Revised: This article was rewritten on 7/19 and removed from the earlier post on a request for increased attorney's fees.
I just posted an article about weak cost justification data for increasing the hourly rate of an outside law firm used by the Lake County County Counsel.
That situation provides a good reason to review the public track record of the Lake County legal department from a business and business contract viewpoint. This issue has been bouncing around in my head for weeks.
I have audited contracts up to $600-million in size, and have learned a thing or two about preventing contract disputes. It seems that the County Counsel department needs to beef up their skills in writing business contracts.
This is about the County Counsel's department...
within the Lake County Board's office. The current interim County Manager is Sandy Minkoff, who was the head County Counsel until he took that position. The current interim County Counsel is Melanie Marsh. So far, we have been told that once the County hired a County Manager, Minkoff (who has said he does not want the County Manager position permanently) will return to his prior position, and so will Marsh.Most of the duties of the legal staff at the County appear to me to be zoning, regulatory and administrative law.
Their attorneys are usually required at any public meeting, including appointed commissions. They are also significantly involved in zoning issues, writing proposed ordinances & resolutions (anything with multiple "whereas" statements, it seems) such as the recent comp plan.
This commentary is not about the above tasks, which I assume are the strengths of the legal department.But, I have noted a trend of problems related to written contracts and businesslike terms for them.
The Lake County Counsel's department is the one that:
- Did not ensure proper contract administration procedures were established so as to ensure that $1.2-million in annual maintenance costs for the Motorola radio system were rolled into the annual budget when the fees became due. Thus the Board is right now trying to figure where to get the $1.2-million to pay for the maintenance that is now due because no one made sure it was added into the current year's budget. Most law offices I have worked with in corporations have tickler systems to make sure that no contract required actions are forgotten, but apparently that is not the case in the County Counsel's office. They could say that the project manager should have tracked the expenses, but why isn't contract administration done centrally, and why didn't the legal office make sure the contract provisions were being actually managed by someone?
- Approved the
contract for the judicial center that used vague terminology for how construction
service change orders were to be processed. By not ensuring a specific
process was defined for change orders, a rogue manager was able to
require an architectural firm to provide over $600,000 in services that
were not approved by the Board, and resulted in a public dispute over
whether to pay the funds.
The contract only said that
change orders should be in writing, but did not define a specific
process (such as in an appendix section), so the architecture firm
performed various tasks and relied on an email from the rogue manager
(no longer at the County), and did not know the Board must approve such
expenditures. I was amazed at the Board meeting where this was
discussed that Interim County Counsel Melanie Marsh said the meaning of
the vague term "in writing" would have to be decided in a court battle,
if it came to that. That tells you there should have been a more
specific definition of the process in the contract. The old way of
legal thinking is to write vague terms, then let them get defined in a
court battle. The new way of thinking in contract writing (hint, hint)
is to actually define processes and terms so they are clear cut and
prevent future litigation. My suggestion is to get the County
Controller to define the terms and include them in an appendix. BUT
WAIT, there is NO County Controller for BCC operations. Their
accounting is done in the County Clerk's office and that department does
NOT exercise any controllership duties over BCC programs (I asked).
- Allowed the Niagara lawsuit to run up legal fees when the possibility of winning the case or recovering legal fees was questionable. Is there a policy to prevent unsound lawsuits just because some County Commissioners wants to make a point? If not, we need one. Is the legal department bound to act in the taxpayers interest by some policy, or only do what the Commissioners want without public disclosure of the cost?
- Writes employment contracts, such as the one with former County Manager Cindy Hall, that gave out significant severance payments without any alternative to firing. In the case of employment contracts, they shouldn't just have severance payments, but only allow severance after required mediation. For instance, there is a pattern of new, elected officials in Lake County pressuring and then firing highly paid administrators and paying high severance costs with taxpayer funds without any type of mediation. To prevent waste of taxpayer money on severance pay due to emotional decisions by elected officials, shouldn't there be a mandatory mediation or arbitration process to PREVENT elected officials from firing staff without public input and common sense? (Examples are all around us - not only at the County, but Lady Lake and other city administrators being fired due to emotional decisions by elected officials.). There need to be policies to ensure that elected officials cannot incur major severance costs to taxpayers without at least public input, or formally defined mediation processes with affected staff.
- Approved a $300,000 contract for the Metro Orlando Economic Development Commission which had hardly ANY defined deliverables or performance measurements for the funds. That is as bad as the law establishing the North Lake County Hospital District, which also doesn't have ANY accountability standards, performance metrics, or even audit rights clauses. Why would the County Counsel allow processing of ANY agreement without specific performance requirements? Aren't there professional guidelines that might require some sense of accountability in any consulting agreement?
Summary
Based upon the above, and my observations, I tend to think that the County Counsel may have good skills in administrative, regulatory and zoning law, but they don't have much business sense or skills in writing sound business contracts. They may say that the above situations are not their responsibility, that their job is only to review contracts for "legality", but shouldn't they take a holistic approach to preventing situations like the above, and understand how to write tougher business contracts?
And, based on the list of contract related problems I listed above, the County Counsel needs to hire an experienced business contract person who THINKS from a business standpoint, instead of only administrative, regulatory and property law attorneys. I have not reviewed the backgrounds of the current legal staff, but the above results indicate there isn't anyone with a businesslike mind involved in contract writing. I might suggest finding one that has an MBA plus a law degree, and heavy specialty in business and business contracts. If that is not done, I suspect we will continue to see contract related fiscal fiascos for years to come.
There is a big difference between knowing the "legality" of contract law, and writing good contracts that prevent business disputes.
vj
