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    4.    
LEGISLATION COMMITTEE
Meeting Date: 07/22/2019  
Subject:    State Advocacy Services Contract
Submitted For: LEGISLATION COMMITTEE
Department: County Administrator  
Referral No.: 2019-19  
Referral Name: State Advocacy Services
Presenter: L. DeLaney Contact: L. DeLaney, 925-335-1097

Information
Referral History:
On June 11, 2019, the Board of Supervisors approved a contract for state legislative advocacy services with Nossaman LLP, subject to approval as to form by County Counsel. A copy of the board order is attached as Attachment A. (The RFQ for State Legislative Advocacy services indicated that the contract period would be for three years, with two single year renewal options possible.)

According to their RFQ response, Nossaman LLP, a limited liability partnership in existence since 1942, has more than 170 attorneys and public policy advisors across eight different offices located in Sacramento, Los Angeles, San Francisco, Irvine, San Diego, Seattle, Austin, and Washington D.C. The advocacy services for the County would be provided out of their Sacramento offices. Ashley Walker and Jennifer Capitolo, Senior Policy Advisors in their Public Policy Group, would be the lead lobbyists for the County and would have the primary responsibility under a contract for managing the Nossaman "team" in achieving the County's legislative objectives. As stated in their proposal, Ms. Capitolo currently serves as the lead government affairs representative for the California Water Association (CWA), a statewide association of water utilities that are regulated by the PUC, and lobbies both the State Legislature and the State Water Resources Control Board on behalf of the organization. Other advisors included in the proposal have extensive experience in crafting and lobbying for legislation related to water recycling.

On June 26, 2019, before contract negotiations were complete, the County received a letter from Nossaman advising the County that Nossaman has an ongoing commitment to provide legal services to the Kern County Water Agency, the Coalition for a Sustainable Delta, and other unnamed clients. According to the letter, all of these clients may, at times, have interests that conflict with those of the County. A copy of the letter is attached as Attachment B. The nature of the potential conflicts is described on page 2 of the letter. The letter goes on to request that the County formally waive the conflict.

On July 8, 2019, a second letter was received from Nossaman, a copy of which is attached as Attachment C. The second letter reveals that the firm’s request for a conflict waiver was based on rules of professional conduct for the legal profession that no longer apply.[1] And that under the new rules, Nossaman has concluded that no conflict currently exists and therefore a conflict waiver is not required. Nossaman concludes the letter by asking the County to acknowledge that the firm has disclosed to the County that the firm represents the Kern County Water Agency and the Coalition for a Sustainable Delta, and that those clients have adverse, or potentially adverse, positions to the County with regard to State water project operations and the Delta conveyance project.


[1] The State Bar of California adopted new rules of professional conduct that went into effect November 1, 2018.
Referral Update:
Law firms owe clients a duty of undivided loyalty. When a client’s interests are adverse to another client’s interests, the firm’s representation of those clients may be affected.

Nossaman is proposing as a mitigation the creation of an “ethical wall” between the professionals who represent the Kern County Water Agency and the Coalition for a Sustainable Delta on the one hand and the professionals who will represent the County on the other hand. The “wall” would be necessary because Nossaman reports that it will continue to represent both the Kern County Water Agency and the Coalition for a Sustainable Delta with respect to endangered species and water supply issues in the Delta, including with respect to the Delta conveyance project.

If during the term of the County’s contract with Nossaman, a situation arises that, under the current rules, requires Nossaman to obtain conflict waivers, Nossaman would have to obtain them from all affected clients in order to continue the then-existing representation.
Recommendation(s)/Next Step(s):
PROVIDE a recommendation to the Board of Supervisors at its meeting on July 30, 2019 as to how to respond to the Nossaman LLP letters to the County dated June 26, 2019 and July 8, 2019.

The options the Legislation Committee may want to consider as its recommendation to the Board of Supervisors include the following:

1. DIRECT staff to continue negotiations of the contract with Nossaman LLP; decline to execute the requested acknowledgement; and incorporate language into the contract to the effect that:
  • the County is not currently waiving any future conflicts; and
  • Nossaman LLP is required to disclose to the County if the firm agrees to represent any client in a matter that is adverse to the County, even if the firm is not otherwise required to disclose the matter to the County; and
  • provides the County with the option to terminate the contract based on the new information.
2. DIRECT staff to discontinue negotiations of the contract.
Fiscal Impact (if any):
A contract in the amount of $630,000 for three fiscal years (FY 19/20 through FY 21/22) was authorized to be entered into with Nossman LLP by the Board of Supervisors on June 11, 2019, subject to approval to form by County Counsel.
Attachments
Attachment A--Board Order
Attachment B
Attachment C

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