East Lansing’s City Council voted unanimously on Tuesday to begin negotiating a contract renewal with the Foster Swift law firm to act as City Attorney. The move signals Council’s general intent to continue to use Foster Swift’s legal representation for both municipal law and prosecution in 54B District Court.
But the discussion revealed some points of dissatisfaction with Foster Swift’s performance as well as Council members’ interest in possibly splitting the City Attorney contract into two parts, one that would cover legal services for advising staff and Council, and the other that would cover prosecutorial services for 54B District Court.
In the end, two Council members — Mayor Pro Tem Jessy Gregg and Dana Watson — were nominated to lead the negotiations with Foster Swift in a motion made by Mayor Aaron Stephens. Earlier in the meeting, Stephens stated his intention to resign as of Aug. 11, which means Gregg will soon be Mayor.
The City’s current contract with Foster Swift is cost-capped at $500,000 annually — with certain services not counting toward the cap — and it expires at the end of September. That contract took effect on Oct. 1, 2020, following the termination of former City Attorney Tom Yeadon’s contract a year ago. Stephens proposed renewing the contract with Foster Swift just one day short of the one-year anniversary of the 3-2 vote to fire Yeadon.
In its contracted role as City Attorney, just as Yeadon’s firm did, Foster Swift handles day-to-day municipal legal work along with civil and criminal court matters for the City, which includes prosecuting cases in the 54B District Court. Mike Homier of Foster Swift had been doing most of the on-camera advising of Council until recently, when his colleague Laura Genovich took over much of it. Robert Easterly of Foster Swift has been acting as 54B Prosecutor, and his work in particular drew praise from Council.
On Tuesday night, Stephens explained that he wanted to start the discussion about renewing this contract well ahead of its expiration, gauge what Council members wanted to see in a renegotiated contract, and appoint two Council members to start on that.
“I thought it would be prudent for us to have this conversation on the Council table so that we could both go for a way to move forward on this item,” Stephens said, “but also do that well in advance of when that deadline is, so we can have enough time to discuss that.”
Following Stephens’ introduction, Council member Lisa Babcock, an attorney by trade, said that she would be in favor of splitting the contract for the various City Attorney roles into two contracts: one for the municipal legal work of the City plus civil court, and another for criminal prosecutions.
Babcock argued that this would give the Council more flexibility in their legal representation and also help clearly delineate what the City is spending on prosecution versus other legal services. Babcock estimated that the contract just for the prosecution portion would be somewhere in the vicinity of $150,000-175,000.
Babcock also noted that to do this contract splitting would likely require the City to issue Requests for Proposals (RFPs) for both of the new contracts and carry out formal bid reviews — something Council did last year before hiring Foster Swift. Babcock added that this RFP process could result in Foster Swift being the City Attorney, still, for both parts.
“It’s not so much a rejection of Foster Swift,” Babcock said. “I’ve been very impressed with some parts of them, but I think separating that contract requires RFPs.”
Gregg asked Babcock if the estimated cost for the criminal law contract ($150,000-$175,000) would effectively count against the $500,000 cap set in the current contract. Babcock didn’t have a definitive answer and said they’d just need to compare the bids that would come in response to RFPs, if they went down that road.
Babcock also expressed interest in having a prosecutorial system with more “diversions,” which could lead to lower costs in terms of prosecutorial services.
Other Council members expressed interest in Babcock’s idea of splitting the contract, particularly in getting a clearer idea of the amount the City spends on criminal prosecutions, and they were definitely interested in solving issues with fewer prosecutions. But ultimately they decided against going forward with a contract split at this point.
Stephens said the split contract intrigued him but that he would need to learn more before supporting it. Council member Ron Bacon shared Babcock’s desire to see delineation of costs but, like Gregg, worried about protecting the total $500,000 cost cap, something Bacon pushed for in the original contract.
Babcock acknowledged it was untenable to both renegotiate and issue RFPs simultaneously. Babcock theorized that other firms that might have applied and been rejected last year would be hesitant to put forth a proposal if the City was at the same time negotiating with Foster Swift.
Gregg suggested that a contract split could be something the City does down the road, and said she thinks that there was room to work with Foster Swift and in negotiating the new contract to enact some changes to prosecutions.
“And if we do end up putting out that RFP, if we do end up splitting up services,” Gregg said, “it’d be much more deliberate and planned and considered.”
As for the work that has been performed by Foster Swift for the City, several Council members expressed concern about the time taken by the firm’s attorneys to get things done or get materials returned to the City. No one had complaints about the quality of work, but Bacon, Babcock, and Gregg all noted issues with delays at one point or another in the meeting on Tuesday.
At Tuesday’s meeting, Council heard a a litigation status report for the first time from Foster Swift. Laura Genovich, attorney from Foster Swift serving as the City Attorney at Tuesday’s meeting, presented.
She explained the absence in the report of at least three ongoing lawsuits by saying her team would only report on the ones in which they are representing the City. One of the lawsuits missing appears to have no designated legal representation for the City since Tom Yeadon’s contract was terminated.
Cost is, of course, a concern as well.
“We do spend a shocking amount on legal advice and I would love to chip away at that somehow,” Gregg said. “Kind of hoping the second year of being our representatives [that] Foster and Swift has learned some background knowledge that maybe some of things could come a little bit faster and some of those hourly rates will not be as high. We can hope.”
Watson pointed out that, given the nature of Foster Swift being a large firm with a bevy of other clients, these slower times might just be normal. She wanted to know if the slower time frame is causing delays for staff, and to what extent.
Along with Watson, Council members all agreed that having significant staff input into the negotiations was a good step to take, since they work with the City Attorney more than Council members do. Stephens asked City Manager George Lahanas to create some system for the City staff to offer input about the City Attorney contract negotiations.
Finally, just before the unanimous vote to appoint Gregg and Watson and begin renegotiating, Stephens acknowledged Genovich.
“Laura, appreciate you being here with us and having to listen for a sec,” Stephens said.
“Yeah, sorry, that must’ve been a little bit awkward,” Gregg said.
“That’s alright, we appreciate the feedback. We want to meet the City’s expectations and we’re looking forward to having a conversation about that,” Genovich said.