Town legal company changes, but not lawyer
A short-term change in legal services for the Town of Fort Myers Beach was made Thursday evening, but the municipality retained its lead lawyer. The action came after the first of two public hearings to set a budget for the upcoming fiscal year.
During its regularly scheduled meeting, the Fort Myers Beach Town Council unanimously approved to enter a professional legal services agreement on an interim basis with Gray Robinson, P.A. under a monthly retainer of $7,500 and an hourly rate for services outside the retainer. Attorney Derek Rooney, who had been the lead legal representative under Fowler White Boggs for the Town prior to his resignation and subsequent hiring at Gray Robinson, P.A., will continue to represent the Town after a week’s absence during switch in companies. Conditions are under terminable at-will.
Town officials are expected to review the municipality’s legal situation in the near future.
“I would like to take an overall look at how we do legal services in 2015 and, basically, we need someone right now to get us to 2015,” said Councilwoman Rexann Hosafros. “It looks like we are switching, but we are actually staying the same. I think continuity while we are studying what we do in 2015 might be the way to go.”
Councilman Alan Mandel agreed with the continuity issue.
“I think one of the major issues for this town over the years has been the number of town managers and town attorneys,” he said. “Every time we make a change, we really lose history and knowledge. Continuity does have a benefit.”
Rooney, who offered Council three options -including one that focused on strictly an hourly rate and another that adopted all the scope and services that the Fowler White Boggs contract contained- will work under the third option, which is a mixed retainer policy that includes a slightly lower hourly rate for outside services than the previous firm. That third option involves him to cover a finite number of meetings, offer availability to Town staff and include an unlimited availability level for Council and agenda items.
“I would like to continue working with the Town, I am happy working with the Town, and I will keep working in whatever capacity you like to use,” he said prior to Council’s decision.
In the approved Council motion, an acceptance of a termination agreement for the contractual retainer from Fowler White Boggs will be sent via a letter, yet the firm will continue to be involved in two ongoing outside legal cases, involving Beach businessman Brad Benson and the Lani Kai Beach Resort.
Other than the short break, Rooney has been the lead Town legal representative since near the beginning of 2014 under Fowler White Boggs.
According to Beach Mayor Anita Cereceda, the issue arose two weeks ago when the Town received a letter from Fowler White Boggs to notify them that Rooney was leaving the firm, effective Aug. 29. Through the letter, Fowler White Boggs asked Council to consider Rooney and his new firm be assigned to the existing contract that it holds with the Town.
Prior to the decision on Thursday, Council discussed the situation at a workshop on Tuesday, Sept. 2.
At that time, Cereceda made the announcement and Rooney, who was present, suggested the three options if Town officials were to choose him for legal representation. Also on Tuesday, former lead Town legal representative Marilyn Miller, who was representing Fowler White Boggs prior to Rooney, stated she was also exiting the firm, effective Sept. 5.
“From a strictly business point of view, I would never sign a contract that belonged to one company to another company,” said Cereceda. “The companies are not the same, the logistics are not the same, the services are not the same and the people are not the same.”
Cereceda, who has an excused absence Thursday, proposed on Tuesday that Council provide consensus to vote on the matter Thursday.
“I would be comfortable on a short-term agreement while we reflect on what our long hold is,” the Town mayor said.
FMB Town Manager Don Stilwell stated he would like to see Rooney stick around for a couple of months at the very least.
“I do think we need that continuity. We have a lot of things going on. It wouldn’t be judicious not to retain him,” he said.
In March 2014, Fowler White Boggs merged with Buchanan Ingersoll & Rooney. (There is no relation to the Derek with with the latter firm name.)
Miller stated she was exiting the firm to pursue a job with the Charlotte County Attorney’s office.
“So, really, there will be no one in the Fort Myers office with municipal experience,” said Miller.
During the Tuesday discussion, Council members weighed in.
“I am a little disappointed that we were given such short notice,” said Hosafros, who has proposed handling legal matters in-house by creating a part-time Town position.
“I would like to see Derek continue to represent us,” said Vice Mayor Dan Andre. “I think, with a switch, there is a learning curve, and it seems that we keep going backwards. I would like to see us going forward. I think by changing, you are going to set us way back.”
Councilman Alan Mandel said the Town saved $60,000 to $80,000 when they hired Fowler White Boggs.
“I would welcome Derek to continue on the short term or permanent basis,” he said. “Frankly, I know the reason we switched to Fowler White was to save money as a Town.”
Rooney stated the Fowler White Boggs contract was written up to average an 80-hour monthly retainer. The contract, from Jan. 1, 2014 through December 2014, listed the amount of the monthly retainer to be $12,500.
“We had been averaging well over 100 hours the last several months. I think now that some issues are resolved, that will wind down,” he said.
Rooney stated Town officials should be using a “holistic review” of how town attorney services are used in the future. The current Town budget lists roughly $150,000 for legal services.
“Sometimes they use the town attorney when they should be going to the town manager with issues,” Rooney said.
Cereceda agreed there should be a review of how Town officials exploit legal services.
“Part of what escalated our legal fees was how we utilized that service,” she said. “Is the town attorney the go-to-guy for anyone who wants to call him? I don’t believe that is the case. That is a policy decision of the town council. I think that is what needs to be reviewed as much as the service itself.”
On Tuesday, Rooney said he would welcome a short-term agreement for now, even an hourly basis.
“There is a lot of flexibility in there. I am sure we can work things out,” he said.
Cereceda agreed with Hosafros on her reviewal point about legal services.
“I still believe we need to review our legal services and our contracts, whether or not it is in-house. We need to look at it in a dispassionate way with no emotional attachments. I think it is the best interest of the town to look at the broader picture,” said Cereceda. “In short term, I believe Council should make a short-term decision on Thursday.”
An agenda item during the Council’s Oct. 6 workshop has been slated for a review of the town manager performance. Legal services may also be reviewed at that time.
Fowler White Boggs was previously under contract with the Town until Dec. 31, 2014. The contractual monthly retainer involved the following: attending Council meetings (twice a month), work sessions as needed, revising town ordinances, draft and revise town resolutions, legal issues advisement and opinions, town document reviewal, assisting in contract and agreement negotiations and interlocal agreement preparations or revising. The firm was also under contract for non-retainer services to represent the town in civil suits, legal proceedings and administrative and real estate matters to name a few.
Tentative budget numbers set
The Fort Myers Beach Town Council approved a tentative millage rate and budget for fiscal year 2014-15 during the first of two public hearings to set the final budget. The second and final hearing is scheduled for Sept. 15, at 6:30 p.m.
The tentative millage rate was set at 0.7530, while the operating and capital budget was approved at $26,378.09. The Town was said to collect $98,000 from increased property values this year.
Councilman Alan Mandel suggested putting aside money for a Capital Improvement Plan line item. Where that money will be taken from and how much will be determined during discussion prior to adopting final budget on Sept. 15.