MORGANTOWN — The City of Morgantown is eliminating the municipal attorney as an in-house employee, opting instead to enter into a retainer agreement with a local law firm.
The change in how municipal legal counsel is handled is among the more noteworthy issues to come out of city council’s 2019-’20 budget discussions.
City Manager Paul Brake said the ordinance giving him the authority to make such an administrative change has been in place since the late 1970s. Even so, Brake said he reached out to the West Virginia Ethics Commission, which signed off on the move as presented.
According to Brake, contracting the work will be cheaper and more efficient than hiring a second attorney. It will also give the city access to a wider range of expertise.
The retainer, budgeted at $420,000 for the fiscal year beginning July 1, will cover four primary areas — municipal law, regulatory law, contract law and human resources.
Brake said adding a second attorney as a city employee would put the city attorney’s office at around $511,000.
“So in those instances where things are quieter, we’re not employing someone who has idle time,” Brake said. “Again, under that arrangement of working with outside legal counsel, they can adjust with those ebbs and flows.”
Brake said his previous experience indicates this type of outside arrangement is more common than dedicated, in-house counsel and provides more comprehensive service.
“In my 30 years of working, other than working for a rural, county government many, many years ago, this is the first time that I’ve had an in-house legal counsel,” Brake said. “Every single organization, large or small, that I’ve worked for has had outside legal counsel.”
City Attorney Ryan Simonton will continue to serve the city as general counsel through the agreement, but he will work out of the firm, not city hall.
“So for the meetings and the presence that Ryan has on all the boards and commissions, none of that will change. In fact, as far as his involvement, we are the sole client,” Brake said.
“That was the assurance that I needed so that it’s not a case where he says, ‘Well, I’ll call you back when I get to you because I’m now taking on several other clients.’ No, the general counsel will be a dedicated service of Mr. Simonton. The additional services, that will be different attorneys that will come into the picture, and they’ll kind of zoom in and out as needs come about.”
It was explained West Virginia code doesn’t require contracts for legal representation be bid out. Asked if the firm to be retained will be Simonton’s former employer, Kay Casto & Chaney, Communications Director Andrew Stacy said that’s yet to be determined.
“There are two big factors that will go into which law firm is selected, and those are proximity to Morgantown and the firm’s municipal law capabilities,” Stacy said.
Currently, along with Simonton, the city has two outside contracts, one for prosecutorial work with Matthew Thorn and one for general counsel assistance through Kay, Casto & Chaney.
Brake said prosecutorial work will continue to be contracted out separately. Additionally, specialized services like bond counsel is not covered under the retainer.
As the change is administrative, it does not require a vote from council. Even so, there were some concerns raised.
Councilor Rachel Fetty, an attorney, said she fears setting a known amount in the retainer agreement will simply provide a target to hit or exceed.
“The firm knows you have a certain amount allocated, and so there’s rarely any reward for not spending all that or not ratcheting up your billable hours,” she said.
Brake conceded that given unexpected circumstances, the numbers may have to be altered throughout the year. But, he said, that is no different than what happens now if Simonton needs to bring in assistance or contract counsel with a specific field of expertise.
“I feel entirely comfortable,” Brake said. “But is this a 100 percent guarantee that we positively guarantee we will not exceed that? I can’t make that guarantee,” Brake said.
Along with Simonton, a full-time legal assistant is currently employed by the city.
According to Stacy, the change will likely take place around July 1.