Attorney Contract Protects Top Vernon Official’s Tenure

By Elizabeth Hsing-Huei Chou, EGP Staff Writer

Vernon City Administrator Mark Whitworth, whose qualifications were recently called into question by state officials, could potentially be offered a three-year contract thanks to a request made by a candidate for the city attorney position.

Nicholas George Rodriguez, a top pick for Vernon city attorney, has specified he would only work for the city on the condition Whitworth remains on the job. A proposed three-year contract city officials negotiated with Rodriguez states if Whitworth is let got, Rodriguez can also choose to leave the city. Firing Whitworth during the three-year term of Rodriguez’s contract, which ends Aug. 31, 2015, would be considered a material breach of contract.

Vernon’s city administrator position was recently highlighted by State Auditor Elaine Howle as a problem area for the city. Her office released a report stating the city lacks policies setting minimum qualifications for the position, which typically requires formal education and prior experience. At a recent public hearing in Sacramento, Howle said the city should hire a “strong city administrator,” while also noting that other executive leaders, including the finance director, were also hired seemingly without proper attention paid to their qualifications.

Under his proposed contract, Whitworth’s position as city administrator would be re-affirmed, and he would be paid $267,000 a year for a period of three years, ending Aug. 31, 2015. Rodriguez’s contract sets his salary at $252,000 a year for three years, also ending Aug. 31, 2015. If there is a breach of contract in which Whitworth is fired during the three year term, with the exception of during the last six months, both would still be owed salaries for the full three years.

The Vernon city council was set to vote on the three-year contracts for Rodriguez and Whitworth during a special meeting on Monday, July 22. Vernon officials voted to postpone making a decision amid local business leaders’ protests that the timing for approving the contracts seemed rushed. Rodriguez’s and Whitworth’s contracts are scheduled to be brought back on Aug. 7.

Rodriguez, a long-time assistant city attorney in Pasadena, told EGP Tuesday he requested the terms because Whitworth has been part of a “known team committed to reform” in Vernon, and is someone he wants to work with. “I am not interested if there are uncertainties over who will finally move the reform efforts forward or when that might occur” and he feels that a search for a new city administrator would also interrupt ongoing reform efforts.

Rodriguez’s request raised the eyebrows of USC adjunct law professor Michael Jenkins who called it “unprecendented.” Jenkins noted that he has “never seen an attorney contract that was dependent on the city administrator,” and that to him the contract’s terms “immediately creates conflicts of interest” because a city attorney typically only answers to the city council.

Jenkins feels the attorney could potentially lose his independence. “It’s not an arrangement a city attorney typically would find acceptable,” he said.

The proposed contract also specifies Rodriguez “shall report directly to the City Administrator, subject to the direction of City Council,” and while it gives Rodriguez the authority to oversee outside legal services, he is limited by not only the direction of the city council, but also by the direction of the city administrator.

Promises in both contracts to pay three years of “severance” pay in the event they are terminated or there is a material breach, could be in violation of the California government code, which does not allow more than 18 months worth of severance pay, Jenkins added.

Rodriguez responded to these criticisms Wednesday, saying that in the day-to-day procedures he would be reporting to the administrator, but he would not be influenced by the administrator who would have no authority to fire him.

He added the proposed contracts are not final, and says “the same question which you raise about severance has been raised within Vernon” and the city seems to be examining whether the 18-month limit on severance pay applies to charter cities like Vernon.

Jenkins said Rodriguez seems like a qualified attorney, but he has never seen terms like these in the public sector. “The question here is, whose interest does this serve? It does not serve the interest of the public, it serves the interest of the city administrator,” said Jenkins.

Vernon’s Independent Ethics Advisor John Van de Kamp also noted Rodriguez’s request was “unusual” but says “all it does is basically give [Rodriguez] an option” to leave, if Whitworth were to be terminated. Rodriguez may decide to stay, said Van de Kamp.

He added there are ways to deal with instances of conflict of interest if they come up. “I think Rodriguez is cognizant of conflict issues, and he would simply ask someone else to” investigate Whitworth if it were ever necessary.

Jenkins said handling personnel issues related to the city administrator should be part of a city attorney’s duties. “What’s the value of having in-house attorney when you are conflicting him on such an important issue?” he asked.

In 2010, Vernon’s previous attorney Laurence Wiener alerted the city of a possible violation of conflict of interest laws by the city administrator at the time, Donal O’Callaghan. Wiener was in charge of an internal probe of Callaghan, who later pled guilty to hiring his wife to do bookkeeping for the city.

Vernon city officials have yet to officially address Howle’s recommendations about the city administrator position in Vernon, though the city spokesperson Fred MacFarlane said Whitworth has “conducted himself in fine fashion.” Whitworth who had been serving as the fire chief was appointed to fill in as city administrator in 2010 when then city administrator Donal O’ Callaghan submitted to an investigation into possible conflict of interest violations. Whitworth has since been deeply involved in the city’s efforts to avoid disincorporation and to implement reform measures.

According to Van de Kamp, Whitworth “has learned a lot in the last year and has learned quickly, but he has not spent his life at it, he’s been the fire chief.” The city does seem to be looking for an assistant “who is experienced in municipal administration,” he said.

Councilman Michael Ybarra said he was comfortable with the attorney’s request to the city to keep Whitworth. “We didn’t feel that was a problem. We have faith in Mark [Whitworth]… Mark needs to be around to finish the job… if it doesn’t work out, [Whitworth] can be terminated,” he said.

If the city were to terminate Whitworth prior to the last six months of the proposed three-year term, the city would still have to pay the difference in salary to Whitworth. Rodriguez may also choose to leave and the city would also have to pay the rest of his salary until 2015.

Rodriguez says if “controversies that have occurred in the past” were to continue, “there is a chance Vernon will not survive.” He says, “without a strong leader to direct change administratively, a reform attorney can accomplish little,” and Whitworth seems like the right person for the job. “I would never presume to dictate to the Vernon city council who they must hire for any position, especially City Administrator. I can speak only for myself and my own actions,” he said. For him, “there can be no stronger signal to me that Vernon is moving forward… than the three year appointment of Mr. Whitworth as City Administrator.”

According to the negotiated contract, a colleague at Rodriguez’s current employment alerted him to the opening in Vernon, and not anyone associated with the city. Rodriguez has worked for the city of Pasadena for 22 years.

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July 26, 2012  Copyright © 2012 Eastern Group Publications, Inc.


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