Title
Recommendation to Approve Adding a Prosecution Unit to the City Attorney’s Office and to Provide for Facilities Upgrades to Accommodate New Staffing;
Adoption of Resolution Approving Workforce Changes in the City Attorney’s Office to Add Two Positions: Assistant City Attorney and Paralegal, and Upgrade an Administrative Services Coordinator Position to Management Analyst;
Adoption of Resolution Amending the Fiscal Year 2019-20 General Fund Operating Budget by Increasing City Attorney’s Office Appropriations by $172,000;
Authorize the City Attorney to Enter into Any Agreements Necessary with the Alameda County Superior Court and Alameda County District Attorney’s Office to Effectuate the Implementation of the Program; and
Provide Direction on Whether the City Attorney’s Office Should Work with the Charter Revision Subcommittee on a Potential Charter Amendment Authorizing Prosecution of State Law Misdemeanors. (Human Resources 2510)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
Consistent with the City of Alameda (City) Charter’s requirement that “The City Attorney shall prosecute all violations of the ordinances of the City,” the City Attorney’s Office (CAO) requests that the City Council authorize the creation of a City Prosecution Unit within the CAO, consisting of one full-time Assistant City Attorney (Prosecutor) and one full-time Paralegal (Investigator). Consistent with this request, the CAO further requests authorization to enter into any agreements necessary with the Alameda County Superior Court and Alameda County District Attorney’s Office to effectuate the implementation of this program, and provide direction on whether the City Attorney’s Office should work with the Charter Revision Subcommittee on any potential charter amendment authorizing prosecution of state law misdemeanors. Without such an amendment, City prosecutors are generally limited to prosecuting violations of local laws and must seek the consent of the District Attorney before filing any case containing state law charges.
Additionally, the CAO is asking to upgrade the current Administrative Services Coordinator position to Management Analyst in order to recognize the complexity of work being performed.
BACKGROUND
The City Council and the community have consistently expressed both a strong interest in enforcing local and certain state laws, and concern that there is currently a lack of adequate enforcement resources. While the District Attorney’s (DA) Office has the right to prosecute and enforce all state and local laws, given the many resource constraints of the DA’s Office and its reasonable prioritization of serious felonies, there remains a significant need to provide additional local prosecutorial resources to meet the expectations of the community. Examples of local cases that could be handled by a City Prosecutorial Unit runs the gamut ranging from shop-lifting to disturbing the peace, to housing and consumer protection cases, such as unlicensed contracting, consumer fraud, minimum-wage and tenant harassment.
Accordingly, the City Council, the Alameda Police Department (APD) and the community have expressed interest in the CAO fulfilling its charter mandated obligation to enforce local laws and take on the enforcement of certain state laws to the extent appropriate and in partnership with the District Attorney’s Office.
DISCUSSION
The legal authorizations for the work of City Prosecutors come from numerous sources. Some duties are mandatory, others are permissive, yet others require consent of the District Attorney or explicit authorization by the City Charter. For instance, Alameda City Charter Section 8-2 provides that “The City Attorney shall prosecute all violations of the ordinances of the City.” California State Law (Civil Code Section 731) further authorizes the City Attorney to prosecute public nuisance actions in the name of the “People of the State of California” - a distinct legal entity from the City. (See, e.g., People of California, ex rel. Herrera v. Check ‘N Go of California, Inc. (C.A.N.D. 2007) 2007 WL 2406888, *4-5) [when city attorneys bring suit as the People of the State of California under state statutory authority the real party in interest is the state, not the locality])
With respect to general state law misdemeanors (e.g. theft, disturbing the peace, state labor laws, state business laws), state law authorizes the City Attorney to prosecute such violations 1) if the City Charter authorizes such; or 2) with the consent of the DA. See Government Code Sections 72193 & 41803.5. Currently, the City’s Charter does not explicitly authorize local prosecution of state law misdemeanors. Thus, unless the Charter is amended, the DA’s consent is required for all state law misdemeanor prosecutions. This report seeks direction from the City Council on whether to pursue such a charter amendment as part of the City’s ongoing Charter review process.
Furthermore, certain state laws may only be used when a City employs a full-time prosecutor. California State Business and Professions Code Section 17206 authorizes “a city prosecutor in any city having a full-time city prosecutor” to bring an unfair competition action in the name of the People, with the Consent of the DA (unless the City has a population in excess of 750,000). The table below provides more complete information on the various types of potential prosecutorial duties and the types of authorization available or required:
Table A
Prosecution Units within a City Attorney’s Office is more common in Southern California, but not in Northern California. Many cities comparable in size to Alameda contain such units, as outlined below:
Table B
Having reviewed the current operations of the CAO and the needs of the community, the CAO believes that the creation of a City Prosecution Unit consisting of one attorney and one support staff is appropriate to meet the currently expected prosecutorial needs of the City. This team’s anticipated work will include prosecutions of the violations set forth in Table A above, with likely emphasis in the areas of housing, public safety, consumer protection, and regulatory code violations. This team may be augmented by other resources, as needed, such as existing in-house staff, volunteer law clerks, part-time, as-needed, file-clerk, and/or external legal services.
New Position Request
• One attorney full-time budgeted at Assistant City Attorney II, Step 3 level. It is anticipated that this position will be under-filled at the Assistant City Attorney I or the Deputy City Attorney II level to start. The contract City Prosecutor for San Mateo has offered to provide contracted assistance to Alameda and could provide necessary training, especially if the position is ultimately hired at the lower Deputy II level.
• One Paralegal position.
• With the addition of these two new positions, the CAO will have seven full-time attorneys including the City Attorney and the Risk Manager, three paralegals, one Management Analyst (pending position upgrade) for a total of 11 full-time staff. Additionally, the CAO is further staffed with one contract attorney and one part-time file clerk.
Remodeling and Equipment Costs
• The CAO, in coordination with the CMO, has identified an existing office space within City Hall that could be used to house these new staff members. The CAO requests funds to partition the current space, and modestly remodel/re-furnish this and other existing CAO office spaces to accommodate these two additional staff members and other as-needed resources, such as volunteer law clerks.
• Cost of new equipment (computers, printers and phones)
Reclassification Request
Reclassification of the CAO’s Office Administrator position, currently classified as Administrative Services Coordinator, to Management Analyst is consistent with the position’s current job responsibilities. The Office Administrator is central to the running and operations of the CAO. The function closely coordinates with the City Attorney and the Acting Assistant Chief City Attorney to manage the CAO’s budget, oversees daily operations of the offices, and directly supervises the non-attorney professional staff. The current City Attorney, having evaluated the role of the Office Administrator and functions of the CAO, recommends this reclassification. Indeed, if the City Council authorizes the creation of the prosecution unit, the Office Administrator’s responsibilities will increase, further necessitating the classification upgrade.
The Interim City Attorney as well as the previous City Attorney also recommended this upgrade.
FINANCIAL IMPACT
The total annual cost for the new Assistant City Attorney II position is estimated at $247,000. The estimated annual cost for the new Paralegal position is estimated at $145,000. The cost for both positions include salary, benefit and the CalPERS contribution creating an annual increase of $392,000
The upgrade of the Administrative Services Coordinator to Management Analyst is $11,000 including the additional CalPERS contribution.
The annual cost for all recommended workforce changes is estimated at $403,000. It is anticipated that the new positions will be filled between October of 2019 and February of 2020, a seven month impact on the current year budget. Based on the type of cases and support provided to the departments, the City Attorney is estimating that Prosecution Unit staff will allocate approximately 50% of the time covering Rent Stabilization Fund activities, 35% public safety work (General Fund) and 15% code enforcement related work (Community Development Fund). Funding for the two new positions will come from the benefiting Funds at the described proportions.
It is also recommended to provide $81,000 to remodel the City Attorney’s Office and purchase new furniture and equipment for new employees.
It is recommended that in Fiscal Year 2019-20 the estimated expenditures proposed above be funded as follows:
|
Fund |
Amount |
|
Rent Stabilization Fund |
$114,500 |
|
General Fund |
$172,000 |
|
Community Development Fund |
$34,500 |
|
Total |
$321,000 |
Staff estimates that the Community Development Fund has sufficient appropriations to cover these additional costs. Due to the Rent Stabilization Fund currently funding a portion of the City Attorney’s office, there may be a required subsidy to this Fund in the current year and either fees will need to be adjusted or further General Fund subsidy will be required long term. However, the General Fund appropriations to cover the costs of the new positions for a seven month period as well as the cost of an upgraded position, office space remodeling and purchase of furniture and equipment are recommended to be increased by a total of $172,000. The CAO hopes to offset some of these increased expenditures by moving toward handling certain new litigation matters in-house using existing in-house attorneys.
Rent Stabilization and Community Development Funds are self-sustaining and are funded with rent stabilization fees and permit fees, respectively. These additional costs were not known at the time the fees for both programs were established. As a result, staff may need to update fees studies that could result in fees increase.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This action is in conformance with the Alameda Municipal Code and all policy documents.
ENVIRONMENTAL REVIEW
This activity is not a project and is exempt from the California Environmental Quality Act (CEQA) pursuant to 10561(b)(3) as there is no possibility that this action may have a significant effect on the environment.
CLIMATE IMPACT
This action provides more opportunity for enforcement based on Climate Action goals.
RECOMMENDATION
Approval to add a Prosecution Unit to the City Attorney’s Office and provide for facilities upgrades to accommodate new staffing; and
Adopt a resolution approving workforce changes in the City Attorney’s Office to add two Positions; Assistant City Attorney and Paralegal and upgrade an Administrative Services Coordinator Position to Management Analyst; and
Adopt a resolution amending the Fiscal Year 2019-20 General Fund Operating Budget by increasing City Attorney’s Office appropriations by $172,000.
Authorize the City Attorney to enter into any agreements necessary with the Alameda County Superior Court and the Alameda County District Attorney’s Office to effectuate the implementation of this program.
Direct the City Attorney’s Office to work with the Charter Revision Subcommittee on a potential charter amendment authorizing prosecution of state law misdemeanors.
CITY MANAGER RECOMMENDATION
If the City Council decides to add this function in the City, the City Manager anticipates that the General Fund should be able to financially sustain it in the current two year budget including possible subsidies to the Rent Stabilization Fund. Long term, the addition of this function will need to be funded through working toward a possible reduction in outside legal litigation funding and possible reprioritization of other services to maintain sufficient funding.
If approved, I would recommend at the end of the first two years that a cost/benefit analysis occur.
Respectfully submitted,
Yibin Shen, City Attorney
Nancy Bronstein, Human Resource Director
Financial Impact section reviewed,
Elena Adair, Finance Director