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7.3. SR 12-18-2006 City of Elk River REQUEST FOR COUNCIL ACTION Agenda Section Meeting Date Administration December 18, 2006 Item Description Recommendation from Prosecutin Item Number 7.3. Prepared by Lori ohnson, Ci Administrator Reviewed by Introduction In May of this year, the Council directed a Prosecuting Attorney Committee made up of Counci1m.ember Paul Motin, Councilmember Larry Farber, Police Chief Jeff Beahen, City Prosecutor Chris Johnson, and me to evaluate the method in which the city provides for its prosecution services. The Committee has thoroughly researched and reviewed all the information and is prepared to make a recommendation to the City Council for discussion and consideration. Discussion --~~~,~~ The idea of having an in-house prosecuting department first was discussed by the Council in July, 2001 during budget discussions. At that time Sherburne County provided prosecuting services and received a portion of the City's fine revenue as payment. The city received approximately $112,000 in fine revenue after Sherburne County took its share. However, many of the cases did not get processed in a timely manner creating a substantial backlog of Elk River cases. Based on a recommendation from the police chief, the Council determined that the best way to eliminate the backlog was to hire an attorney to handle prosecuting city cases. The Council discussed the fact that no other cities our size have a prosecuting attorney on staff. There are six large cities, St. Paul, Minneapolis, Bloomington, Duluth, Coon Rapids, and Minnetonka that have on-staff attorneys. These cities also have civil attorney services in-house allowing for shared clerical staff and providing coverage in the absence of the prosecuting attorney. The Council also discussed the possibility of contracting the service but decided in-house was the best option. On July 2, 2001, the City Council approved proceeding with hiring prosecuting attorney Chris Johnson and legal secretary Jennifer Johnson to begin prosecuting services in-house effective January, 2002. The financial information presented from the Police Department indicated fine revenue would increase substantially, and the cost to have an in-house prosecuting attorney department would result in a net operating loss of $35,000 in the first year. The information suggested that fine revenues would increase to cover all costs of the prosecuting department. As you can see from the summary of fine revenue and prosecuting costs listed below, the budget impact the changed prosecuting from a revenue generating function to one that costs more than the fine revenues received. S:\Council\Lori\2006\Attomey Recommendation Revised.doc $151,908 $148,887 $160,912 $176,455 $159,027 $204,850 Revenue (Cost) for Prosecuting $111,584 $109,826 $83,416 ($21,884) $24,581 ($10,291) ($16,134) ($37,558) ($49,850) Court Fine Year Revenue 1999 $111,584 2000 $109,826 2001 $83,416 2002 $130,025 2003 $173,467 2004 $150,621 2005 $160,321 Ytd 2006 $121,469 Budgeted 2007 $155,000 Prosecuting Costs This financial issue is one of the main reasons this item came up for discussion again in 2006. We. have heard from Mr. Johnson that his department cannot continue to operate as it currendy is. There are coverage and workload issues that need to be addressed. In order to function well, he agrees that change needs to take place. The need to eventually add staff so that there was someone to cover prosecuting when prosecutor Chris Johnson is gone and someone to cover office functions when the legal secretary is gone causes the budget to increase even more; adding an attorney will cause an immediate and drastic increase the budget. These issues lead to several questions the Committee researched. Is having a prosecuting department the best option for the city? If status quo is not acceptable, how do we best address the city's needs? Is it more expensive to provide the services through in-house staff than to have a contracted prosecutor? Do the benefits of having in-house staff outweigh the additional costs? Could we get the same or similar quality of services at a reduced cost by contracting? J Initially the Committee reviewed the options available to deal with coverage issues. The Committee did not feel that adding another attorney was the best option so the Committee recommended to the Council that RFP's be requested to determine if the service from a contracted prosecutor would be cost effective and deliver similar results. Two RFP's were received and the Council directed the Committee to interview the two firms and report back to the Council. The Committee has interviewed both firms, and feels that the city's needs can be met using a contracted prosecutor. With that the knowledge that quality prosecuting services are available to the city on a contractual basis, the discussion returned to the Committee's main questions; which option is the best financially and which best meets the city's needs? First, although it is difficult to estimate precisely what the costs will be for contractual prosecution services, the Committee felt it may be considerably less than the cost of providing the service in- house; at a minimum savings would be at least $50,000 per year and could be substantially more. The 2007 legal budget for prosecuting services is $204,850. This includes two full time employees, one attorney, one legal secretary, and a part-time clerical position (which was also included in the 2006 budget but has not yet been filled). The cost for consulting services is estimated to range from $110,000-$130,000; of course this is a very rough estimate and will change based upon how cases are s: \Council\Lori\2006\Attomey Recommendation Revised.doc scheduled and the amount of work that can be handled by a paralegal that is billed at substantially lower rates. In reviewing future needs and the related costs, the Committee also took into consideration the fact that the in-house budget would continue to increase as staff was added to cover the increased work load and to provide coverage. The Committee discussed whether there were other advantages of maintaining an in-house department that outweighed the additional costs of having an in-house department. The Committee did not feel there were enough benefits from having an in- house staff to outweigh the additional costs. Although it is convenient to have the attorney at City Hall, the department tends to operates independendy and time has not been available as originally thought to provide assistance on civil cases. Communication with the arresting officers, investigators, other police staff and administration is an important consideration in this decision. The Committee feels that no matter what decision is made, efforts to increase communication need to take place. Further, although City Prosecutor Chris Johnson occasionally provides assistance on minor civil matters, he has indicated he does not have time to assist with civil matters because of his prosecuting schedule. Adding another attorney is an option, but, again, it would have a significant impact on the budget. Based on this information, the Committee agreed that contracting was the most fiscally responsible way to handle the City's prosecuting needs. If the Council agrees to contract for prosecuting services, the next step is to determine which of the two firms would serve the City best. At the November 20 Council meeting, the Council authorized the Committee to interview the two firms who had submitted RFP's for prosecuting service. The-~'" committee interviewed Mr. William Hawkins and Mr. Scott Baumgartner representing William G. Hawkins and Associates and Mr. Tom Fitzpatrick and Mr. Chris Johnson representing Randall, Goodrich, and Fitzpatrick, PLC. The Committee asked a series of questions including experience level of the firm, how they would handle increased work load, their communication style and how they plan to communicate with the Police Department, cost of service, their knowledge of the Sherburne County court system, and their relationships with Sherburne County court personnel and judges. Attached are the rates for each firm as presented in the RFPs. Although the Committee has discussed making a recommendation for Monday's meeting, we have decided to gather more information before presenting the final recommendation. The Committee is currendy conducting more research and doing reference checks on the two firms. If all of the information is received before Monday's meeting, the Committee will present its final recommendation at that time. The Committee is very aware and is concerned that this affects the employment of Chris Johnson; therefore the Committee wants to make sure all of the information we have is correct and complete. As I stated earlier, he is partnering with Tom Fitzpatrick on the proposal from Randall, Goodrich, and Fitzpatrick. If that firm is selected, he would continue to be lead prosecutor for Elk River as an employee of that firm. In conclusion, because the Committee now knows that comparable prosecuting services are available through an outside law firm and because contracting this service results in considerable cost savings, the Committee is recommending that the in-house prosecuting attorney department be eliminated and the City begin contracting for this service. A three month transition period is proposed to accommodate this change. If the Council agrees with that recommendation, Legal Secretary Jennifer Johnson would be transferred to another open secretarial position in the city. FinanciallmDact The Committee estimates that the savings will range from $50,000 to $100,000. Attachments Letter from Chris Johnson s: \ Council\Lori\2006\Attomey Recommendation Revised.doc Letter from William Hawkins Copies of the RFP were distributed previously; contact me if you need another copy. Action Reauested The City Council is asked to consider the Committee's recommendation to discontinue providing in- house prosecuting services and contract for this service. If the Committee is prepared to make a final recommendation which firm it feels is best to provide this service verbally on Monday, the Council is asked to consider that recommendation. Council Action Motion by _ Second by _ Vote Follow Up s: \Council\Lori\2006\Attomey Recommendation Revised.doc December 13,2006 Dear Mayor and Council Members, In the spring of 2006, a committee was formed to look at the future of the City Prosecutor Department. I was on the committee. The issue became whether to continue with me as the in-house prosecutor, or to contract with a law firm who could provide those services. I was assured by you that my job performance is not at issue. Rather, the issue is that the city needs to find the most cost-effective way to pay for these services. The city requested proposals for legal services. Two law firms submitted bids. I would be a part of one of those law firms. Last Thursday, Lori Johnson told me that the committee would be recommending that the city contract for its prosecution services with the other law firm. I was really taken aback by this as it seems to be a departure from what has been communicated to me throughout this process. I'd like to share with you some of my thoughts. Five years ago, I left a stable position at the Sherburne County Attorney's office to become the Elk River City Prosecutor. I was told the long-term plan was to have an in- house legal department that would include the civil work. I was excited about starting this new department and have been fully committed to its development. With Elk River having its own prosecutor, fme revenues were projected to go up because the city would get a higher percentage of the fine money. After the first year, the fine revenues were approximately $100,000 short of what was projected. This was a gross miscalculation. It had nothing to do with the prosecution of the cases, or some other unforeseen change in circumstances. Subsequently, judges have been imposing lower fmes because of increased surcharges and fees. This has impacted fine revenues. It became clear that this position was created based on flawed information. The financial viability and where this position fit into the city's organizational structure, had either not been thought through or was not understood. Where the city prosecutor fit into the organizational structure of city government has been an ongoing issue. Initially I reported to Pat Klaers, the city administrator. When he left, the city looked again at its organizational structure. I received an e-mail from Chief Beahen, proposing that I be aligned below and answer to him. According to his e-mail, the council thought this made sense. One council member felt this would be a conflict of interest. A prosecutor represents society as a whole, and in my case, the citizens of Elk River. A prosecutor works with law enforcement, while maintaining independent judgment. This is not discretionary, it's mandated by the Minnesota Rules of Professional Conduct (rule 3.8 and rule 5.4). This issue was resolved at a council work session. As a prosecutor, I understand the importance of good communication with the police department. I make it a point to contact Chief Beahen a couple of times a month. I contact patrol officers and investigators to discuss cases. I've done officer training. I have and continue to encourage input from law enforcement regarding charging and disposition of cases. I have had nothing but very positive feedback about my job performance. This feedback has come from the judges, attorneys, court personnel and the police department. The police department gets a printout of the dispositions of all the cases I prosecute. No one, including the chief of police, has come to me with any complaints about my job performance or case dispositions. I have been able to obtain favorable dispositions without having to go to a jury trial. As your prosecutor, the level of experience, effectiveness, commitment and integrity that I bring to this position is unmatched in the area legal community. The quality fIrm that I've aligned with is the right choice for Elk River. We've offered a very competitive bid with several cost-saving measures. By contracting with my fIrm, Elk River would experience a smooth transition, while it continues getting the quality services its grown to expect, from having me as your prosecutor. Contracting with Randall, Goodrich and Fitzpatrick is the Right Choice Randall, Goodrich and Fitzpatrick Hawkins and Associates Chris would join this fmn - hereinafter RGF &J. This is the other firm that submitted a bid. Competitive Bid - RGF & J . Lowest bid for attorney time - $90 per hour . Legal assistant's time - $50 per hour o Drafting of complaints by our legal assistant, with attorney supervision, results in substantial savings to our clients. o Our legal assistant has 25 years of prosecution experience. Years of Prosecution Experience . Chris Johnson (lead prosecutor) - 19 years . Tom Fitzpatrick (back-up coverage) 24 years - selected as a Super LawyerlProsecutor by Minnesota Law and Politics and the Twin Cities Business Monthly. . Scott Baumgartner (lead prosecutor) - has been prosecuting for two months. . Bill Hawkins (back-up coverage) semi-retired - has done little in-court prosecution in the past five years. Criminal JUry Trial Experience - P~t'JSe-.,h~ . Chris Johnson - approximately 15 jury trials . Tom Fitzpatrick - approximately 25 jury trials . Scott Baumgartner - 0 jury trials . Bill Hawkins - 0 jury trials in the last 20 years Chris' note: I have taken cases to jury trial. However, because jury trials are time-consuming, they are costly. They involve attorney time, police officer overtime, Elk River citizens' time as jurors, etc. The caseload I prosecute includes misdemeanors and gross misdemeanors. These types of cases should seldom go to jury trial. The fact that I have not had any jury trials in the past five years shows that I'm an experienced, effective prosecutor who is able to resolve cases with favorable dispositions. This means si~ificant cost-savings to the tax-payers. This would be particularly significant if Elk River is contractingfor their legal services. For example: A case resolved at the first appearance could result in one billable hour. If it's taken to jury trial, it could mean 20-25 billable hours. Elk River Resident . Chris Johnson is a 14 year resident of Elk River. Sherburne County Court SYStem . Chris Johnson has worked 16 years in the Sherburne County Court System. He is already a familiar, respected part of the system, therefore, it will be easy to work with court administration, etc. in adjusting calendars to keep the costs down for Elk River. j2/15/2006 13:53 LAw Ol'FlCliS Op , , " Wdliam G. Hawkins and Associates LAW OFFICE 2140 4TH AVE ~ 6351090 NO. 164 [;J01 , I ! J I Wll.UA.M G. fuWKINS Seon C. BAUMGARTNER ugtJI ASS/Sld"U T AMMI]. UVEGES HOLLY G. PROVO 2140 Fouml A VEmJe NoRtH ANoKA. MlNNESarA 55303 PHo~ (763) 427-88n FAX (763) 421-42]3 E~MAJL HawkLawl@lloJ.com December 15, 2006 ,! Lori Johnson City Administrator City of Elk River 13065 Orono Parkway Elk River, MN 55330 VIA FACSIMILE 1763J 635.1090 Dear Lori: I have been advised that you desire more information regarding the trial experience of our firm. As I indicated in our interview, the attorney in our firm that will be r.esponsible for handling the majority of the criminal trials on behalf of the City of Elk River will be Scott Baumgartner. Scott has been practicing law for 13 years and has had in excess of 12 jury trials during that period of time. In addition, Mr. Baumgartner has appeared at numerous court trials, motion hearings, at least s;x appearances before the Minnesota Court of Appeals, and one appearance before the Minnesota Supreme Court that resulted in a published decision. Prior to Mr. Baumgartner joining my firm. we opposed each other on several matters and his competency and professionalism was the reason I asked him to Join my firm and specialize in criminal law. , have been a municipal attorney for 35 vears and in the first half of my practice I was primarily responsible for prosecuting all matters for numerous cities in Anoka County. I had 20-30 jury trials during that periOd of time. The second half of my law career was primarily devoted to handling civil municipal matters for our clients. I did continue to be involved in criminal prosecution matters and tried in excess of 200 criminal court trials during this periOd of time. In our application, I have listed at least two Jaw enforcement officers, as weir as the Anoka County Attorney, as persons who are experienced in criminal law and can confirm the expertise of our firm in handling the criminal prosecutions. Please 12/15/2006 13:53 LAW OFFICE 2140 4TH AVE ~ 6351090 NO. 164 [;102 : I Ms. Lor; Johnson December 15, 2006 Page Two feel free to contact them. .1 r ho.pe this provides addltionar clarification to this issue that has been raised at this late date in the application process. Please feel free to contact me if you have any questions. William G. Hawkins WGH/tju Johnson. Lori \ . . Page 1 of 1 LC rl/andU2l1 I~f I &'/00 l-ft(Yl___~]~ 3: From: HawkLaw1@aol.com Sent: Saturday, December 16, 20066:20 PM To: Johnson, Lori Subject: Prosecution services Dear Ms. Johnson: This weekend I had occasion to review the City Council agenda for the December 18 meeting and the supporting documentation submitted for consideration by the City Council in determining what action should be taken regarding the prosecution services for the City. I was so appalled at the letter written by your current City Prosecutor concerning the qualifications of Mr. Baumgartner and myself that I am responding on Saturday evening from my home. I do not know Mr. Chris Johnson and have never spoken with him. He made no written or verbal inquiries of Mr. Baumgartner or myself about our current status as lawyers or our criminal prosecution experience. Yet he states in his letter that I am semi-retired and have done little in-court prosecution in the past five years. Those statements are false, self-serving and based upon no direct personal knowledge of Mr Johnson. Perhaps he should have confirmed them with me prior to making them. . I find it very curious that now Mr. Johnson states if he is chosen as the lead prosecutor, while working for an out~ide law firm, "this means significant cost-savings to the taxpayers", Why was contracting with outside law firms not proposed by Mr. Johnson when the costs of prosecution were over $176,000 in 2005, probably will exceed that 2006 and are budgeted at $204,850 for 20077 I am very familiar with the costs of prosecution for Cities of Anoka, Andover and Lino Lakes who are comparable in size with Elk River. These cities costs of prosecution are substantially less than those of Elk River. I had expectations that this process could have been completed in a more professional manner, however, it seems inaccurate personal allegations have been introduced into the decision making process. I ask that you share this email with the selection committee and the city council during their deliberations on this matter. Thank you for your time and consideration. William G. Hawkins Johnson. Lori -1 ! g~ge 1 of 1 (!C rriClrjOC1Cf lall?! {)(p kt^lt 7. 3, From: Beahen, Jeff Sent: Thursday, December 14, 2006,11 :49 AM To: Johnson, Lori Subject: E-mail This is being sent to members of a church in the community. FYI Subject: Prayers for one of our members I am taking the liberty to ask you to pray for Chris Johnson, a member of the Church Council and Odyssey 2010 team. As some of you know Chris is presently the City Attorney. Recently there has been some political maneuvering that has resulted in a proposed reccomendation that will come before the City Council on December 18. In short the proposed reccomendation is for Elk River to contract out its legal services and to contract with an Attorney other than Chris. Obviously it is a complex and long story BUT I do ask you to pray for Chris (and Katie) and the City Council that the right, ethical and appropriate decisions are made. Jeffrey A. Beahen Chief of Police Elk River Police Department 13077 Orono Parkway Elk River, MN 55330 763-635-1201 jbea hen@police.ci . elk-river. m n. us .' ......:...,.~-""=.._. 12/18/2006