After a three-week delay, East Lansing City Council approved a contract with Easterly Law, PLLC to act as the City Attorney for prosecution services in a 4-1 vote. Council member George Brookover was the lone no vote.
Robert Easterly, who has been serving as prosecutor under the City of East Lansing’s previous contract with Foster Swift, will continue his work with the City — now independent of Foster Swift — for an annual rate of $360,000.
Mayor Ron Bacon expressed displeasure with how the City handled the entire process and called for the hiring practice to be formally agreed to and set in writing for future City Attorney hires.
Council approved a contract with Giamarco, Mullins and Horton (GMH) law firm to serve as City Attorneys for municipal legal counsel on Feb. 22. The contract with Easterly for prosecutorial services was also considered at that time, but Council voted to postpone approval of the contract until its Mar. 8 meeting due to confusion about the hourly rates proposed by Easterly.
At Council’s Feb. 22 meeting, City Manager George Lahanas said that although the proposed contract in the agenda packet had a $145 hourly rate, Easterly had actually verbally agreed to an hourly rate of $135, matching what GMH is charging the City. Council asked for more clarity before voting, wanting to know precisely what they would be paying. They postponed consideration to March 8. The proposed contract with Easterly did not appear as an agenda item at that meeting, apparently due to Bacon’s absence.
When the discussion and approval for Easterly’s contract finally came back to Council on Tuesday, Council member Lisa Babcock introduced a motion to approve the contract and pay Easterly the flat annual rate.
“It’s rare for a former public defender to say how much they appreciate the prosecution philosophy, but Mr. Easterly has been exceptional,” Babcock, an attorney, said. “He has done a fantastic job of prosecuting cases and being mindful of the policy parameters that this Council has set.”
Council member George Brookover, also an attorney — and often the lone dissenting voice on Council — outlined the five reasons why he would be voting against the contract: wording about who Easterly would report to; concern with the indemnification clause; concern over the insurance clause; the flat fee component; and concern over Easterly subcontracting some work to Grewal Law, PLLC.
Following Brookover’s list of concerns, discussion focused on the proposed pay for Easterly and to whom he would report.
Babcock argued for the flat rate, saying that attorneys often work long hours and the job consumes their thoughts long after they have stopped working for the day. Attorneys must also pay subscription fees for various services and pay staff to assist them with their work, she said.
Mayor Pro Tem Jessy Gregg shared Brookover’s concerns about the annual flat rate. She asked Lahanas for clarification on the hourly rate, since the agenda item again stated $145 an hour instead of the $135 an hour that Lahanas previously said Easterly had verbally agreed to.
“The original GMH contract had two different numbers on it,” Lahanas said. “In an addendum, it had $145, but in the original agreement it said $135. When I spoke to Mr. Easterly, I said ‘they [GMH] have two numbers: $135 and $145. Are you willing to match their number?’ and he said he was willing to match it. It took that because GMH’s final number was $135, I put $135 based on that conversation. So there were two numbers. There was ambiguity.”
Bacon argued in favor of the flat annual rate, saying it would make budgeting easier and “mitigate risk” because it precludes runaway costs for prosecutorial services.
Bacon’s main concern, however, was how the whole process for hiring Easterly had gone down.
“The legal questions inside of the contract are the legal things that should be addressed by our City Attorney in the negotiation process, not in the halls of Council,” Bacon said. “I’m not going to hold the candidate responsible for things that weren’t done.”
Bacon called for the procedure for hiring a City Attorney to be put in writing and improved to avoid future problems, like wording in the proposed contract.
During a back and forth with Lahanas it became apparent that the City’s labor attorneys at Keller Thoma had vetted GMH’s contract with the City. Neither Keller Thoma nor GMH had vetted the contract with Easterly, and no representative from GMH was in attendance at the meeting because it was “discussion-only,” despite a decision on a contract being on the agenda.
Gregg proposed a friendly amendment that would rectify some of Brookover’s concerns, including who the prosecutor reports to. Per the charter, the City Attorney should report to Council and the City Manager, not simply the Mayor. The contract, as originally proposed, said Easterly would report to the Mayor, so Gregg included language to have Easterly report to Council and the City Manager.
Gregg’s amendment also included a clause that approval of the contract is “subject to review by our City Attorney.” Gregg proposed this language in hopes that an attorney could address Brookover’s concerns regarding insurance, indemnification, and subcontracting work. Lahanas said that while Keller Thoma could also review Easterly’s contract, GMH should as the current City Attorney. Brookover chimed in that GHM was cheaper than Keller Thoma.
Babcock did not second the amendment, pointing to the disparity in how GMH’s bid and contract was handled compared to Easterly’s.
“This kind of goes back to what the Mayor was saying about how the contract wasn’t hashed out in the Council chambers and this one shouldn’t be either,” Babcock said. “But here we are. I very much want to get this done.”
Council member Dana Watson similarly expressed that the process for hiring the City Attorney and prosecutor had originally “been step-in-step. The new City Attorney’s contract was vetted but Mr. Easterly’s wasn’t. So now we have this new City Attorney, and it just kind of feels like someone giving an oversight that wasn’t happening when this first group was coming through.”
Watson was referring to how GMH, who went through the interview and hiring process at the same time as Easterly, would now vet Easterly’s contract.
Gregg’s amendment passed after a second by Bacon and unanimous approval by Council. Then Council voted, 4-1, to hire Easterly as the City’s prosecutor.