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The Atherton City Council has not asked City Attorney Wynne S. Furth to reapply for her job, which she has held since February 2009, but such a request could be coming.
Ms. Furth’s firm, Oakland- and Sacramento-based McDonough, Holland & Allen, is dissolving, and the council is considering retaining Ms. Furth at her new firm, or opening up the position for bids.
Some outside analysis may be useful, and maybe residents of this upscale town who have experience in the law could lend a hand, Mayor Kathy McKeithen said at the July 21 council meeting. “We need some lawyers, some judges, whatever, to assist us in this process,” she said. “We’ve done a dismal job in the past.”
With the town’s legal expenses at $400,000 to $600,000 a year, Ms. McKeithen continued, “our litigation has escalated out of control and it’s continuing to escalate out of control. There’s got to be a way to do a better job at this. Maybe (a citizens committee) can help. Maybe not.”
Councilman Jim Dobbie told his colleagues: “Law firms at the moment are very, very hungry. There’s a lack of business out there. To me, this is an ideal time to go out for bids.”
Ms. McKeithen complained at length about Ms. Furth, including that she has issues with Ms. Furth’s ethics, that Ms. Furth lacks transparency and responsiveness, that she extends litigation unnecessarily, and that she has an adversarial attitude.
“That is not to say that Wynne is not a far better attorney than our last attorney,” Ms. McKeithen added.
Ms. Furth, who had left the room prior to the council discussion, said “not at this time” when asked for a comment.
If the council were to decide on a lawyer without community input, there could be a conflict of interest, Ms. McKeithen said. Ms. Furth arrived at exonerating conclusions in recent investigations of three council members: Charles Marsala on an ethical question, Jerry Carlson on a parliamentary procedure matter, and Elizabeth Lewis on a building permit dust-up.
None of those council members criticized Ms. Furth at the meeting.
Ms. Furth should be kept on and not “thrown under the bus,” Ms. Lewis said. “I don’t see it as a golden opportunity to get a much better deal. We are a very complicated town. I think that getting a new lawyer up to speed will cost us time and cost us money.”
Mr. Carlson said he considered tapping the legal expertise of the community “an interesting idea.”
Mayor McKeithen gave City Manager Jerry Gruber two weeks to come up with a proposal.
A resident’s critique
Resident Kimberly Sweidy is in a dispute with the town over a lengthy home construction project. In a damning letter read to the council by resident and council critic Jon Buckheit, Ms. Sweidy, who is out of town, criticized Ms. Furth’s professionalism and faults her for not appreciating the seriousness of “improper conduct” in the building department.
Ms. Furth, she alleges, does not understand her fiduciary duties, is heedless of impropriety and the appearance of impropriety, is unqualified to “properly conduct local governmental affairs, including the proper staffing and running of the building department,” and is unskilled and uninterested in conflict resolution.
Asked for comment, Ms. Furth pointed out that she represents the town and does not run the building department. She said she spent “a couple of years” studying alternative dispute resolution and that her firm “believes in resolving disputes promptly and equitably.”
“We work hard to give accurate, timely advice to all our clients in an ethical manner,” she said. “It is not always possible to avoid litigation.”
Ms. Furth, a graduate of Harvard University’s law school, said she chaired a California League of Cities ad hoc committee in preparing “Practicing Ethics: A Handbook for Municipal Lawyers,” published in 2004.
“I keep it on my desk,” she added.
For 20 years, she was the city attorney for Claremont. “We had very little litigation, and what litigation we had, we won,” she said, adding that this record was “a result of good policies, good process and good work.”
“Ms. Furth arrived at exonerating conclusions in recent investigations of three council members: Charles Marsala on an ethical question, Jerry Carlson on a parliamentary procedure matter, and Elizabeth Lewis on a building permit dust-up.
None of those council members criticized Ms. Furth at the meeting.”
This is exactly the conflict of interest and impropriety that I referred to in my statement read by Mr. Buckheit. It permeates our local government on almost every level, with few exceptions. And Ms. Furth, FYI, the Town of Atherton Building Department is part of the Town of Atherton, your client. And our correspondence clearly indicates that you are representing and “defending” the Building Department and, in particular, Mike Wasmann, the Building Official.
There are three existing or pending lawsuits with Atherton being named or about to be named the defendant.
One involves a civil rights violation by the Police Department, the other a disregard of the building code by the very department that is supposed to enforce the code, (the Building Department of course). The third lawsuit is one alleging improprieties in the Building Department’s fee collection practices.
All three of these issues were simmering when I worked as Atherton’s Finance Director. All three of these problems I tried in a small way to help fix.
Now, three years later, the chickens have come home to roost. The Town is spending $400,000 to $600,000 on legal fees. Wynn Furth is profiting handsomely while the Town’s financial condition deteriorates. While those who depend upon the Town for essential serivces are left holding the bag.
Wynn Furth tried to secure her own future with the town by going out of her way to exonerate two councilmember on conflict of interest charges (Marsala and Carlson) while giving a free pass to Ms. Elizabeth Lewis on egregioius violations of the Town’s zoning ordinance. As one resident said Ms. Furth can do one thing very well, she can count to three.
Is Ms. Furth guilty of a conflict of interest? I would argue that she is. Rather than hold her masters accountable for their lack of respect for the rule of law, she acted as their apologist, their enabler. By doing so, she has subjected Atherton to even greater exposure to litigation, very expensive and unpredictable litigation.
Atherton’s legal problems will end when the City Council learns that it must play by the rules and when it takes responsibility for its prior misconduct.
Until it gets a City Attorney who has integrity, who plays by the book, and who has the courage to remind the Council of its fiduciary obligation to the community, the Town will continue to wallow in a legal quagmire.
It is indeed quite telling that Mr. Johns flagged some of the major problem areas in the town before they spiralled out of control. The town’s solution was to get rid of him instead of fix the problems. Clearly the town made a major mistake.