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Fairmont legal counsel bids fall flat

FAIRMONT — A Fairmont City Council work session held Monday to view proposals from law firms seeking a contract as the city’s legal counsel for civil matters failed to produce a consensus, and sent the whole process back to the drawing board.

During work sessions, the council does not vote on issues, but uses the time to discuss one or two specific topics.

The city has been using Flaherty & Hood, a Minneapolis law firm, as its interim civil counsel. It also contracts with the Martin County Attorney to handle criminal matters, all since terminating the services of in-house attorney Elizabeth Bloomquist in May.

The interim agreement with Flaherty & Hood does not have a termination date, but the firm does require a 60-day notice to end the temporary partnership.

Requests for proposals for a three-year contract were sent out to 30 law firms in October, and the job also was posted on the League of Minnesota Cities’ website. Council members were asked to recommend firms to be contacted.

Troy Nemmers, interim city administrator, told the council that only three firms submitted proposals: Flaherty & Hood; Eckberg Lammers of Stillwater; and Rupp, Anderson, Squires and Waldspurger of Minneapolis. Six firms sent letters declining to submit a proposal, and the remaining 21 firms did not respond.

Nemmers asked for council direction on the matter.

“I’m not satisfied with the process we’ve been through so far,” said Councilman Tom Hawkins, saying the RFP requirement of 24 “house visits” the firm would be required to make to Fairmont is “too high.”

Hawkins said he talked to a Mankato attorney who was not on the list of firms receiving an RFP but would be interested.

“He said there were a number of firms around Mankato who would probably be interested,” Hawkins said. “I would like to be able to send the proposal out to more firms. I have no idea why these firms in Mankato weren’t included. I would like to extend the time and send some more proposals out.”

He also advocated for eliminating the required 24 visits and substitute “a la carte” visits.

“When we got this list (of attorneys), why didn’t you add to it then?” asked Councilman Bruce Peters.

“I guess I didn’t realize there were no Mankato people on there,” Hawkins said.

Mayor Debbie Foster said council members were sent emails asking if they wanted names added.

“It’s possible I missed it, but the other thing is that we’ll have an (new) interim city administrator here soon,” Hawkins said. “I’d like to have him look at the proposal and see if the 24 visits were reasonable or not. With only three responses, I think the proposal itself limited the responses.”

He said his recommendation would be to open up the proposal to include Mankato area firms.

“My recommendation would be to go with Flaherty & Hood,” said Peters, adding that he favored the option with straight billing, not a monthly retainer.

Council member Wayne Hasek also backed Flaherty & Hood because of its expertise in municipal law and its familiarity with Fairmont’s issues.

“I just think we want more choices,” Hawkins said.

“So you think someone’s going to come in cheaper?” Peters asked.

“I don’t know if they are or not. I’m just saying, why weren’t they included?” Hawkins said. “If we can get somebody closer, I don’t think that’s unreasonable.”

Council member Ruth Cyphers asked for an explanation of the retainer.

Nemmers said it is a monthly fee that covers standard, normal everyday operations, equating it to paying in advance for services provided.

“Part of the problem is their hourly rate may be acceptable, but their travel charges, that really jacks up that hourly rate,” said Councilman Randy Lubenow.

He asked the mayor why she is against soliciting Mankato firms, but Foster quickly denied that is the case, reiterating her question about why council members didn’t request the firms be put on the list to receive the RFP.

“I think we did a good job going locally, but nobody stepped up to the plate,” Lubenow said. “Nobody wanted it locally so I think the next step would be Mankato and New Ulm. Obviously, the travel charges would be cheaper than the Twin Cities.”

“I’m not against doing that. I’m just saying, why didn’t you?” Peters said.

Hawkins again said he must have missed the list.

“This is not a 40-hour a week job for me so I missed it too,” Lubenow said.

He agreed with Hawkins that as long as there is no termination date on Flaherty & Hood’s interim services and a new city administrator will be hired, more proposals should be gathered.

“As far as the process itself goes, if we’re going to go out for additional proposals, I think you need to start the process over,” Nemmers said. “To just go out and say, could you guys give us a proposal too, that compromises the integrity of the request for proposals.”

He suggested the council reject the proposals and issue a new RFP in a couple of months.

Foster said the community is wondering about the cost of interim legal services since Bloomquist’s departure versus how much money would have been spent to maintain an in-house counsel.

Paul Hoye, city finance director, offered numbers from June through September.

“Contracted out, with Flaherty & Hood and Martin County, is $16,252.30 a month,” he said. “Based upon our 2019 budget, I figured it at $15,135.25, about $1,100 a month (difference). That doesn’t include October. October is going to be the highest month.”

Lubenow said he is not necessarily opposed to hiring an in-house attorney but wants to consider a “time share” with one or two other communities in the county.

Cyphers supported the attorney-sharing concept.

“It’s a viable idea, but I don’t think it’s going to work for us now,” Hawkins said. He recommended waiting until a new city administrator is hired.

Lubenow suggested that most lawyers do not want to answer questions on the spot during a meeting.

“That’s what I’ve heard from some people,” he said.

“But we need that,” Peters said.

“Absolutely, we need that,” Foster said. “If there was ever a time that this City Council needed to have legal representation at every single meeting, it is now, with the diversity of our council.”

“It’s temporary,” Hawkins said.

“We were told that six months ago,” Hasek said.

Foster said she was pleased to see that Flaherty & Hood had submitted a proposal, calling the firm’s advice over the past months “exceptional” and its hourly rate the least expensive.

“If we go out and get Mankato and New Ulm, and you don’t like what you get there, then where are you going to go?” Foster asked.

“Flaherty & Hood, if that’s what you like,” Hawkins said.

“I’m like you. I’m not a fan of Flaherty & Hood,” Cyphers said. “I’m not pleased with Flaherty & Hood like you guys are because that’s the way you spoke tonight. It’s just my opinion. There’s just been times when I don’t think it’s been real accurate; one was just the other night, but we can’t talk about that. If I would do anything, I would take Flaherty & Hood out and look at the other two.”

Council members generally agreed to reject the bids, continue with Flaherty & Hood in the interim and delay a decision until a new city administrator is hired. They will vote on the issue at the next council meeting at 5:30 p.m. Monday.

The council tentatively set two additional work sessions for December. The community center committee will give an updated presentation at 4:30 p.m. Dec. 2. Generating additional funds for street projects, either through a franchise fee or an added half-cent local option sales tax, will be the topic at 4:30 p.m. Dec. 9, prior to the council’s public hearing on the budget at 6 p.m.

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