In recent months, some Tulare citizens have been questioning the transparency, or lack thereof, from the city directed by the city attorney, Heather Phillips, an attorney and partner with Goyette & Associates in the firm’s Labor and Employment Division, as well as her ability to serve as the city’s attorney.
As previously reported by the Valley Voice, on January 31 of this year Ben Brubaker filed a law suit in superior court, requesting, among other things, “For a declaration that the City has not complied with the January 16, 2018, Public Records Act (PRA) request, and that the requested documents should be produced forthwith.”
That request followed his PRA asking for a copy of the contract between the city and an unnamed investigator hired to investigate the city’s police chief, Wes Hensley, along with police Cpt. Fred Ynclan and Lt. Jerod Boatman, who were all placed on paid administrative leave last year. Per Sarah Tobais, another attorney who works for Goyette & Associates and serves as the city’s assistant attorney, the request was denied.
It can be noted that the Voice submitted a similar PRA for a copy of the contract, and was also denied.
It is up to the city’s attorney(s) to interpret the Brown Act as it deems appropriate; the public can, of course, dispute that interpretation. A court date for Brubaker’s case is set for Tuesday, June 12.
This is not the only issue questioning the city attorney’s competency to serve in a municipal legal position.
Rumors or facts?
“I have heard rumors, but have no actual facts,” said Shea Gowin, a former Tulare City Council member. Gowin also attends most council meetings, records them, and publishes live streams on her personal Facebook page.
“I have heard council members on the dais comment about things not getting done by the city attorney,” she added.
For example, the council learned of the Brubaker case not through city staff, but through the Voice’s report.
Councilman Jose Sigala has made various requests, including his own interest in just what the investigation into the police staff is costing the city. Another long-standing request by Sigala is for a “civility policy” for city council members.
Those requests, to date, remain unanswered.
Furthermore, several months back, Councilman David Macedo requested an evaluation of the city attorney. Items regarding evaluations of the city attorney and the city manager appeared on numerous agendas dating back to November, 2017 and August, 2017 respectively.
At the most recent city council meeting, on February 22, evaluations for both were again on the closed session agenda.
At that meeting, the city manager was told he could go home – he was not brought into closed session. Phillips, the city attorney, however, was asked into closed session. No outcome was reported following the closed session of the meeting.
Councilman Greg Nunley denies problems with the city attorney’s performance.
“I requested a report from every department, and city hall several weeks ago, asking what the city attorney was holding them up on – from all department heads, citywide. It was a short list.”
“There’s a group of people that may not like our city attorney and are making things up. She’s not holding anything up. There’s always something to do,” he said, “We all have to-do lists. That’s the 100% honest truth, I believe.
And, Joe [city manager], was on top of it and I got it [the report].”
One city lawsuit
Another issue is an almost year-long civil law suit by the city against Tulare Lodging Associations, an LLC doing business as Fairfield Inns and Suites, Mahendra Patel. Patel’s LLC formerly operated the Fairfield Inn and Suites, and is being sued for failure to report and pay more than one-half million dollars in city Transient Occupancy Tax from June, 2014 – September 30, 2016.
Filed by David Fike of Fike & Boranian on behalf of the city on March 6, 2017, the case was transferred shortly thereafter to Phillips.
The case has been dragging on despite numerous attempts at subpoenaing Tulare Lodging Associates, but there has been no entry of default nor proof of service to Patel.
Numerous case statement conferences have been called by Phillips, although she did not always participate. Monetary sanctions have been proposed against Phillips, by Judge Melinda Reed, who is overseeing the case, in the amounts of $250 and $500.
This case was last itemized on a closed session agenda on October 17, 2017.
The next request for Discovery in the matter is scheduled for March 2018 and is to include Production of Documents and Admissions, both by the City.
City Attorney contracts and costs
Unlike other department heads, the city attorney – like the city manager – is contracted by the city council. The Goyette & Associates contract was approved by council in a closed session meeting on June 6, 2017, with Phillips being the representative counselor, following the resignation of David Hale.
Terms of the agreement include a monthly base payment of $30,000 for general law, labor and litigation services, and Council had voted 4-1 for her approval.
The hiring of Phillips, and the firm, was sold to fellow council members as a one-stop-shop services-all by Mayor Carlton Jones, so the city would not need to hire other firms for other types of legal work, according to Sigala. Sigala said he had bought into that and voted to hire the firm.
The city is locked into paying $360,000 per year regardless of how much or how little the firm works for the city in the agreed facets of law. That is while the contract remains viable – it can, at any time, be terminated for any reason, or no reason, according to the contract. For legal work outside the realm of the specified general law, labor and litigation, the city pays $190/hr. for senior attorneys, $170/hr. for junior attorneys and $125/hr. for the work of paralegals and law clerks.
Phillips worked for the city in the months prior to the contract, being hired as an interim attorney, approved in a special closed session council meeting on March 31. She was first presented as staff attorney at a regular council meeting on April 4.
Hale and his partner, Martin Koczanowicz (who had previously resigned for personal reasons), served the city under a contract with Koczanowicz & Hale, with no monthly rate, but an hourly rate of $160/hr. for non-litigation services, and $190/hr. for lead attorney and $170/hr. for other attorneys involved in a litigation case.
In comparison to other Tulare County city attorney fees and agreements the $30,000 may seem a bit high, especially for an attorney with no previous municipal experience.
In Porterville, a city just slightly smaller in population with an estimated 59,000 residents versus Tulare’s estimated 63,000, the contract with McCormick, Kabot, Jenner & Lew, with Julia Lew being the city attorney, does not have a set monthly rate, but rather an hourly rate of $170/hr. for attorney work and $75/hr. for work performed by law clerks or paralegals. For the fiscal year of July 2016 to June 2017, Porterville spent just under $190,000 in legal fees. That firm has decades of serving in municipal capacities, having long-served Exeter, as well.
Visalia, nearly double the size of Tulare, has two law firms on contract with the city. A contract with Peltzer & Richardson for basic city attorney services is signed at $42,000/month for a long list of services, with a $160/hr. rate for special services. Herr, Pedersen & Berglund are contracted to handle Personnel & Employment services at $6,000/month and $160/hr. for attorney time; $110/hr. for paralegal services involving litigation matters.
Another sign of a lack of transparency?
Since signing of the formal contract, Goyette & Associates has billed the city on a monthly basis its flat fee of $30,000.
There has been no delineation of hours spent, which department work has been performed for, nor by which attorney work has been performed. Copies of these billings were obtained by the Voice through a PRA request on February 8.
The invoices for November, 2017 through February, 2018 were not stamped with approval to pay by the city manager, as previous invoices had been.
As of February 8, they had not been paid.
Having received information the city may have recently received itemized billings in response to city requests, the Voice submitted a second PRA as on February 22.
It has not yet received an answer; the city does have 10 days to comply. It is also not known whether payment on those previously unpaid invoices has been made.
Potential Civility Code
Councilman Sigala has repeatedly asked other council members to support a civility policy regarding their interactions with and toward other citizens within the community. He has also asked for the city attorney and manager to work on the issue.
“Currently there is a policy for in the work place,” he said, “but, should we be accountable [for actions] with the general public? I feel strongly, we need to set a good example and hold ourselves accountable.”
According to the city manager and attorney, they are working on it, he added. He wants to see it on the agenda, and soon.
One example of a lack of civility might be a comment by Mayor Jones to Gowin and a few others patiently waiting for the end of the closed session meeting on February 22.
Gowin said she wanted to wait and hear if there was any closed session report. There wasn’t.
“There’s nothing to report. Now all you bad news clowns can just leave,” Jones said, according to Gowin and a video recording of the event.
“He really said that,” Gowin verified, and added that at least three other people heard it as well.
Perhaps, this falls under the already in place workplace policy, rather than a civility or conduct code of the future.
Sigala said he didn’t hear it at the time, but admitted the video recording does verify it.
“It’s embarrassing,” he said.
Sigala would also like to see a reorganization of the council placed on the city council agenda as soon as possible, he said. The mayor is appointed by council to a two-year term. Jones was appointed in late 2016. Sigala is not sure he should fulfill the whole term.
Individuals have called out the mayor’s actions and posts on social media with accusations of being argumentative with, bullying and demeaning citizens.
“Either we confirm his leadership, or we don’t,” Sigala said.
“I understand this council has its problems” Nunley said, commenting that any group does.
Nunley is not active in social media, he said, commenting that it doesn’t seem proper.
“I understand that some of us shouldn’t be on social media,” he said.
“Everyone in Tulare needs to work together – we need to support council, the city and staff,” he added. “There will always be differing opinions.”
Mayor Jones hung up on this reporter when trying to reach him for comment. A pattern of this is emerging, as it has happened before.
“Mayor Jones, this is Nancy with the Valley Voice, please don’t hang up.”
He did.
A second call was placed to him, and a message left on voicemail asking for comment. He has not responded. As of February 24, neither Vice Mayor Maritsa Castellanoz nor Councilman Macedo have responded for comment.