LEGAL REVIEW COMMITTEE 2008:

League monitor to be at Board of Selectmen June 19, 2008 to particularly listen for this item:

"Discussion about the proposed conclusions and recommendations from the Legal Review Committee- Legal Review Committee-Dennis Tracey" and the main points were, as League Monitor heard it:

FORUM REPORTS
After legal review: 'Verdict' favorable for town attorneys      
Weston FORUM
Written by Patricia Gay   
Wednesday, 25 June 2008 11:44

The town of Weston is being well served by its legal counsel — G. Kenneth Bernhard and Patricia Sullivan, attorneys with Cohen and Wolf.

That is what Dennis Tracey, chairman of the Select Committee on Legal Review, reported to the Board of Selectmen on Thursday, June 19.  Winding up a six-month study and investigation, the committee gave its findings verbally to the board and said a written report would follow shortly.

In January, First Selectman Woody Bliss and Selectman Gayle Weinstein appointed the seven-member ad-hoc committee to review the performance of the town’s legal counsel, and make a recommendation as to whether the town should solicit proposals from other law firms.

Over the course of the next six months, the committee reviewed extensive documentation, cases, contracts, bills and billing statements, and information from towns comparable to Weston. It also interviewed 20 witnesses, and received written input from the public and through testimony at a public hearing.

First rate

Mr. Tracey said it was the committee’s finding that in terms of overall quality, town counsel’s representation of Weston has been “first rate.”

“Throughout their tenure, they have been responsive to the town’s boards and commissions. They have been flexible and practical and have done the job right,” Mr. Tracey said.

In addition to good performance, the firm’s fees, hourly rates, and retainer are in line with those in other towns, Mr. Tracey said. He noted the firm has even gone so far as to make things less expensive for the town by utilizing the services of state agencies whenever possible.

Cohen and Wolf was appointed as the town’s legal counsel in 2000. Mr. Bernhard represents the town in general matters, and Ms. Sullivan represents the town in land use matters.  In the current fiscal year, ending July 1, the town is paying Cohen and Wolf an annual retainer of $85,300, which covers general advice and office hours one day at week at town hall.  The firm receives additional money from the town’s litigation account and from parties that pay the town’s attorneys fees on matters.

According to Mr. Bernhard, the firm received approximately $228,070 from the town of Weston for calendar year 2005, $277,946 in 2006, and $309,000 in 2007.

Mr. Bernhard said he charges the town the rate of $200 an hour, half his usual billing rate.

Periodic review

As to whether the town should solicit proposals from other firms, Mr. Tracey said it makes sense to review the relationship with town counsel periodically to make sure it is effective, and possibly obtain bids or requests for proposals every three years. He recommended a special committee be formed to help the selectmen with that process.

The legal review committee also looked into whether the town should consider hiring an in-house attorney, dedicated to the town.

Mr. Tracey said the committee did not believe an in-house attorney would be in the best interest of Weston. “An in-house attorney works better for much bigger towns. A single, in-house attorney could not duplicate what the law firm does. Cohen and Wolf has a variety of attorneys. There would also be an increase in cost and some duplication with an in-house attorney,” Mr. Tracey said.

Faults

Although the committee found no faults with town counsel’s performance, it did have some issues with how town officials utilize town counsel’s services.  Mr. Tracey said the town attorneys could become more like “risk managers” if officials called on the attorneys earlier in a matter rather than later.

As an example, Mr. Tracey cited an incident involving a bidding package that town counsel was not brought in on until the bid went out. In addition, the contracts were not reviewed by counsel before they were signed.  There could be better coordination with the legal representation of boards and commissions and greater review and control over town counsel’s billings, Mr. Tracey said.

Committee member David Fleming discussed several other issues of concern and offered the committee’s recommendations:

• Some boards have the right to use their own counsel, but the Board of Selectmen controls the finances. All engagements of outside counsel should be reviewed first by the town attorney, and then submitted to the selectmen for approval.

• Every invoice from town counsel should be signed off by the board or commission that ordered the work.

• If litigation is festering and the town knows it will exceed the budget, the town administrator should keep the town attorney apprised of the budget.

• The town attorney should give regular quarterly status reports to the selectmen.

• All new contracts of $10,000 or more should be signed off by the town attorney. Any changes made to a contract should be reviewed by the town attorney. (Mr. Fleming said there were instances when contracts were modified but the parties did not discuss the legal implications with the town attorney.)

• Having the town attorney come to town hall on Wednesdays for office hours is helpful, but not everyone can make it during that time. There should be some alternate office hours.

• The town attorney should review the minutes of all boards and commissions on a regular basis.

• If the town attorney recommends advice and a board decides not to follow it, the board’s decision could be overridden by the Board of Selectmen.

• The town should maintain permanent records of all legal proceedings.

Delighted

After the meeting, Mr. Bernhard said he was delighted with the committee’s report. “After an exhaustive investigation, an impartial and extremely qualified citizens group has concluded that the services provided by my firm, my partner Pat Sullivan, and me are first-rate. We take a lot of pride in the hard work we provide to our clients. It is quite flattering to have someone agree that we give good legal services for good value,” he said.

Mr. Bliss said the town has been well served by Cohen and Wolf and admonished critics who spoke out against them at public meetings.

“I’m not surprised that the negative comments that came from a few residents were made by those who sued the town and lost those cases,” he said.

Ms. Weinstein said the review put an end to issues that had been floating around town. “I am hopeful that the Board of Selectmen can take the recommendations of the committee and create a better system of checks and balances to facilitate communication between our boards and our town attorney,” she said.

The next step, Ms. Weinstein said, will be to review the committee’s final written report. She said she is satisfied with town counsel’s reappointment.

Mr. Bliss and Ms. Weinstein thanked the committee for their hard work and diligence. “They did a good job,” Ms. Weinstein said.

Mr. Tracey said he is grateful to the members of the committee who did their best to work hard without political agendas.

The committee will prepare a publicly available report within the next week. It will disband on June 30.

In addition to Mr. Tracey and Mr. Fleming, other members of the Select Committee on Legal Review include Lincoln Briggs, Elayne Robertson Demby, Steven Ezzes, Douglas Olin, and Keith Watanabe.

Legal review public hearing:  Panel hears debate about Weston's town counsel
Weston FORUM
by Patricia Gay
Apr 2, 2008

There was some support but also some criticism leveled at town counsel during a public hearing held by the Select Committee on Legal Review, Thursday, March 27.  The committee is charged with analyzing the performance of the town’s law firm, Cohen and Wolf, which includes town counsel Ken Bernhard and assistant town counsel Patricia Sullivan.  As part of its review process, the committee solicited public input.

Several weeks ago, it asked for written statements from Westonites. On Thursday, members of the public were given a chance to verbally express their concerns, offer support, or ask questions.  The hearing was presided over by the seven-member committee and its chairman, Dennis Tracey.  Each speaker was allowed to have the floor for 10 minutes to bring forward issues or make comments concerning town counsel.

Contract

Henry Roehr of September Lane, who has experience in the construction business, said he had concerns with the manner in which a town contract was written and administered.  In particular, he had questions about the contract the town had with M.J. Losito Electrical Contractors of Bethel. Losito was the electrical contractor for the Weston Intermediate School construction project.  When the project was completed, Losito filed a $783,032 lawsuit against the town, claiming it was owed additional money because of delays and work order changes.

At the outset, Tom Landry, town administrator, said the lawsuit was without merit based on a review by O&G Industries, the project’s construction manager.  However, the town eventually settled the lawsuit with Losito for $125,000. Mr. Landry said that after again reviewing the claim, there appeared to be some merit so the town settled.  Mr. Roehr’s complaint is that there was not an arbitration clause in the Losito contract, and had there been one, he believes Losito would not have been able to sue the town, and would have had to seek arbitration rather than drag the town through a battle in the courts.

Mr. Roehr asked why the town attorney did not include an arbitration clause, which he said is standard in construction contracts. He wondered if there was financial gain for the town attorney to go to court rather than arbitration.

Response

Richard Wolf of Homewood Lane offered his response to some of Mr. Roehr’s questions.  Mr. Wolf explained he was the ex-chairman of the School Building Committee at the time the intermediate school
was built, and he remembered the Losito contract.

“It was five years ago, and I don’t remember all the exact details,” Mr. Wolf said.

Mr. Wolf said he does remember that the arbitration clause was stricken by a decision of the School Building Committee, not the town attorney.

“We decided to strike the arbitration clause for the prime contractors, but the clause stayed in the professional contracts. At least, that is my recollection,” Mr. Wolf said.

He said the School Building Committee made the decision it believed was in the best interest of the town.

“Cohen and Wolf doesn’t run the show. They give us the facts to make decisions. In the end, those were our decisions,” he said.

He also said it was the School Building Committee — not town counsel — that decided how to settle Losito.

“Cohen and Wolf has provided very responsible assistance,” Mr. Wolf said.

Conflicts

Jim Maggio of High Noon Road spoke at the hearing and said one of his chief issues was the appearance of conflicts of interest the town attorneys have had on some cases.  He said he believes Mr. Bernhard had a conflict of interest regarding land use issues the town had with the development of Martin Road, because in 1993, Mr. Bernhard had legally represented the Martin family.

He also clamed there was once a conflict of interest in a land use matter involving Revson Field because the husband of Ms. Sullivan, assistant town counsel, once represented the Collins family, a neighbor of the Revson property.

In other concerns, Dr. Maggio claimed Morehouse Field was built without proper permits, sidestepping Planning and Zoning regulations.

He further criticized the latest problems with glass found in the topsoil at Revson Field and said the contract for the purchase of the topsoil should have been overseen by the town attorney. Mr. Tracey reminded Dr. Maggio that the committee had Dr. Maggio’s comments and concerns in writing, so he did not have to reiterate issues that were included in those documents.

In summation, Dr. Maggio said in his opinion, the town spent too much time with litigation and going to court.

When Dr. Maggio finished, Don Saltzman, chairman of the Planning and Zoning Commission, said he wanted to refute some of Dr. Maggio’s assertions.

However, Mr. Tracey said the committee could meet with Mr. Saltzman at another time in executive session under the attorney client privilege waiver. This priviledge exists because town counsel also reprents the Planning and Zoning Commission in certain matters.

Effective

With a different take on the performance of town counsel, Bob Turner, the town’s Code Enforcement Officer, who recently announced his retirement, said his relationship with town attorneys Ken Bernhard and Pat Sullivan was “convenient and effective.”

He said he made good use of the weekly office hour sessions town counsel provided.

“We sometimes cover three, four, or five subjects at one time,” Mr. Turner said.

Mr. Turner said he also appreciated how town counsel didn’t give him “instructions,” but gave him “advice” instead.

He also said in two times that he had to appear in court for the town, the town attorneys gave him proper support.  The committee asked Mr. Turner if he thought the town would be better served with a full-time attorney. Mr. Turner said he did not think it would be, because “there would not be enough work there” for one attorney.  When all members of the public had a chance to comment, the hearing was brought to a close.

After the meeting, Mr. Tracey said the committee will now move on to reviewing individual cases and contracts.

The committee’s regularly scheduled meeting dates are April 10, April 24, May 8, May 22, June 5, and June 19.  It may also hold special meetings as needed.

The selectmen have asked the committee to complete its review by June 30.