Legal Services Ending With Estes & Associates
Published 3:50 pm Thursday, January 12, 2012
CUMBERLAND – Three newly-elected members to the County's Board of Supervisors wasted no time getting to the business items they'd like to see addressed on Tuesday evening. For starters, they were the deciding votes on a decision to terminate Cumberland's legal services with Estes & Associates.
Tuesday's amended Cumberland County Board of Supervisors agenda included discussing the “status of the county attorney” under organizational matters even though the real discussion concerned the amount Cumberland has been paying under a budgeted amount to Estes & Associates for legal services.
The end result was the termination of legal services with Estes & Associates, with the understanding that Cumberland's attorney, Howard Estes, would continue to temporarily assist until projects and work on his desk are smoothly transitioned to a new paid county attorney-not a hired firm.
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Although the majority of the County's Supervisors voted in favor of the decision, it, unlike the hope for the transition, was not a discussion that went smoothly.
When the subject was brought to the floor, Supervisor Lloyd Banks, District Two, spoke up and said, “The residents that I represent in District Two have indicated a huge concern of the historical legal costs the County has incurred in the amount of compensation that we are paying our County Attorney at this time.”
Banks then immediately made a motion to “terminate our current relationship with our current County Attorney and pursue a full-time employee that would fulfill those roles as a full-time employee.”
The Board's newly-elected Chairman, David Meinhard, then called for the discussion.
“There is definitely a discussion,” responded Supervisor Parker Wheeler, District Five.
Wheeler then questioned Banks and asked, “Are you saying you want an in-house attorney? Is that what you are stating?”
Banks just repeated what he had said earlier in his motion without offering any additional explanation.
“That's my motion,” he added.
“Why would you want to put the County in a position of such as not having legal counsel?” asked Wheeler about the motion that was made.
“I'm expressing the voice of the people that I have represented,” offered Banks. “I have shared with this Board and this audience that the residents of District Two have brought this to my attention and have asked me, as their representative, to make this motion.”
Wheeler then asked Chairman Meinhard if he “could continue asking questions?”
He responded, “You can continue to ask the question but I'm not sure you'll get an answer.”
Wheeler then asked Banks to address the “cost factors” that he considered when making the motion that was on the floor concerning the termination of legal services with Estes & Associates.
Banks matter-of-factly said, “If you'd like to have a discussion you can have a discussion. I'm not going to answer questions to you when the people in the audience can't ask questions-but you can ask a question? I don't feel the need to respond. If you'd like to ask the Chairman a question, feel free to do so. But I've made a motion and I hope to bring a vote to it tonight.”
Supervisor Bill Osl, District One, interrupted by stating, “I've seen other jurisdictions that have hired attorneys on staff as one way of dealing with that,” as he referred to information concerning Powhatan County in front of him. “And it winds up costing more than it is costing today…”
Cumberland's County Attorney, personally, does not receive compensation for his services to Cumberland County.
Cumberland's Board of Supervisors entered into a modified legal services option with the law firm Estes & Associates effective on July 1 as a way to reduce costs of legal services by approximately $100,000.
At that time, Cumberland's County Administrator, Judy Ownby, told The Herald the new approved fixed fee for services is just under the yearly budgeted amount of $193,312 at approximately $189,250. The services that are being provided under this option include a certain number of Board of Supervisors meetings and other County meetings, such as those of the Planning Commission and the Industrial Development Authority (IDA) and assisting with staff needs.
These services are at the flat fee listed and are not to exceed that amount. After that, the County Attorney assists Cumberland with any additional projects and other matters, when asked or directed by the Board or County Administrator, according to a fee schedule at a rate of $285 per hour.
“We do not compensate or pay a salary to any individual,” said Osl about the fees. “We work with a firm. You have the budget in your board packet for legal fees for the current year.”
Later, Supervisor Kevin Ingle, District Three, said, “This is not an attack on Mr. Estes, himself. This is on the legal fees. You know there is much concern on whether there is a cheaper way to set it up… I'm trying to make it so we're objective about it and that the costs are consistent month to month. I think the only way to handle that is to be able to work a request for what the cost for services would be to Cumberland County and we are not limiting anybody or excluding anybody. The first bit of work would be to move on and try to pursue a work agreement that is more fitting to our needs.”
Supervisor Osl then asked, again, for the information or data about how to develop “an approach” about how to pursue in the future.
“What is the plan and how do we accomplish it?” he asked. “I don't want to go through the process of making a change to find out it costs us more. I know one of our adjoining counties just went through this over in Powhatan and it is costing them more… Let's get the information. Facts are a hard thing to argue with. Let's get the facts on the table. We pay in a year three times the amount of legal fees to get rid of garbage in this county. Is that an appropriate position for us to be in?”
So far, Cumberland has expended $92,871.75 of the overall budgeted amount for legal services for the fiscal year, according to the monthly budget report that is provided to the Board members.
After this lengthy back-and-forth exchange, the Chairman asked Ms. Ownby to repeat the motion that was on the floor.
At this time, Supervisor Banks changed his motion to the following, “The initial motion is to simply terminate the relationship with the County Attorney and to pursue more cost-effective options.”
The motion passed on a three to two vote. Chairman Meinhard and Supervisors Ingle and Banks voted in favor of the termination motion.
Supervisors Osl and Wheeler voted in opposition of the termination of legal services but that was not the end of this legal service debacle that had just been created by terminating the services.
Supervisor Osl asked, “Is that effective immediately?”
“That's the way the motion was,” responded the Chairman.
“I guess you can leave Mr. Estes,” added Osl.
“I suppose I can,” interjected Estes who had just watched the events unfold.
“Apparently they don't want legal counsel while we consider action at this Board meeting,” continued Osl.
Wheeler later brought the rest of the Supervisors back to the point that they were sitting at their tables without legal representation.
Chairman Meinhard took it upon himself to let the rest of the Board's members in on the fact that he had conducted conversations with E.M. Wright Jr., commonwealth's attorney and county attorney for Buckingham County, about filling in during the interim for Cumberland.
He then read from a letter received from Wright that stated the following, “If Cumberland County should experience a vacancy in the position of county attorney, I would be willing to offer general advice for the Board of Supervisors and its related departments and agencies at the rate of $150 per hour plus out of pocket expenses. This arrangement would be on an interim basis until Cumberland County is engaged with a full-time county attorney and I would submit invoices monthly…”
Chairman Meinhard then made a motion requesting that the Board accept, at this time, the tentative agreement with Wright until such time as an advertisement can be submitted and a decision can be made on a county attorney.
Supervisor Wheeler immediately requested Wright's qualifications.
“Is he up to date on zoning and subdivisions?” asked Wheeler. “And anything else that we have to do that is coming up this year?”
“I have expressed a willingness with the boards over the years to do whatever is necessary to meet budgetary obligations of the County,” offered Estes. “When my firm became County Attorney, this County was spending over a half of a million dollars in legal fees. I proposed an alternative arrangement that would reduce those costs to a fixed cap…Since then, the County has asked that I continue to reduce the costs of those services at each consecutive year and I've done so…”
Estes went on to explain to the new Board that there are outstanding projects on his desk and a “transitional period” would be the next logical decision.
“I would be more than happy to work with the Board on a transitional period so that we can reach a smooth transition,” he said, “to meet the needs of those projects and the County. I know Mr. Wright and he is a wonderful attorney… but he is not going to understand or know the projects that are presently before the County and he is not going to be up to speed and those services are going to be a lag for the citizens.”
Estes noted that the most important project for Cumberland, right now, is the waterline extension project that is currently pending before the USDA (Rural Development) for their approval for executing the documents to begin the extension project's construction.
“That will provide the staff time for that transition and it will allow me time to get the files off of my desk,” he said about the transition. “And then you all can do what you all want to…It's one of the reasons I left my law firm (Woods Rogers) because the fees were continuing to go up and I wanted an opportunity to continue to serve the citizens of Cumberland County at a reduced cost…I've met my terms of that obligation over the years. I've met wonderful people in the community and I've thoroughly enjoyed working with so many of them. I've got friends, acquaintances, and clients here-this is not the last time you will see me.”
Later, Estes also did the Board a favor by noting, when a question was raised, that legal services and engineering services are also exempt from procurement requirements.
Meinhard subsequently went back to the motion that was on the floor related to Wright filling in as Cumberland's interim county attorney.
“I'd like to know his qualifications…before we make a decision on it?” again asked Wheeler.
“Well, I'd like to make a decision tonight,” responded Meinhard. “I throw it right back to you and if you'd like to have more information about Mr. Wright's qualifications you may call him in his office or visit him in his office and talk to him about his qualifications.”
Wheeler still wasn't satisfied and said, “I'd like to see him come to the Board and the whole Board have the qualifications so that we can understand what kind of decision we are making here because this decision can cost us a whole lot more money than what we are paying right now.”
Before taking a vote on the motion about Wright, Supervisor Banks added another motion to the floor related to also placing a cap of 15 hours per week on Wright's services.
That motion failed with Supervisors Ingle, Osl, and Wheeler voting in opposition of the cap of hours for services.
Supervisor Banks and Chairman Meinhard voted in favor.
Meinhard followed by calling for a vote to accept Wright as the interim County Attorney after Estes' transition period ends.
This motion also failed on a three to two vote. Supervisors Ingle, Osl, and Wheeler voted in opposition. Supervisor Banks and Chairman Meinhard voted in favor.
As the hour ticked later into the evening, so came the number of motions being thrown out on the table for consideration.
Supervisor Ingle next made another motion.
“I'd like to make a motion that Mr. Estes be with Cumberland County during the process of our search for the new type of legal representation that we're searching for through the end of March so that current business can be completed and to make sure that we've got the type of representation that we are searching for,” requested Ingle.
Ingle then changed his motion, again, after Banks requested more information related to fees.
According to the comments made by Supervisor Ingle, he wanted his motion to reflect that the services conclude at the end of January or at such time as the County secures representation.
Finally, Estes interjected with information related to the County's current budgeted agreement.
“In the context of the arrangement that was approved in July that has been going forward since the beginning of the fiscal year, (it) provides that I make coverage of all of the meetings of the IDA, the Planning Commission, and the Board of Supervisors on a fixed fee arrangement and that the staff items-that it is anything that is routine advice…that doesn't exceed an hour and a half… Projects that are behind that like redistricting when we had litigation with the Department of Justice about the redistricting plan that was handled on an hourly basis…,” explained Estes to the Board.
According to Estes, during the transition period there would not be “a lot of new projects started” by March 31 but “an opportunity for a “smooth transition.”
The Board would also have time to investigate the cost of securing additional legal services, he advised.
“That current arrangement, I've obviously been working under it since July…,” he said. “If I may, that may be an easy alternative. It's already in the budget and there are already arrangements and I feel comfortable with that arrangement and by March 31 when the County has something as a plan of attack then maybe that can be implemented.”
Ingle at that time went back to his original motion related to keeping Estes & Associates as transition legal services provider until March 31 at the current budgeted amount.
“I want my motion to reflect 'reinstate' Mr. Estes until March 31 to complete the business that is at-hand…,” said Ingle.
Wheeler spoke up and said, “Then why did we fire him? Why didn't we discuss it with him? I mean now we are sitting here with no legal counsel whatsoever. Why didn't we use our heads and discuss it with him? That's preposterous!”
Because Ingle's motion was still on the floor, Wheeler called for the question and the motion passed.
Supervisors Ingle, Osl, and Wheeler voted in favor of the transition motion, Supervisor Banks voted in opposition and Chairman Meinhard abstained.
The legal services ordeal was still not over during the meeting on Tuesday evening.
Banks was then given time by the Chairman to reiterate his position.
He said, “…I have not raised one complaint about his services. I am simply saying this-We are a county with very little incomes. We are a poor county. We are struggling to make ends meet and we are trying to keep a roof over our head and when the County makes decisions where they don't do the best they very can to try to keep costs down, it's the community that suffers.”
Osl responded, “Amen. I agree with your comments. I just wish we would have collected the information before the majority made the decision-just get the data and base it on the facts.”
There was also one motion still left unattended to. Chairman Meinhard had earlier made a motion to initiate the process of advertising for a new county attorney with the intent to have someone hired by April 1. That motion also included the cut-off date of March 1. The motion was not for legal services with a hired firm but for a county attorney.
“As in an employee of the County,” added Meinhard.
The motion carried on a three to two vote. Chairman Meinhard and Supervisors Banks, and Ingle voted in favor. Supervisors Osl and Wheeler voted in opposition.
“I voted against it only because…here is a note from Powhatan where they just did this and it ended up costing them more money,” said Osl. “Again, we have no facts. We are just throwing out ideas and assertions and there is no data.”