Tuesday, Nov. 25, 2008 | As Jan Goldsmith takes the reins at the City Attorney’s Office, he has vowed to interview every single lawyer employed by the city and to rid the office of attorneys who don’t fit his vision or who don’t have the requisite skills or experience to push the city forward.
But, because of a two-year-old agreement between the city and the union that represents deputy city attorneys, Goldsmith will have to choose whether to give severance pay to many of those lawyers who he doesn’t are think fit for duty or give those lawyers three weeks notice, during which they will be expected to continue working despite having just been fired.
If he chooses to pay the lawyers, Goldsmith’s housecleaning could end up costing the city tens or even hundreds of thousands of dollars in severance pay at a time when City Hall is grappling with a $43 million shortfall and the City Attorney’s Office is already projected to go more than $1.8 million over budget with more than half of the fiscal year to go.
But, if he chooses to ask the attorneys to work out their notice, Goldsmith runs the risk that the ousted employees will stop working anyway, and two local employment law experts said private sector employers usually prefer to pay their employees severance because of the risk of poor work performance or even sabotage.
“They’re not going to be of any use anyway,” said Orly Lobel, an employment law expert at the University of San Diego. “You don’t want them hanging around, trying to poach your other employees, that kind of thing.”
The labor agreement, inked between the city and the Deputy City Attorney’s Association, requires that deputy city attorneys who have been employed by the city for more than two years are given three weeks’ notice when they are terminated. If the deputy city attorneys are fired on the spot, they are entitled to three weeks pay in lieu of that notice.
The city’s 2009 budget pegs the salary for each of the city’s 135 deputy city attorneys at $92,712 a year. At that rate, three weeks of pre-tax pay would mean a payout of $5,348 per attorney. If Goldsmith fires 10 attorneys without notice, the city will therefore pay out $58,487. If 30 attorneys are fired without notice, the city would pay more than $160,000.
Goldsmith said he plans to factor the possibility of such payments into his budget. He said he’s spent the weeks since the election studying the city attorney’s budget and getting familiar with the various issues he’s going to have to face when he takes office on Dec. 8. But Goldsmith said ultimately he will be judging whether to keep attorneys not on how much that decision might cost the city, but on whether the employee is a valid asset.
“I’m making my decisions, primarily, at this point, based on the lawyering,” he said. “There are a lot of things that need to be cleared out.”
Joan McNamara, DCAA president, said Goldsmith had a positive meeting with the union before his election and that she’s confident he isn’t planning on terminating large numbers of her colleagues. (The DCAA’s former president, Andrew Jones, endorsed Goldsmith in his run against Aguirre and campaigned on the challenger’s behalf.)
“People aren’t feeling that he’s going to let go a whole lot of people,” McNamara said. “I think we’re feeling pretty good about him.”
Rather than firing the attorneys on the spot and paying them severance pay, Goldsmith could choose to keep the employees working for the three week notice period. Lobel said that’s probably a bad idea. Disgruntled employees can cause all sorts of problems for employers, Lobel said, which is why most private and public sector employers usually chose to simply pay up and move on.
But Ruben Garcia, an employment law expert at California Western School of Law, said outgoing employees can also be of great use to an employer, particularly in the public sector. While private employers usually opt to play it safe by paying severance, ousted employees are rarely moved to produce poor work just because they’ve been terminated, he said.
“There’s little evidence that sabotage is a legitimate concern,” Garcia said. “These are professionals and they have obligations to the city.”
In an interview Friday, Goldsmith said he’s about one-third of the way through interviewing the 135 deputy city attorneys at the office. He said he hopes to interview all the lawyers before he takes office on Dec. 8, but he refused to detail how many people he’s already planning on letting go.
It’s customary for political offices to see large turnover in the wake of an election, but in Aguirre’s case, the flow of attorneys from the City Attorney’s Office continued throughout the four years Aguirre was in power and became a bone of contention throughout his reelection campaign.
A county grand jury report in June stated that 124 of the city’s 135 attorneys had either been terminated or resigned since December 2004, when Aguirre took office. Goldsmith made the turnover at the office a central component of his campaign against Aguirre, and has vowed to stem the flow of attorneys leaving the city.