AGENDA REPORT
Meeting Date: January 4, 2022Item Number:
To: Honorable Mayor and City Council
From: Laurence S. Wiener, City Attorney
Subject: PROCESS AND BUDGET FOR OBTAINING JURISDICTION
FOR THE CITY PROSECUTOR TO PROSECUTE STATE LAW
MISDEMEANORS
Attachment: 1. Letter from City Prosecutor’s Office
INTRODUCTION
The City Council has previously directed that the City Attorney explore whether and howthe City can assume more prosecutorial functions and avoid some of the policies of the District Attorney’s office that have resulted in certain crimes not being prosecuted to the full extent of the law.
Currently, the City prosecutes City misdemeanor crimes. City misdemeanor crimes arecrimes set forth in the City’s Municipal Code such as building code violations, zoning code violations, and noise violations. The maximum penalty for a City misdemeanorcrime is a $1,000 fine and/or 6 months in jail.
As the City Council is aware, a City has limited authority to prosecute state law crimes.
However, Government Code Section 41803.5 allows a general law city to prosecute state law misdemeanor crimes with the permission of the District Attorney. State law misdemeanor crimes can include possession of drugs for personal use, theft of most property that is worth less than $950, or simple assault and battery that does not involvea deadly weapon or serious injury. Generally, the maximum penalty for a state law misdemeanor crime is also a $1,000 fine and/or 6 months in jail.
At the formal session on January 4, the City Council will discuss the proposal by the City Prosecutor’s Office to handle state law misdemeanors. If the City Council is comfortable with this proposal, the next step would be to approach the District Attorney to request his permission to prosecute state law misdemeanors.
DISCUSSION
Attached to this report is a proposal letter from the City Prosecutor’s Office. The first part of the letter describes the services that will be provided. In short, all services B0785-0001\2606943v1 .doc
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Meeting Date: January 4, 2022
previously provided by the District Attorney’s office for state law misdemeanors wouldnow be provided by the City Prosecutor’s office.
The second part of the letter provides three options to pay for the services. The City Prosecutor’s Office estimates that the Police Department refers approximately 1,100 misdemeanor cases to the District Attorney’s office per year. They have estimated thathandling these cases will require approximately 5,500 hours.
The first option for payment involves paying for services on an hourly basis. The current rate for the City Prosecutor is $175 an hour. Based on an estimated 5,500 hours of service, paying by the hour would result in a fee of $962,500.
The second option would be to continue to offer city prosecutor services on an hourly basis, in accordance with their current contract, and to handle state misdemeanorprosecutions on a fixed fee basis of $1 million per year payable in monthly installments.
The City and the City Prosecutor’s Office would review the fee on a quarterly basis to determine if the estimates that have been used to arrive at this price reflect the real time workload. If the state law prosecutions deviate by more than 20% from the estimated volume of cases or the number of hours required to service them in any two consecutive quarters, then the parties will meet and confer to assure that the state law prosecutions can be administered without losses or windfall for either the City or the City Prosecutor.
The third option would be to have all services handled on a fixed fee basis. The fixed fee would be equal to: (1) $1 million to handle the state code prosecutions plus (2) the average amount billed by the City Prosecutor’s Office to the City for City prosecutionservices during the preceding 5 years. This amount would be billed in monthly installments. This average amount is approximately $587,375 per year. Similar to option two, if this program deviates by more than 20% from the estimated volume of cases or the number of hours requited to service them for any two consecutive quarters, the parties will meet and confer to ensure that the program will be administered withoutlosses or windfall for either the City or the City Prosecutor.
If the City Council decides to utilize the City Prosecutor’s Office to prosecute state law misdemeanors, then the Prosecutor’s Office would need approximately 45 days toprepare to start receiving these cases. Additionally, if the City decides to terminate this service, the Prosecutor’s Office would request 90 days’ notice so that cases may be concluded and so that the office may adopt operationally to the reduction in caseload.
RECOMMENDATION
There are two questions on which the City Attorney’s office will seek direction. First,does the City Council wish to continue with efforts to assume prosecutorial authority forstate law misdemeanors? If so, which of the three proposals from the City Prosecutor does the City Council wish to pursue or does the City Council wish to entertain other proposals?Upon consultation with the Director of Finance, both the City Attorney and the Director ofFinance would recommend beginning this program using option one. As the project gets off the ground, it seems simplest and fairest to both sides to bill for the services providedin a consistent manner with the existing City Prosecutor services.
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Meeting Date: January 4, 2022
Based on the answer to these two questions, the City Attorney’s office will either solicit other proposals or approach the District Attorney to obtain permission to prosecute statelaw misdemeanors.
FISCAL IMPACTUnder all three options provided, the assumption of prosecuting state law misdemeanorsis estimated to cost the City approximately an additional $1 million per year. The third option would also convert the currently provided City Prosecutor services to a fixed annual fee of $587,375, as opposed to the current hourly based fees. There is anexisting budget for the current City Prosecutor services and it is not expected that option three would result in the need for additional funding for those services. Based on the $750,000 enhancement for additional City Prosecutor services approved by the City Council in the Fiscal Year 2021-22 Budget and funds carried over from the previous fiscal year, the City Attorney’s office has enough in its budget to pay for the services inthis fiscal year. An additional enhancement for approximately $250,000 would be included as part of the Fiscal Year 2022-23 budget process.
Laurence S. Wiener,
City Attorney
Approved By
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DAPEER ROSENBUT LITVAK LLP
LAWYERS
WILLIAM LIWAK* I I 500 W. OLYMPIC BLVD., SUITE 550
STEVEN H. ROSENBLfl LOS ANGELES, CA 90064-I 524
KENNETH B. DAPEER TELEPHONE (310) 477-5575
JAMES C. ECKART FACSIMILE (3 (0) 477-7090
PATRICIA H. FITZGERALD
CAROLINE K. CAS11LLO
ERIC P. MARKUS
JAMES CUNNINGHAM
MA7THEW AMES WRITER’S EMAIL
[email protected]
*MANAGING PARTNER
December 22, 2021
Via Email: LWienerrwglaw.com
Laut’ence S. Wiener
City AttorneyCITY OF BEVERLY HILLS4355 N. Rexford Drive, Room 230 Beverly Hills, CA 90210Re: City ofBeverly Hills Prosecution ServicesDear Mr. Wiener:
This letter responds to a request for a proposal for our firm to undertake prosecutions of misdemeanor California state code violations (the ‘Program’), in addition to our current duties as the Beverly Hills City Prosecutor. We appreciate the opportunity to serve thecommunity in this new manner. The following sets forth what we believe would be needed to initiate the Program.
Once the Program is approved and consent obtained from the District Attorney, we wouldcontact the appropriate court and advise them that absent special instructions, out’ office will be handling all citations issued by the BHPD and state code misdemeanor complaints for the City. We would arrange for specific court days to be allocated to the City’s cases. We will review citations filed and confirm probable cause, as well as confirm whether additional charges may be filed.
When matters need to be filed by a complaint, the BHPD would submit their reports and requests for assistance to our office. We would be available to provide legal guidance andassistance with search warrants as requested. We would then evaluate the information provided to confirm the existence of probable cause and coipus delecti. We will then proceed with the filing of the complaints and the issuance of arrest warrants, as needed. Weanticipate that given the pi’ofessionalism of the BHPD we will not need to reject manycases. En those instances where we believe additional information is required to commenceprosecution, we will communicate to the appropriate police personnel our concerns andassist them in determining if additional information is available. We would in most cases DAPEER, ROSEN8LIT LITVAK LLP
Lawrence S. Wiener
CITY Of BEVERLY HILLSRe: City of Beverly Hills Prosecutor Services December 22, 2021Page 2 of4advise the BHPD within 5 days of our prosecutorial decision on any case submitted to us•for handling. No procedural changes will be necessary related to felony prosecutions. Thosewill continue to be processed as they presently are with the District Attorney.Our staff prosecutors would provide all services previously provided by the stall of the DistrictAttorney’s office. This will include manning court rooms in accordance with the schedcileestablished by the Presiding Judge of the Airport Courthouse. We will attend any hearing that may be specially set in a different court as needed. Our services will include arraignments, trialsetting hearings, all motion practice, trials (both jury and non-jury), sentencing hearings, post— trial motions and appeals. We will he responsible for all pretrial and trial related legal filings.
And, trying cases that go unresolved pretrial. We will also provide Legal analysis and support tothe BHPI) as requested to assist them in their police investigations and programs related to the prosecution of misdemeanors.
All cases will be evaluated by senior attorneys with more than 15 years of prosecution experience. All staff attorneys will be monitored and supervised by senior attorneys toassure consistency and quality control. We have prosecution policies in place presently.
We will supplement those to specifically address state code violations. These will cover charging guidelines, plea agreement parameters and sentencing recommendations for eachoffence that we will be prosecuting. We have a training protocol for alt attorneysprosecuting cases and this will continue.
We have been under contract with the City for the past 27 years. Our contract provides for compensation at an hourly rate, which has been $175 for the past four years. If the Cityelects one of the options set forth below that calls for hourly compensation, then that ratewould apply to the additional services being rendered. In the event that our hourly rate isadjusted in the future, then the new rate would apply to the cases referred tinder this newprogram. We propose that the same general terms as set forth in our current contract applyto this new Program.
We have estimated that the City refers approximately 1100 misdemeanor cases to the District Attorney’s office per year, We have based our estimated budget for the Program on this figure. To the extent that the actual number differs, the estimates provide below would need to be adjusted. We will provide the City with monthly statistics of all referrals, filings and case resolutions so that staff can monitor our budget.
In preparing this proposal, we have reviewed workloads and budgets for cities handling their own prosecution and state code crimes and adjusted them to form a comparative base of information. Based on the information we have gathered, we have estimated that providing the additional services for the City will require approximately 5500 hours. At our proposed i’atethat reflects an addition of approximately $1,000,000 to the City Prosecutors existing budget.
DAPEER, ROSENBUT & LITvAK LLP
Lawrence S. WienerCITY OF BEVERLY HILLSRe: City of Beverly Hills Prosecutor Services December 22, 2021
In arriving at this figure. we took into consideration that cases would be batched and handled on specified court days, thereby reducing the overall cost per case. We have also considered that certain services could be handled by specialty staff and paralegals due to the volume anticipated. Thus, the number of hours estimated reflects the time saved by using these operationa] devices.
We are offering the City with three (3) options for the expansion of our services to include statecode prosecutions, as follows:
Option 1: All services, both •for code enforcement, special counsel services and state code criminal prosecutions would be billed at our hourly rate and billed on a monthly basis:
Option 2: Code enforcement services and special counsel to be billed on an hourly basis in accordance with our existing contract with the City. State code prosecutions would behandled on a fixed fee basis of $ 1.000,000 payable in monthly installments. The City and our firm would review the Program on a quarterly basis to determine if the stated estimates reflect a real time workload. If the Program deviates by more than 20% from the estimated nctmber of hours required to service them in any two consecutive quarters. the parties will meet and confer to assure that the Program will be administered without losses or a windfall for the Firm or the City. Costs would be reimbursed in the customary manner.
Option 3: Code enfotcement, special counsel services and state code prosecution will be handled on a fixed fee basis. The fixed fee shall be equal to the $1.000000 estimated for state code prosecutions plus the average amount billed by the Firm during the preceding five (5) years. The City and our firm would review the program on a quarterly basis to determine if the stated estimates reflect a real time workload. If the program deviates by more than 20% from the estimated number of hours required to service all cases in any two consecutive quarters. the parties will meet and confer to assure that the program will beadministered without losses or a windfall for the Firm or the City. Cost would be reimbursed atthe customary manner.
We estimate that we would be ready to start receiving referrals of the new cases within 45 days.
Given our absorption of startup costs for this new Program, we ask that we he given 90 days’ notice if the Program will he terminated. This will allow us time to conclude most cases and adapt operationally to the reduction in case referrals
As you know, in order for us to prosecute state code violations, we will need to obtainconsent from the District Attorney. Thus, this proposal is subject to obtaining that consent.
In the event that the City’ agrees to some cases remaining with the District Attorney, then ouresti mates will also have to be adjusted accordingly.
DAPEER, ROSENELIT & LITVAK LLP
Lawrence S. WienerCITY Of BEVERLY HILLS
Re: City ofBeverly Hills Prosecutor Services
December 22, 2021
Please let me know if you have any questions or if there are issties you would like me to address.
Sincerely,
DAPEER, ROSENBLIT & LITyAK, LLP
By: /s/ William Litvak
William Litvak,Managing Partner
WL MO