New Jersey’s
Attorney General is paid $141,000 for his full time job
supervising a department comprised of more than 600 attorneys and 8,000 total
employees. Lodi’s Borough Attorney Alan Spiniello is paid $150,000
for his part-time job with limited responsibilities. Actually, the 2013 introduced budget shows he
was paid $158,722.05 for 2012. Many of
the responsibilities that the public assumes would fall under his job description
are being outsourced to the political Florio firm and Archer and Greiner.
Lodi’s legal expenses are skyrocketing and the Lodi
taxpayers are not getting their money’s worth.
This council’s campaign contributors are cashing in big time by taking advantage
of Lodi not having a real
pay-to-play ordinance on the books.
Disclosure reports show that Alan Spiniello made a $2,600 campaign
contribution to the current Lodi council.
This year, the state added a new item to its “Best
Practices” checklist:
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Select
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Has the appropriate administrative
official reviewed the State Comptroller's June 25, 2013 Report with
respect to local government legal fees, and does your municipality follow the
best practices outlined in the checklist annexed as an Appendix to the
report?
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Below is the appendix of the State Comptroller’s June 25, 2013
Report. Lodi clearly does not meet the standards set forth. Just look at “Conducting a Competitive Procurement”
alone. Who is the qualified evaluation
committee? What scoring do they
use? How expansive was the pool of
candidates?
Lodi fails to meet
standards in all 4 areas: 1. Developing
Policies and Procedures, 2. Conducting a Competitive Procurement, 3. Using Formal Written Contracts with Legal
Counsel, and 4. Managing Legal Counsel
Contracts.
Appendix -- Best Practices
Checklist for Engaging and Managing Legal Counsel
The following checklist
provides guidance to local government units (LGUs) for engaging and managing
legal counsel. These best practices are divided into four categories: (1)
developing policies and procedures, (2) conducting a competitive procurement,
(3) drafting written contracts with legal counsel, and (4) managing legal
counsel contracts.
1. Developing Policies and
Procedures
Developing policies and
procedures regarding the procurement, use and management of legal counsel can
help reduce legal costs, ensure transparency and promote accountability.
Specifically, we highlight the following best practices:
Establish policies and
procedures for procuring legal counsel. Determine who is responsible for
developing the Request for Qualifications, what evaluative criteria will be
used, who will participate in the evaluation of the responses and how scoring
will be documented. Ensure that the procurement process complies with state and
local pay-to-play laws.
Develop clearly defined
job descriptions and job duties for in-house counsel. Ensure appropriate
supervision of those attorneys.
Determine who is
responsible for delegating work to outside counsel or determining whether work
should be performed in-house. Clearly distinguish between services that
should be provided by in-house counsel as opposed to those to be provided by
outside counsel.
Establish processes for
requesting legal advice. Determine who is authorized to contact outside
counsel to request legal advice and what internal documentation should be
maintained reflecting those contacts. School districts should further ensure
that their internal policies and procedures comply with the requirements of N.J.A.C.
6A:23A-5.2(a)(2).
Periodically review
operating practices to ensure that those practices are in compliance with stated
policies and procedures.
2. Conducting a Competitive
Procurement
The following best practices
for procuring legal services are designed to promote public confidence in the
public contracting process and ensure that LGUs are obtaining the most cost-effective
services:
Ensure the pool of
potential law firms or attorneys submitting proposals is as expansive as
possible. Broadly advertise legal services contracts on websites, in
newspapers and through other available media. Endeavor to secure proposals from
numerous law firms for each area of expertise sought.
Draft clear and
unambiguous solicitations. Solicitations for legal services should contain
a clear and unambiguous statement of the work to be performed by the attorney
or the area of law in which the attorney will be delegated work. The
solicitation should clearly distinguish which services, if any, will be covered
under a retainer and which services the attorney may bill for at an hourly
rate.
Judge proposals based on
pre-determined, merit-based criteria made known to vendors in the Request for
Proposals (RFP) or Request for Qualifications (RFQ). If certain criteria
are more important to the LGU than others, consider assigning different weights
to each criterion based on its relative importance. If the LGU uses an RFQ
process to establish a pool of pre-qualified law firms or attorneys to perform
services in a particular area of law, the LGU should specify in the RFQ how
work will be delegated among the attorneys in that pool. For example, the LGU
may select from the pool based on price quotations, on a rotating basis or
based on other evaluative criteria specified in advance by the LGU.
Establish a qualified
evaluation committee. Ensure that the members of the evaluation committee
are qualified to judge the strengths and weaknesses of the proposals. Carefully
screen potential committee members to ensure that they are impartial arbiters
in compliance with the Local Government Ethics Law, N.J.S.A. 40A:9-22.1
et seq., and the School Ethics Act, N.J.S.A.18A:12-21.
Use a scoring process
understandable to evaluators and vendors and maintain appropriate documentation.
Provide the criteria upon which proposals will be judged in writing to members
of the evaluation committee prior to judging the proposals to allow for fully
informed decision making. Members of the evaluation committee should provide
written comments explaining the score they give to each proposal. This ensures
a record of the decision-making process and a basis for review in the event of
a legal challenge. Document every step of the evaluative process.
3. Using Formal Written Contracts
with Legal Counsel
Contracts with outside legal
counsel should address, at a minimum, the following topics related to billing
and fee arrangements:
Scope of services/retainer
arrangement: The scope of work and the scope of the retainer should mirror
the scope of work and scope of retainer included in the RFP or RFQ. Ensure
there is no overlap between services to be covered by the retainer and those
that can be billed hourly.
Billing rate and terms:
Set forth the approved billing rates for attorneys for the term of the
contract.
Administrative work and
secretarial services: The contract should make clear that administrative
work and secretarial services may not be billed at an hourly rate.
Expenses and disbursements:
Pay only for actual expenses incurred. The contract should set forth which
expenses are reimbursable and should require itemized bills that detail
disbursements.
Billing for travel time:
Set forth whether travel time is billable and at what rate.
Staffing expectations:
Designate a primary contact person at the LGU for the law firm. Address
staffing expectations with regard to legal matters including conferences, court
appearances and external meetings.
Detailed billing invoices:
Ensure that billing invoices include: (1) matter name, (2) date of service,
(3) attorney’s name or identification number, (4) attorney’s hourly rate, (5)
total charge for each task or billing entry, (6) a detailed description of the
services provided or tasks performed and all individuals involved, (7) the
amount of time spent on each particular service or task, and (8) an itemized
list of any expenses or disbursements. Non-descriptive entries should not be
accepted.
Block billing: Require
individualized, separate billing entries for each task performed. Do not allow
block billing.
4. Managing Legal Counsel
Contracts
With proper management of legal
services contracts, LGUs can avoid excessive, unauthorized or fraudulent
charges and can improve the quality of the legal services they receive. The
following have been identified as best practices in this regard:
Designate one employee who
will have primary responsibility for reviewing the LGU’s legal bills. The
designated employee should conduct a detailed and thorough review of all legal
billing on a monthly basis to determine whether the billing complies with
contractual requirements and whether all entries are appropriate. For example,
the employee should confirm that all billing entries are individualized (i.e.,
not block billed) and sufficiently detailed, that the appropriate billing rate
has been applied, that expenses have been itemized and that the monthly charges
have been correctly calculated.
Periodically review the
structure of legal counsel arrangements to determine whether costs savings or
other improvements can be achieved.
If the LGU has established
a cap on legal services fees, the LGU should monitor those fees and ensure
compliance with the cap. If the cap must be exceeded, ensure there is
appropriate written authorization to do so.
