was listed on the council’s agenda as a performance evaluation of the city attorney. The next day, Rolen held a “Teleconference with mayor regarding Council meeting” for 60 minutes. Finally, on Feb. 21, the attorney composed an email to Antioch City Attorney Thomas L. Smith.

Questions for City Attorney, Others

City Attorney Thomas L. Smith, Acting City Manager Forrest Ebbs and Finance Director Dawn Merchant were asked Monday afternoon for copies of the first two invoices and a few questions about the matter.

They were asked, “since the contract signed by City Manager Johnson was procedurally invalid, why should the taxpayers pay for the bill and it not be charged to Mr. Johnson and anyone else who spoke with the firm’s attorney(s), including Mayor Thorpe, whose name is listed on the latest bill for the ‘Teleconference with mayor regarding Council meeting’ on Feb. 2 and again on Feb. 15, plus the firm’s time on Feb. 14 to ‘Attend, virtual closed session’? Why would the mayor and/or city council need advice from outside legal counsel for the city attorney’s performance evaluation which was on the Closed Session agenda for the Feb. 14th meeting?”

Merchant responded, “I do not have the copies of the invoices since they have not been paid.”

She was pressed further, following business hours on Monday, pointing out the latest invoice was addressed to her and asking who has the previous two invoices.

Questions for Thorpe, Councilmembers

Thorpe and the other council members were sent the following questions Monday afternoon:

Regarding Item O on tomorrow night’s Consent Calendar agenda, the legal bills for an invalid contract, why did you need advice from outside legal counsel for the city attorney’s performance evaluation which was on the Closed Session agenda for the meetings on Oct. 11 and 25, and Nov. 22, 2022 and Jan. 10, Jan. 24, and Feb. 14, 2023?

Also, why was the ‘Teleconference with mayor regarding representation city manager’ on Feb. 2 necessary? Was that for the city manager’s performance evaluation or the fact Con had hired the law firm through a ‘procedurally invalid’ contract? If so, why couldn’t you have just sought advice from Thomas? Were there any other such teleconferences between the mayor and the outside attorney(s) regarding the city manager, his performance evaluation also previously scheduled for Nov. 11, 2022, Jan. 10th and 24th, or anything else? If so, what else was discussed?

Is this a new practice in helping prepare you and follow up with the preparation of the city attorney’s and/or city manager’s annual performance review? Has this been done by the mayor or council in previous years?

Did you know Con was going to hire the firm on Oct. 13th, less than two weeks before he was hired as the permanent city manager? Did you direct him to do so, or did he suggest hiring the law firm and you approved it? 

Since the first two bills and their details were not included with the staff report on the item, what else did the firms’ attorneys discuss with either any of you, Con or anyone else on city staff and in what other closed sessions did they participate?

Also, was the fact that Con’s contract with the law firm was ‘procedurally invalid’ one of the reasons you placed him on paid administrative leave?

Finally, since you can’t legally pay the bill, why should the taxpayers foot the bill for Johnson’s mistake (and possibly yours, if you approved the law firm’s hiring) and he not be required to pay the almost $39,000 out of his salary which is about equal to two months, which would be fair since he’s currently being paid to do nothing?”

“Not to my knowledge,” District 2 Councilman Mike Barbanica said in response to only the question if the council had ever used an outside law firm to assist in the evaluations of either the city manager or attorney. He said other questions might be related to closed session matters which he can’t discuss. Barbanica was the only council member to respond prior to publication time.

Any discussion by the council and direction to Johnson to hire an outside law firm, it if occurred, was never reported out of Closed Session by either the mayor or city attorney.

Former Mayor Freitas Says Consulting Outside Law Firm for Performance Evaluations “Strange”

Asked if he had ever hired an outside law firm to help him and the city council evaluate either the city attorney or city manager, former Antioch Mayor Don Freitas said, “It never happened. The city attorney is an at-will employee and can be terminated by the city council. If the council loses faith in either the city attorney or city manager, or they no longer trust them, they can terminate their contracts.”

“Why you would need to hire an outside counsel to tell you how to evaluate your in-house counsel. It’s strange,” he added. “As mayor, I would never have permitted, unless the council had appointed me to speak on their behalf to speak with an outside attorney. All council members should have been able to speak with the attorney.”

Please check back for any additional responses or any other updates to this report.

the attachments to this post:

Invoice #3 work with Thorpe, Council

Attorney-agrmt-signed-by-CJohnson-110422

Attorney-ltr-to-CJohnson-101322

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