Langley to consider keeping Weed as city attorney
December 4, 2011 · 9:57 AM
The law firm that was roundly criticized inside and outside Langley City Hall for its clumsy handling of the mayor’s salary controversy is being offered a new contract by the city.
The city council will consider a new one-year deal for the Snohomish-based law firm of Weed, Graafstra & Benson, Inc. at the council meeting Monday. Grant Weed, the president of the law firm, has been the city’s attorney since March 2008.
The move to keep Weed and his fellow attorneys on retainer is somewhat surprising, however.
Council members repeatedly lambasted the city’s lawyers last year over their misguided work on the mayor’s pay and vacation brouhaha, as well as the errant effort on the Langley Passage project that resulted in multiple lawsuit threats against the city.
When the council approved a one-year extension last year, the dog pile grew thick as city officials recalled their unhappiness over Langley Passage. Then-councilman Robert Gilman said better lawyers were available, and a majority of the council said they wanted other options for attorneys brought to them for consideration in 2011.
That never happened. Concerns over the city attorney continued through this year as attorney costs exploded and Langley overspent its budget on legal services by August.
The rates for the new agreement mirror those in the current contract that expires at the end of 2011. It sets an hourly rate of $160 for work on basic city attorney services, and the city attorney will be paid $170 an hour for special legal assistance.
Councilman Bob Waterman said he was satisfied with Weed’s work over the past year.
“I think he’s performed well,” Waterman said. “He’s done a very good job the last year for the city.”
“I see absolutely no red flags or reasons not to extend the contract,” he said.
Much of the city attorney’s work for Langley, though, has been done outside the direct review of the council. Council members have said they were caught unaware by the extent of the attorney’s work in recent years, and some have said they were not told about the age-discrimination lawsuit that was filed against Langley by a former public works employee in May, or the city’s first-ever whistleblower complaint that led to a wholesale restructuring of the city’s building department.
Council members contacted this week also said they knew nothing about the extensive lapse of oversight by the city attorney’s office on the review of city ordinances that occurred after Weed landed his Langley contract in 2008.
According to public records obtained by the South Whidbey Record, Weed failed to review as many as 15 ordinances that were sent to him for approval before they were sent to the city council.
The job of the city attorney includes reviewing ordinances and suggesting changes or improvements before that legislation is approved by the city council. In Langley, every ordinance includes a signature block at the end, where Weed vouches for each piece of legislation.
But for a period that may stretch for as long as a year, Weed said in an internal email he did not read the ordinances or related documents that were sent to him for review by the city clerk. The council subsequently passed more than a dozen ordinances in 2008 and 2009 — including the city’s 2009 Stormwater Comprehensive Plan, amended construction standards and revised sections of the city’s water regulations — that did not have legal review.
He later privately admitted the oversight, which was caught in May 2009, and retroactively signed off on the already-passed legislation in one fell swoop, according to city billing records. He also told some at city hall that more than half of the ordinances may have contained legal flaws.
The council later discovered two ordinances were seriously flawed, Ordinances 911 and 912, when controversy erupted over Mayor Paul Samuelson’s salary and use of vacation time. Council members later revised those ordinances — which made Samuelson one of the highest paid mayors in the state but classified him as a city employee who had to log 40 hours a week at city hall — after other attorneys told the city the ordinances were illegal.
Weed did not return repeated requests for comment this week. Multiple attempts to contact Samuelson were also unsuccessful.
Some on the council said this week they have not been told about the previous bumbles by the city attorney.
Councilman Hal Seligson, a member of the mayor’s finance committee, expressed surprise when told about the prior problems with Weed’s law firm.
Seligson also said the new contract had not been discussed at meetings of the finance committee.
“What has come up has been the costs associated with attorney services, but not the question of an actual contract or the seeking out of a new contract,” Seligson said.
Seligson was hesitant to talk about the new agreement, and said he had not seen it before he had been contacted by the newspaper Thursday. But he pointed out the concerns that he has consistently raised earlier: that the city council be given adequate time to review contracts, and that city hall undergo a more extensive outreach effort when hiring outside experts to work on behalf of the city.
“I cannot say whether I would vote to approve or not approve this contract today, but I certainly am hesitant absent real information about what kind of decision took place regarding this contract before it was presented seemingly automatically to the council within 30 days of its expiration,” Seligson said.
Seligson deferred to comment on the lack of legal work done on other legislation passed by the council.
He did, however, note that there had been times when he has not been happy with the work of the city attorney.
“I do have concerns over some of recommendations made by the city’s current law firm,” Seligson said.
“I was concerned that it was necessary for the city to have hired an outside attorney to deal with the Langley Passage issue, which wound up costing the taxpayers at least $15,000,” he said.
Seligson said he did not know why other options for legal services were not brought before the council, despite the council’s request last December.
It’s still a good idea, he said.
“I would prefer that the city do a search for attorney services — including Weed, Graafstra & Benson, Inc. — among those to be invited to participate in an open competition,” he said.
The city’s legal firm has been the subject of much controversy in recent years, kicked off by Ordinance 911 in October 2008 that raised the mayor’s salary to $21,000.
The very next month, the council passed Ordinance 912, which pushed the salary up to $31,000, and then to $51,513.
That ordinance, later discovered to have run afoul of state law, made the mayor a city employee with a salary and benefits equivalent to other city department heads. It also said the mayor needed to work an average of 40 hours each week.
Fast forward to April 2010. City Treasurer Debbie Mahler contacted the county prosecutor with worries that Samuelson had engaged in “improper actions.”
Mahler asked the prosecutor to investigate, and said the mayor had plans to collect full-time pay from the city while he was on vacation, and wanted his vacation time from 2009 to be treated as regular work days by the city.
Multiple attorneys at Weed’s law firm reviewed the vacation-salary issue, according to billing records obtained from the city, in early 2010.
But instead of fixing the problem — and declaring that Samuelson could not collect vacation pay — Langley’s attorneys said the mayor was still required to work a 40-hour work week, but should keep time sheets that logged his hours.
Mahler, worried that the time sheets would put the city on the hook for a large cash-out of Samuelson’s vacation pay once he was no longer mayor, sought advice from the county prosecutor and the Washington State Auditor’s Office.
There was other turmoil within city hall at the same time.
City hall employee Mary Jo McArdle was hounding the mayor to take action on a whistleblower report she had filed that seemed to be going nowhere.
McArdle said the city’s building official, who was working under a consultant contract for Langley, had been paid more than $259,000 even though permit activity had fallen off dramatically in recent years due to the bad economy.
City officials apparently ignored the required 30-day deadline to respond to McArdle’s whistleblower complaint. Under the advice of the city attorney, they later said, on Feb. 10 of last year, that her complaint didn’t constitute a “whistleblower complaint.”
The day before, according to emails obtained from the city, Langley’s attorneys and Samuelson had discussed ending McArdle’s employment with the city.
Mahler was also on the firing line.
Attorney billing records and emails show Langley’s attorneys amassed thousands of dollars in fees on “personnel issues” in the months that followed, and the city’s lawyers contacted a Bellevue-based headhunting company that finds permanent and interim employees for local governments, and the attorneys also contacted people who had previously served as interim financial officers for cities.
The city’s attorney also sent Mahler’s employment file to a manager in the risk-management section of the agency that handles the city’s insurance, records show.
The involvement of Weed’s law firm on personnel issues at Langley City Hall grew even more in the months to follow, once Mahler’s concerns became public.
Attorneys for the city went into high gear, with Weed offering Samuelson advice on how to talk to the press about the controversy, and the city’s lawyers again looking at the ordinances the council had adopted that increased the mayor’s salary.
The problematic pay raise took months to sort out, and left some on the council irked over the work of the city’s legal eagles.
The relationship with the council became further strained over the law firm’s handling of appeals over Langley Passage, a new 20-home subdivision on the city’s northeastern end that was bitterly opposed by Edgecliff residents.
The developer of the project threatened to take the city to court after his attorneys told Langley officials they had failed to follow their own regulations on processing development appeals, and had given opponents of the new neighborhood too many chances to challenge the project.
The city council, after initially rejecting the project, eventually reversed course and approved Langley Passage after an outside attorney was brought in to handle the case.
Concerns also arose when fees continued to escalate.
The city spent $60,205 on attorney fees in 2010, the most since $51,595 was spent in 2006 and more than double the previous high of $29,998 in 2004. (Legal fees topped $51,000 in 2006 largely due to the lawsuit over Fairgrounds Road.)
Attorney costs will also be over budget this year. Langley had expected to spend $35,000 this year, but legal fees topped $46,000 by September.
The public has never gotten a full accounting of how the money has been spent, despite repeated attempts by the Record to gain access to complete billing records.
Weed’s office has declined to release unaltered records that would show how city funds are being spent on legal fees, citing attorney-client privilege or other reasons.
The law firm has been equally unwilling to provide other public records on work that Weed, Graafstra & Benson, Inc. has done for the city, and, at times, has refused to release draft ordinances, meeting notes — and even records that have been cleared for public release by a vote of the city council.
At the close of one public records request, the law firm issued a document that mentioned all the records that would not be released in their original and full form to the newspaper. That document detailing records to remain secret consumed 39 pages.
Given the council’s concerns late last year, Weed spent a part of this year building a stronger relationship with city officials.
He met with elected officials repeatedly in informal workshop sessions earlier this year, and at one, expressed some regret that the firm had not done a better job on the mayor’s salary issue, though he wrongly characterized the issue as one that had predated his hiring as the city attorney.
“That preceded me and our office as the city attorney,” Weed told the council. “And then some questions got raised and we started down the path of trying to respond to one specific issue without looking at the entire ordinance scheme. And while we tried to fix one specific issue, there were others that were raised later. It became a series of events that really could have been and should have been handled better and differently.”
“That was an issue I wish we could have a do-over on,” he said.