Item Q20
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 16. 2007
Bulk Item: Yes No ~
Division: County Attorney
Department Contact: Suzanne Hutton
AGENDA ITEM WORDING:
Approval of the creation of an additional Assistant County Attorney position in the County Attorney's
office to provide litigation representation for the County Commission.
ITEM BACKGROUND:
The cost of outside counsel to litigate cases continues to be a serious budgetary issue, and it is
anticipated that litigation will continue at about the same level for both the foreseeable and the
indefinite future. Additionally, there have been suggestions from people attending different phases of
litigation, including the staff of the County Attorney's office, that in some instances the presentation to
the judge or jury could have been of a higher quality. While there are attorneys on staff who have
considerable past experience in litigation, and job descriptions of two of the positions actually include
litigation, the current staff has more transactional, administrative, and pre-litigation
(mediation/mitigation of current problems) duties than allow for any but the most routine of cases to
be handled in-house. The proposed position is designed to improve the quality of the County's
representation and to reduce the costs of litigation.
PREVIOUS RELEVANT BOCC ACTION:
Elimination of in-house litigators in the 1990's, and switch to outside counsel.
STAFF RECOMMENDATIONS:
Approval
TOTAL COST:
$66,429 to $102,967 plus benefits
BUDGETED: Yes _No X
COST TO COUNTY: $66,429 to $102,967 plus benefits
SOURCE OF FUNDS: General
Fund
REVENUE PRODUCING: Yes
NoX AMOUNTPERMONTH_ Year
APPROVED BY: County Atty X- OMB/Purchasing_
Risk Management _
DOCUMENTATION:
Included
X
To Follow_
Not Required_
DISPOSITION:
AGENDA ITEM #
JUSTIFICATION FOR ADDITIONAL
IN-HOUSE ATIORNEY POSITION
During the past year, the issue of the costs of using outside counsel for the majority of the
County's litigation and for providing counsel to the HOCC and/or administration for specific
types of matters (such as affordable housing, wastewater and storm water, FAA requirements,
employment issues, etc.) has been raised by individual commissioners a number of times. The
County Attorney's legal staffhas been conscious of the cost issue, and requests assistance from
outside counsel only when deemed necessary. Reasons for referring matters to outside counsel
include time constraints and an excessive workload, and the educated expectation that the outside
counsel with special expertise can resolve an issue in a fraction of the time needed for an in-
house attorney to do the research necessary to resolve the issue. In some litigation matters, the
choice of outside counsel has been set for two or more years. In some matters, the contracts with
outside counsel have not provided a sufficiently succinct and ascertainable scope of services to
allow the County Attorney to significantly effect a reduction in services.
More than one member of the public has suggested at Commission meetings that the in-house
staff be increased and the outside counsel be reduced. There are two mechanisms for reducing
outside counsel fees - decrease the demand for attorney services or increase in-house staff to take
over some of the work handled by outside counsel. In times when the County has numerous
construction projects and the prospects of not only traditional inverse condemnation (takings)
cases, but also Bert Harris Act cases, as well as the multitude of other activities incurring legal
expenses, whether related to employment, licensing, or any other matter, it is unrealistic to
expect that there can be a decrease in demand for legal services.
The cost of outside counsel is often at rates from $250 to $635 per hour. It is recognized that we
pay outside counsel not only for their individual services, but the cost encompasses the overhead
they have to cover to operate a private law firm. However, at the price of $250 per hour, it
would require only about 540 hours to have to pay as much as we would a full-time attorney with
benefits. Employees generally have 2080 hour years, of which (after holidays, vacation and sick
leave, assuming all such leave is taken, an employee would work approximately 1840 hours a
year. At that rate, the County could hire three full-time attorneys for the equivalent of about 3
In-House Litigator
May 2007
10f2
months worth of work by outside counsel. Certainly, the County could add in-house legal
counsel and support staff at less than the cost of outside counsel.
Once a Growth Management attorney is hired, the greatest need for attorneys will be in the area
of litigation. Currently, two transactional attorneys are stretched to the maximum doing both
transactional work and some legwork in anticipation of litigation. The attorney originally hired
to do Code Enforcement and some other litigation has found a more than full-time job dealing
with airport issues. The Chief Assistant has the skills to litigate, but has one full-time job in
managing the litigation cases and another half-time job actually litigating the cases requiring the
least amount of research and preparation.
An additional benefit of in-house counsel is that there is no potential conflict of interest issue.
It is anticipated that a litigator position being added to the staff would enable the County to
handle litigation in a more efficient and less costly manner, although there will still be the need
to retain outside counsel. The goal of the County Attorney's Office is to reduce costs and
provide a better product.
In-House Litigator
May 2007
20f2