Antioch council majority agrees to revise policy on hiring outside attorneys so it doesn’t apply to them

Torres-Walker, Thorpe repeatedly interrupt city attorney during discussion

By Allen D. Payton

During Tuesday night’s Antioch Council meeting agenda on May 23, 2023, the council reviewed the City policy, for all of its departments, regarding the selection of contracted attorneys and the review, authorization and execution of all agreements for legal services and services to be provided by attorneys to the City. But the focus was revising the policy so that the council is not included.

Currently City Attorney Thomas L. Smith is charged with that responsibility based on the policy approved by the city council two years ago. But, last fall, the council, on a 3-2 vote, directed City Manager Con Johnson to hire an outside attorney for them on an invalid contract after Smith warned them three times not to, according to District 1 Councilman Mike Barbanica. That cost the city $39,000. (See related article)

According to the city staff report on the item, the Antioch City Council on February 26, 2021 approved the following:

“1. The City Attorney shall exercise discretion over the selection of all attorneys providing Legal Services, as defined herein, for the City including all of its departments.

2. [A]ll agreements for the provision of Legal Services, as defined herein, to the City, including all of its departments, or on behalf of the City that are to be paid by the City shall be submitted to the City Attorney for review and approval, and the City Attorney shall have the discretion to approve and execute all such agreements on behalf of the City when the City Attorney determines the agreement is consistent with Antioch Municipal Code, Title 3, Chapter 4, Article II. Any agreements for Legal Services to the City or on behalf of the City that are not approved by the City Attorney in writing shall be void.

3. [A]ll invoices for Legal Services, as defined herein, shall be required to be submitted to the City Attorney for review and payment through the City Attorney’s Office. No payment shall be made for Legal Services pursuant to existing or future agreements unless approved in writing by the City Attorney. Therefore, the budgeted amount for the City Attorney’ s Office shall include the amounts necessary for the payment of such invoices.”

“I think that pretty sums it all up,” said resident Andrew Becker during public comments on the item. “We approve ordinances in this city which are the law then we come to meetings, brazenly and we try to find a way to work around them. Whatever those determinations are you still have to live inside what the law is. You open us up…and you so brazenly do it. I voted for it with the understanding you would follow the laws in this city. Sometimes the law…means fixing it. But fixing it doesn’t mean circumventing it. Every time something comes to a vote we hear what the mayor says how he wants it to go and we take it. But for you to say we’re going to take our current policies and throw them out the window? For you to go on record and so brazenly say, we’ll figure out. The law? That’s how the healthcare district dissolved.”

“This item is being brought because this is a new policy. We adopted it as part of our police reform,” Thorpe said. “We wanted the city attorney to review the hiring of attorneys. In the past the police department just went and hired their own attorney. As has happened often, this policy binded us as a city council. But we’re the governing board.

“The California government code says the city attorney shall advise the council on all legal matters,” Smith interjected.

“We heard you the first time, thank you,” Thorpe responded. “This policy didn’t allow us to go get a second opinion. As a governing board…we should be able to do that.”

“The very same reason we created this policy is because the community is saying the police department’s internal affairs. Police shouldn’t review themselves,” Torres-Walker stated. “If we don’t trust what the city attorney is giving to us, we should have the right to get a second opinion without the city attorney. Our city attorney shouldn’t be able to hire an attorney to look into themselves.”

“Yes, it was a good policy in hindsight. But the council shouldn’t be included,” she added.

“I’d like to address that. If you don’t trust the people you’ve hired…” City Attorney Smith began saying.

“I don’t think we’re here for the council to get into a back and forth with the city attorney,” Torres-Walker said speaking over him. “I didn’t ask a question of the city attorney.”

Thorpe then allowed him to speak.

“I think it’s important what you said. If you don’t trust your city attorney, you have the ability to hire any city attorney you want. It only takes three votes,” Smith stated.

Torres-Walker interrupted him, again.

Thorpe stopped her and said, “I don’t want to get into a back and forth.”

“I just have to say is if there is a trust issue you can hire…” Smith began saying before being cut off, again.

“I think we’re all aware of that,” Thorpe responded.

“Perhaps the proper terminology isn’t a lack of trust but a disagreement with the advice being offered,” Torres-Walker clarified. “We should be able to seek outside counsel.”

“If we want a second opinion, we should be able to get a second opinion,” Thorpe said asking to have the policy revised.

“I went back and looked….I did not vote for it originally,” Ogorchock said. “I’m not in favor of this, now. He’s just reviewing the contract.”

“No. He would select the attorney,” Thorpe responded. “And we wanted this, and it included us. But I don’t think we should have to get a permission slip.”

“There has to be a city out there similar to ours,” Wilson said. “I can’t imagine there’s not a process that we can take to hire an attorney not of your choosing.”

“Before this policy, that was the case,” Thorpe responded. “If we wanted a second opinion, we could give direction to the city manager to hire an outside attorney. There are different examples. But I don’t want to go down that road. I’m just saying we shouldn’t be a part of this policy. All I’m asking is for that modification to this policy which I still think is a good policy.”

“I think we should go back and revise it,” Torres-Walker said. “There’s never been an instance when I didn’t trust our city attorney. So, I didn’t use the right language. But there was an instance when I didn’t trust the process. City Attorney, this isn’t me saying I don’t trust you. I should have used different language.”

Barbanica then said, “initially I was not for this. I’m fine with the policy the way it is, today.”

Ogorchock simply said, “no.”

Wilson supported revising the policy, agreeing with Thorpe and Torres-Walker that it should not apply to the city council. A revised policy will return for a future vote.

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