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City attorney contract in limbo

The acting city attorney is exercising an “abundance of caution” in regards to two open meeting law violation complaints and has not yet moved ahead in negotiating his full-time contract, which is costing the city tens of thousands of dollars.

Since being appointed city attorney in a divided vote by the City Council on Sept. 26, Steve Morris has continued to work under the terms of his independent contractor agreement and is earning a minimum of 15 hours per week at his billable rate of $325 per hour.

After Morris’ appointment, the Nevada attorney general’s office said it had received a number of related complaints in regards to the mayor, the City Council, city officials and the Sept. 20 meeting during which city attorney candidates were interviewed. Boulder City resident Ainsworth Hunt filed one after the Sept. 20 meeting, and resident Neal Siniakin filed one Oct. 13 about the Sept. 20 and 26 meetings.

According to Morris, at least two of the complaints referenced NRS 241.036, which states that any action of any public body taken in violation of any provision of that chapter is void, and those complaints are what is holding up his full-time contract.

“It’s not that they’re preventing. It’s more of just being prudent in how we proceed because if we proceeded with my contract with those complaints outstanding, then there’s still an open issue there, and it would likely be that those … citizens that have filed these complaints could say, ‘Wait a sec. This contract is premature because we have a complaint with the attorney seeking to void this decision,’” he said.

While the complaints seem to be stalling negotiations, the city also isn’t rushing the process, allowing a third party to work with Morris to create a contract proposal.

“I’m not sure it’s true that there hasn’t been any progress, but the complaints attacking the city attorney selection process could very well be at least one reason why a contract hasn’t been finalized for presentation to City Council yet. … We directed staff to engage a neutral third party consultant to handle those negotiations, in part, at least, so that individual council members wouldn’t be accused of bias or involved in the process in any way,” Woodbury said. “I haven’t been included in the negotiation process at all, nor, to my knowledge, has any other council member. And that’s the way we intended it. When the consultant and Mr. Morris have completed the process and deem a contract ready for council action, I’m sure they’ll let us know. I’m as anxious as anyone to get that behind us.”

Return to the council

If the attorney general’s office determines that the open meeting law was violated and the council’s decision is declared void, then any determination by the city would have to be redone, put back on an agenda for consideration and voted on, Morris said.

Woodbury said that the meetings’ actions being declared null and void and having to start over are “worst-case-scenario hypotheticals” and what happens depends on the scope of the ruling by the attorney general.

“We wouldn’t know until we saw it,” he said. “And even then we’d probably need legal advice on what our options were going forward. The City Council, with staff’s assistance, would then have to collectively decide what to do next based on the information available.”

Morris said it was his choice as acting city attorney to wait for the attorney general’s determination on the complaints, and he expects the determination to be made soon and his contract to be considered in January.

Monica Moazez, spokeswoman for the attorney general’s office, said the agency could not comment on pending open meeting law investigations.

As for contract negotiations, Morris said the wait is not because of the salary he’s requesting. He also said it’s not true that he’s requesting a yearly salary of $260,000, a rumor he said he has heard.

“Well I haven’t asked for anything yet … so that’s not an issue. … That’s simply not true,” he said.

Morris’ original contract, signed in October 2012, states that he is to be paid a fixed yearly fee of $40,000 for at least five hours of work on Wednesdays from 1 to 6 p.m. and that he would primarily be involved with contract review and litigation. Because of his background as a litigator, however, he may also “be called upon from time to time to assist the city attorney with current ongoing litigation issues.”

Hourly rate

For any of those services outside of his five hours of work, the city would pay Morris his hourly rate. According to Morris, that rate has ranged from $300 to $325 from 2014 to 2017. Currently, it is $325 per hour.

According to city records, Morris was paid $564,676.36 in the three-year period between July 2014 and July 2017, which is approximately $444,000 more than the $120,000 he would have made in three years at his annual fixed rate.

Morris said the excess amount is for his work with litigation issues for the city, per his contract. He also was reimbursed for $15,000 in expenses associated with that litigation.

“I have been retained by the city in at least twelve separate matters in excess of my weekly obligation of 5 hours at reduced rates since the contract was approved back in 2012,” he wrote in an email. “At least two of these additional matters were higher exposure litigation that required substantial time and resources in preparing for trial. Both matters were resolved on the eve of trial or adjudication. Therefore, the additional payments … pertain to legal services for matters outside of the lump sum of $40,000 per year, and they include billable hours and expenses incurred in the representation of the city.”

Morris said that in most of these matters, the city was being sued, including the case filed by six residents who say they were wrongfully sued by the city for circulating ballot initiatives and a case involving Wells Cargo, one of the lead contractors for the Nevada Way reconstruction project. He also handled matters that fell outside the jurisdiction of the city’s insurance company.

Morris was appointed acting city attorney at the June 28 council meeting to replace former City Attorney Dave Olsen, who retired June 30.

Olsen was paid $196,393 in salary and benefits for 2016, according to Transparent Nevada.

Old contract terms

A new contract for Morris to adjust his hours and salary as acting city attorney was to be considered by the City Council in July, City Clerk Lorene Krumm said shortly after his appointment. However, that item was removed from the July 11 meeting agenda and never brought back.

Morris said he currently works at least 20 hours a week for the city, which includes his contracted five hours. The additional 15 hours pay him $4,875 per week at his billable rate of $325 per hour.

Woodbury said he hoped to eliminate the independent contractor position for which Morris was originally hired. By doing away with the position, the city could reassess whether it was needed, he added.

“I can’t yet say whether that will actually happen, since my understanding is that Mr. Morris’ contract negotiations are still a work in progress,” he said. “But that’s my hope.”

Morris said he thought the mayor meant eliminating the $40,000-a-year position to do at least five hours of civil work on Wednesday afternoons.

“I think it’s doable because I’ve been doing it as acting city attorney,” he said.

Outside counsel

He did not think it pertained to the work he did outside those hours.

“It’s not outside professional services because that’s always been a component of the city attorney’s office, and that’s unlikely to ever go away because there simply are matters where you do have to hire outside professionals to deal with those,” he said. “Any municipality deals with that.”

If the position is eliminated, the city would still have the option to hire outside counsel as needed.

Morris said it would be a case-by-case analysis of what the city attorney’s office could do in-house without stretching resources too much.

Morris was forwarded requests to the acting city manager and acting finance director for comment about his work for the city, payments to him and where the funds paid to him came from, and it was Morris who answered those requests.

Contact reporter Celia Shortt Goodyear at cgoodyear@bouldercityreview.com or at 702-586-9401. Follow her on Twitter @csgoodyear.

Different contract for prosecutor

Assistant City Prosecutor Gary Booker is also an independent contractor with the city, but his contract is different. Per the contract, signed in 2005, he is to be paid $36,000 each year for the “sole and limited capacity of assistant prosecutor in the Boulder City Municipal Court, in matters involving citations and arrests for violations of city ordinances and misdemeanor violations of city and state law that are alleged to have occurred within the corporate limits of the city.”

He is to devote a minimum of 32 hours per month to the performance of those services and agrees to the fulfill those services on city premises from 3-6 p.m. Tuesdays, and from 8 am. to noon Thursdays “each and every week” the agreement is valid. His contract is considered month-to-month, and the salary is open for renegotiation in April of each year.

According to the city, Booker has been paid $148,750 for his work for the city from July 15, 2014, to Oct. 31, 2017.

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