Office of the City Attorney
City Hall
1685 Main Street, Room 310
Santa Monica, California 90401
Joseph Lawrence
Interim City Attorney
[email protected]
tel: 310 458-8336 ● fax: 310 395-6727
TO: Interested Firms
FROM: City of Santa Monica, Office of the City Attorney RE: Request for Proposals: Independent Investigation and Report Regarding Possible Violations of the Ralph M. Brown Act, California Government Code Sections 54950 et seq. and City of Santa Monica Confidentiality Agreements Involving the Actions Related to the Selection and Hiring of the City of Santa Monica City Manager and City Attorney in 2021-2022
DATE: February 10, 2022
Background
The City of Santa Monica is a California Charter City. It is organized in a city council-city manager form of government.
The City began a search for a new permanent City Manager in early 2021. This search led to the hiring of a City Manager, who began his employment in October 2021. During the course of that hiring process allegations were made that certain confidential information about the hiring was disclosed to applicants and others without lawful permission.
The City of Santa Monica City Council made the City Manager hiring decision and selected the City Manager during the summer of 2021. They did so with input from various City staff members and an executive search firm, as well as from interim City Managers. Until the final hiring decision was publicly announced as required by law, all actions were conducted confidentially and in “closed session” in accordance with the California Ralph M. Brown Act, Government Code Sections 54950, et seq. (“Brown Act”). A violation of the Brown Act can be a crime. The Council members also individually signed confidentiality agreements.
As the City Manager hiring process was drawing to conclusion the City of Santa Monica began, in early fall 2021, a hiring process for a new permanent City Attorney. As with the hiring of the City Manager, the City Council selects and appoints the City Attorney. The hiring process for the City Attorney is still ongoing and has been conducted similarly to the process utilized for the selection of the City Manager. It is also governed by essentially identical confidentiality rules as were applied to the City Manager hiring process.
Request for Proposals: Independent Investigation – Breach of Confidentiality February 10, 2022
As with the hiring of the City Manager, during the course of the hiring process for the City Attorney, allegations have been made that certain confidential information about the hiring has been disclosed to applicants and others without lawful permission.
Internal Investigation
In response to the allegations of possible breaches of confidentiality, on February 8, 2022, the City of Santa Monica City Council took the following action:
Request of Councilmember Davis that the City Council authorize the City Manager and the Interim City Attorney return to the City Council with a proposal to have an independent investigation of possible violations of the Brown Act by City Council members in connection with the search, candidate evaluation, and recruitment for the positions of City Manager and City Attorney conducted in 2021 and 2022. The investigation also would encompass possible breaches of the Confidentiality Agreements signed by City Council members in connection with these matters. Any proposal should include, as legally proper, full subpoena and other investigatory powers as may be appropriate to conduct a comprehensive review of any potential Brown Act or Confidentiality Agreement violations that the investigator might discover in the course of the investigation.
The City Attorney’s Office is soliciting a skilled and experienced individual or entity with the required professional expertise to conduct an independent investigation into possible unlawful or unpermitted breaches of confidentiality that may have occurred during the 2021-2022 City Manager or City Attorney search processes. Given the nature of the positions involved, this is a high priority matter and will need to be conducted as thoroughly and as quickly as possible.
While a timeline will be developed, ideally an investigation can be completed and a report submitted within 90 days. The selected firm may, however, extend this time frame if it determines that additional time is necessary for it to complete a thorough independent report. A reporting protocol will be established to ensure the independence and integrity of the investigation and report. The final report may be made public or if appropriate, distributed to law enforcement agencies.
The firm selected will be provided all materials and access to all information and electronic data systems as may be needed to conduct the investigation. Subpoena authority under the City Charter is available. The firm selected, however, will be responsible for making independent determinations and providing independent direction regarding document gathering and interviews and for conducting interviews of current and former City officials, staff and others as it determines appropriate. Staff from the City Attorney’s Office will be available to assist in the gathering of documents, scheduling of interviews, and providing other assistance in response to the selected firm’s directions.
Request for Proposals: Independent Investigation – Breach of Confidentiality February 10, 2022
The selected firm will be required to provide bi-weekly updates regarding progress on the gathering of information and the preparation of the report.
Proposals
Proposals submitted in response to this solicitation should include:
The name, background, and relevant expertise and experience of the firm members proposed to have primary responsibility for the gathering of information and preparation of the independent report and evaluation, as well as all other members of the proposed project team;
Specific information regarding any similar independent investigations conducted by the firm and the members of the proposed project team;
The proposed fee structure for conducting the information gathering and preparing the independent report, including billing rates for all members of the proposed team for whom the proposal contemplates billing at an hourly or other time-based rate, and any value-based fee arrangement that focuses on the substantive deliverables and results, such as a fixed fee in whole or in part;
Overall estimate for the cost of the investigation and preparing the independent report based on the firm’s experience conducting similar investigations and bearing in mind that materials already or subsequently gathered by City staff will be provided and that City Attorney’s Office staff will be available to assist in gathering documents and scheduling interviews; and
Any other information the firm believes should be considered in the selection process.
Interested firms should submit proposals by email to [email protected] no later than close of business on Wednesday, February 16, 2022.
Proposal Guidelines
Proposals should confirm agreement with the following billing guidelines:
Administrative or clerical work: Administrative, secretarial, clerical, librarian, and accounting tasks should not be billed. This includes: bill preparation/modification, proofreading, word processing, conflicts checking, calendaring, scanning, imaging, file creation, docketing, organizing files, bates stamping, converting data, database management, copying, and data-input.
Request for Proposals: Independent Investigation – Breach of Confidentiality February 10, 2022
Block billing: Block billing is prohibited. Each billing entry should have a single task or activity and time associated with it.
Costs and expenses: Costs and expenses, including any outside expert expenses, should be submitted at their actual amounts and not with any supplementary markup. Interest and late charges should not be charged. Expenses over the amount of $2,500 incurred in the course of the investigation, e.g., outside expert expenses, may with advance written consent from the City be billed directly to the City.
Interviews: Absent preapproval, only one firm member should bill for any particular interview.
Electronic billing: Firms shall submit invoices via pdf to [email protected]. First-year associates or firm members, summer associates/interns/externs, and law clerks: First-year associates or firm members; summer associates, interns, externs, and law clerks, or their equivalents, are assumed to be in training, and their work should not be billed.
Meals: Meals, snacks, and beverages should not be billed. Overtime: Staff overtime is considered the cost of doing business and should not be billed.
Personnel turnover: All additions or changes to the project team shall be approved in writing by the City Attorney’s Office. Time spent “getting up to speed” for a firm professional due to staff turnover or vacation is not reimbursable. Research fees: Subscription services such as Lexis/Nexis or Westlaw should not be billed as they are the cost of doing business.
Travel: Local travel shall not be billed. Billing fees for travel time without working on the file is not allowed. Only the time spent working on the project should be billed.
Per the Santa Monica Municipal Code and pursuant to the attached forms, firms selected will be required to obtain a City of Santa Monica Business License (see https://finance.smgov.net/doingbusiness/business-license), complete a W-9 form, meet City insurance requirements, meet City Living Wage requirements, and complete a City Oaks Initiative form.
Request for Proposals: Independent Investigation – Breach of Confidentiality February 10, 2022
Selection Process and Criteria
Review of and selection from among the submitted proposals will be made in an expeditious manner based upon criteria in Santa Monica Municipal Code Section 2.24.190 relevant and appropriate to this solicitation, including:
(a) The training, credentials, expertise, and experience of the firm and its proposed team.
(b) The demonstrated competence, ability, capacity, and skill of the firm and its proposed team to provide the services requested within the time frame specified and without delay.
(c) The character, integrity, reputation, and judgment of the firm and its proposed team.
(d) The price which the firm proposes to charge, including whether the price is fair, reasonable, and competitive.
(e) The ability to meet the expedited timeline.
The City reserves the right, in its absolute discretion, to determine the applicability and weight of the criteria listed above, and is not required to select the proposal with the lowest price. The City reserves the right, in its absolute discretion, not to make a selection from among the submitted proposals.
Questions
Questions about the application process should be submitted to Diana Burger, Office Administrator, at [email protected] or 310-458-8336.
Sincerely,
JOSEPH LAWRENCE
Interim City Attorney
Enclosures:
Insurance Requirement
W-9 Form
Living Wage Form
Oaks Initiative Form