Questions regarding city attorney remain unanswered

By Chelsea Maude Avirett | Jul 28, 2016

One question left unanswered at the end of budget season is whether the City Council will maintain an in-house, full-time attorney or outsource legal work.

It is unfortunate that council decided to have the conversation this year, given the discord from which it originated, as well as council’s belated reply to that situation. But the question is now on the table and is more pressing as the city attorney has given his notice.

The conversation so far has centered largely around anecdotes and fear. The anecdotes are used to argue that towns always save money by outsourcing legal services, especially here in Maine because the Maine Municipal Association provides legal advice. The fear reflects citizens' concerns that the city might be sued or council’s concerns that the city will not be able to fund city planning services (which council hopes to fund from savings achieved by outsourcing legal services).

Council made the right decision to leave enough money in the budget to fully vet the decision, rather than rushing the decision during budget season (as was done for last year’s Recreation Department transfer). Now it’s time to gather hard data to make the decision wisely.

Unsurprisingly, Rockland is not the first municipality to consider outsourcing legal services. Other cities weigh the same fiscal and qualitative questions Rockland is asking. The fiscal question appears fairly straightforward and easy to answer: does outsourcing save a city money or not? The qualitative question is more difficult: is it better to have the convenience of real-time legal advice available to staff and committees, or is it better to outsource to local law firms which have lawyers who specialize in various issues that come up in a municipality?

What’s interesting about these questions is that the example from other municipalities is not sufficient to help us answer the question for ourselves. Comparisons fail us utterly. The answer rests entirely in understanding local conditions and goals.

Larger cities have commissioned audits to evaluate the fiscal questions and many have gone back-and-forth over the years, alternately hiring in-house counsel and then deciding to outsource. The financial savings appear to be difficult to predict, precisely because they are locally specific.

The costs aren’t difficult to measure, however, and City Council should prepare for the discussion with data, asking the current city attorney and the Finance Department to do an internal audit of the costs for various types of work that the city attorney does: attending meetings, drafting ordinances, preparing liens, advising staff and so forth.

Then City Council will have a concrete number to estimate what outsourcing costs would be if the tasks were similar in future years. This means council can say with confidence, if we had outsourced this task last year, it would have cost this specific amount of money, plus this amount of staff time.

City Council should also ask staff to collect legal expenses from towns comparable to Rockland in size and activity so that the local data is not interpreted in a vacuum or through rose-colored glasses. This should include obtaining a clearer understanding of how Maine towns use MMA’s legal services, which are clearly advisory, so would still need further legal review.

Some municipalities find that estimating costs clearly points in one direction or another. Many don’t. In Rockland, it’s currently unclear whether this decision will lead to significant savings or even modest ones, because the numbers haven’t been vetted.

Regardless, the question should not be evaluated strictly in monetary terms. It’s also important to consider local concerns about risk: does council prefer to take the more conservative approach of having (largely) fixed and known costs, or a more risky approach in which costs are uncertain and likely to fluctuate — significantly in the case of a lawsuit against the city?

The conversation about outsourcing the attorney has so far discussed the benefits of having a access to wider expertise than any one attorney could master. The conversation also should shift to a larger question about planning — not necessarily the city planning that council wants to find funding for, but general goal-setting practices by City Council.

What legal specialties does the city currently lack? What specific benefits would accrue if the city contracted with legal firms to provide those? Is the solution to reorganize how the city uses its internal legal department, allowing an attorney to focus on projects rather than being always available to staff, or is it obtaining access to a deeper legal bench so the city could be more nimble?

Ultimately, having access to that deep legal bench is useless if the city uses legal in the same ways that it currently does, in particular assigning tasks that don’t fully use the attorney’s unique specialties. Regardless of whether City Council maintains a full- or even part-time attorney, the position has to be given effective guidance, which requires more specific policy and goal- setting on the part of council.

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