What we know about Waynesboro city attorney switch: Not much

Waynesboro would not be the first city in Virginia to hire an outside legal firm to serve, in effect, as its city attorney.

waynesboroWhich isn’t to say that there’s a compendium of experiences from an array of localities going that route sitting out there for us to refer to in terms of trying to judge the idea by its merits.

Bristol hired a new city attorney in January on a retainer relationship that seemed more like a nice compromise, than anything else, allowing the city to save on benefits and the attorney to maintain a small federal practice.

Manassas, for its part, had used a local law firm in the place of a city attorney for years before deciding earlier this year to create a new city attorney position on the staff.

This, I got from Googling. I also reached out to the Virginia Municipal League, a non-profit, non-partisan association whose members include all 38 Virginia cities, 160 towns and eight counties, to try to cover the bases.

“I am not aware of any other cities looking into this issue,” VML general counsel Michelle Gowdy wrote me back by email. “Both the county of Amherst and Caroline have recently looked into this issue. New Kent made the decision to switch about 2 and 1/2 years ago.”

So the waters aren’t totally uncharted, is what I’m getting at. Bristol, sorta, kinda, has an outside firm in the place of its city attorney, though the outside firm is a father-and-son, the son is the one doing the city attorney work, on a $150,000 contract, and, by the way, he’s also now the interim city manager.

New Kent is a couple of years into its new arrangement. (And with the help again of Google, I learned that the firm working in New Kent has two other counties in similar arragements.)

Two other counties are looking into it. One city that had gone the outside-firm route has now gone back.

Bottom line: seems to me there’s enough information out there to weigh whether or not this kind of arrangement would work well in Waynesboro, which is planning to replace City Attorney Todd Patrick, who is set to step down at the end of the month, with a move to a retainer relationship with a private firm.

But as I’ve tried to dive into this issue to learn more, I’ve been frustrated by the complete and utter absence of transparency from the City Council in terms of process.

Basically, what information are City Council members looking at as they discuss the next steps here?

The matter has yet to be discussed once in public, though the City Council has been moving in this direction since an April 24 executive session after that night’s regular public City Council meeting.

The agenda item denoting the discussion called for the City Council to “(c)onvene in closed meeting for the following purpose: Discussion, consideration, promotion, performance, demotion, salaries, disciplining of charter officials, specific public officers, appointees, or employees of the public body, where such evaluation will necessarily involve discussion of the performance of specific individuals, as permitted by Virginia Code section 2.2-3711(A)(1).”

Boilerplate stuff, for those who follow the minutiae of local government. The timing of the meeting, to those in the know, wouldn’t raise any red flags. City Council typically begins its reviews of its so-called charter employees in the mid-spring, ahead of the meeting at the start of the new fiscal year, on or around July 1, where the Council is tasked with either re-appointing those employees, or appointing new people in their stead.

First thought that I have here is that I’d like to see whatever staff report would have been put together to give City Council members guidance on the pros and cons of maintaining the status quo vis-à-vis going the outside-firm route.

We know, for instance, what the city attorney office costs now: in the fiscal year 2017 budget, the line item is $149,216.

So we can weigh that versus what going with an outside firm would cost.

You’d expect a staff report to review what, say, New Kent County has experienced since making a similar move two and a half years ago.

It’s either going to be more expensive or less expensive. That part is easy.

Harder to quantify would be the impact of outsourcing on the speed and efficiency of legal services. A city attorney with an office down the hall is ostensibly more approachable when the need arises to draft a new city ordinance, review a question about the applicability of a zoning code to a proposed commercial or industrial development, issues related to human resources, than an outside firm headquartered in Richmond, which is where the firm of Hefty, Wiley and Gore, which serves as county attorney in New Kent, is based.

Again, we could look to the experiences of those who have made this move to learn what has worked, and to get ideas on how to improve on what they’ve done.

It would be interesting to me to learn why Bristol went in the direction that it did, why Manassas went back in the other direction, for instance.

No such staff report exists, I’m told.

And even if it did, none of us non-City Council types would have the right see it under Virginia law.

“Even if records did exist and meetings were held, there are exemptions for records and meetings both in the context of personnel matters and contract negotiations that could apply during the hiring/negotiating process,” Alan Gernhardt, the senior attorney at the Virginia Freedom of Information Act Advisory Council, wrote to me in an email.

So there you go, folks. You assume that the Freedom of Information Act requires government to be fully transparent, that all you have to do is request information about whatever it is that you think they’re up to, and they have to give it to you.

In a past life, I was an award-winning investigative reporter, and if you wonder why I spend the bulk of my time these days writing books and talking about baseball on ESPN3, I present to you Virginia’s toothless FOIA.

I’m not asking for a personnel review of Todd Patrick, or details on bids that may have been submitted by law firms interested in signing on as the city attorney.

Eliminating a position specifically spelled out in the city charter and assigning its duties and responsibilities to an outside entity seems like a big deal to me.

People have a right to know what is being done in their name. Right?

I should add one final note here from Gernhardt: “However, once a contract is awarded or a position filled, that information would be subject to disclosure.”

Meaning that once City Council, in this case, has already done whatever it’s going to do, I can request whatever information might be there and piece things together after the fact.

Terrific. That’s all I’ve got.

Reporting by Chris Graham


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