HomeMy WebLinkAboutMINUTES - 08142001 - C.22 YO: BOARD OF SUPERVISORS, as governing board of Contra Costa Flood Control &Water
Conservation District
FROM: SILVANO B. MARCHESI
County Counsel
DATE: August 14, 2001
SUBJECT: Approval of Contract for Specialized Professional Services
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S)
APPROVE and AUTHORIZE the County Counsel or designee to execute,on behalf of the Flood Control
District (Clean Water Program), a contract for specialized professional services with Downey, Brand,
Seymour & Rohwer LLP and a letter waiving potential conflicts.
FINANCIAL IMPACT
No impact on General Fund. Legal services will be funded by the Contra Costa Clean Water Program
(Flood Control District,County,and Cities)from stormwater utility assessments levied in incorporated and
unincorporated areas of Contra Costa County.
BACKGROUND/REASONS FOR RECOMMENDATIONS
An administrative mandate lawsuit has been filed against the Contra Costa Clean Water Program and its
member entities(Flood Control District, County, and Cities)challenging the NPDES permit issued to the
Program: San Francisco Baykeeper v. State Water Resources Control Board, et al.; Case No. C01-
01624. The lawsuit alleges that the permit violates federal and state clean water laws. The law firm of
Downey, Brand,Seymour&Rohwer LLP assisted the Clean Water Program with the permit appeal before
the State Water Resources Control Board and is veryfamiliarwith the permit conditions and other issues.
The Public Works Department (Clean Water Program staff) and the County Counsel believe that the
services of Downey, Brand, Seymour&Rohwer LLP will be of assistance to the County Counsel's Office
in defending the lawsuit and recommend that they be retained. To waive any potential conflicts in
representation, it will be necessaryforthe County and the Flood Control District to sign the attached conflict
letter.
CONTINUED ON ATTACHMENT: _YES SIGNATURE
lit, dL
RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD O ITTEE If
f--APPROVE OTHER
SIGNATURE(S).
ACTION OF BOAR N tUtUST t4200!L- APPROVED AS RECOMMENDED X X OTHER
f
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
XX UNANIMQU�eBSENT ) AND ENTERED ON THE MINUTES OF THE BOARD
AYES: L}/(J NOES: OF SUPERVISORS ON THE DATE SHOWN.
ABSENT: ABSTAIN:SITPERIfTSOR GERBER
ATTESTED: JOHN SWEETEN, CLERK OF THE BOARD OF
Contact: Don Freitas(925-313-2373) SUPERVISORS AND COUNTY ADMINISTRATOR
cc: Public Works(Clean Water Program)
County Counsel
County Administrator ATTESTED AUGUST 14 2001
,
Auditor Controller
Cities(Via Public Works) BY DEPUTY
JLL 25 '01 05116PM DoWNEY BRAND SEYMOUR & ROH•ER P.5
ATT00.NECS 1.LP
KATHARINE B WAGNER
E�PM-If17W W6
SSS CAPITOL MALL
iom FLOOR
SACRAMENTO.CA 99811-1686
T111MONt 1916)au-0131
FAX MG)441-40Z
July 25,2001
ATTORNEY-CLIENT PRIVILEGE
Donald P.Freitas
Program Manager
Contra Costa Clean Water Program
255 Glacier Drive
Martinez,CA,94553-4897
David F. Schmidt
Contra Costa County
Office of the County Counsel
651 Pine Street,90'Floor
Martinez,California 94553-1229
Re: Updated Waver of Potential Conflicts in Connection with Contra
Costa Clean Water Program Representation:
Dear Mr. Freitas and Mr. Schmidt:
As you know,on August 29,2000, we provided to Mr. Freitas and the Program
and participating permittees("participating entities')under the Program's
municipal stormwater permit executed acknowledgments of disclosures and our
rcqucst for waivers of potential conflicts of interest,in relation to our work on the
response to the petitions before the State Water Resources Control Board
challenging the permit.. We have now been asked to represent the permittees and
the Program in connection with WaterKeepers of Northern California's petition
for writ of mandate in Superior Court pursuing its further appeal, after the State
Board refused to take up the appeal at the administrative level.
This letter simply supplements our August 29,2000 letter to expressly extend the
disclosure and waivers to the work on the nutter in Superior Court,which was not
expressly mentioned under that earlier letter. Our new work would relate
specifically and exclusively to representation of the group in the writ of mandate
W�2,002
JIJL 25 '01 05:16PM DOWWY BRAND SEYMOt1R & ROHWER P.6
Donald P. Freitas
David F. Schmidt
July 25, 2001
Page 2
proceeding in Superior Court. The conflict disclosures below-are the same as
were contained in our previous waiver letter.
As we have previously discussed,our firm represents a number of individuals,
private companies,.and public agencies that operate within Contra Costa County.
Under the rules of professional conduct that govern attorneys in Califomia, we
cannot undertake to represent a client if that client's interests may be adverse to an
existing client,unless both clients agree to such representation in writing. Due to
existing potential conflicts identified in this letter and the potential for future
adverse positions of our clients and prospective clients in various matters
involving the substantial number of municipalities constituting the participating
entities, we have felt compelled by professional ethical considerations to obtain as
a condition to our retention in these matters a waiver by all participating entities
of potential conflicts as described in this letter. In addition, we are simultaneously
seeking a parallel waiver of potential conflicts from Reclamation District 800, due
to the potential conflict noted below. If each participating entity is in agreement
with the terms of this letter, we request that each sign a copy of this letter and
return it to our office as soon as possible.
Clients represented by Downey Brand regularly have occasion to deal with Contra
Costa County and other participating entities in the Program in the course of their
normal business. Our review of the matters that we are handling for these clients
indicates that none'of our existing clients have taken a position adverse to the
participating entities in connection with the BayKeeper petition, and none is
engaged currently in litigation against a participating entity. On other matters,
however,our clients have at present(or may have in the future) direct conflicts
with participating entities. Specifically,we see the following current or potential
conflicts:
Reclamation District No. 800 (Byron Tract): RD 800,a client of Downey Brand
for many years,has been working with County staff to try to develop a solution to
the siltation of F-F Ditch, which runs from the Brentwood area into Discovery
Bay. This siltation created a serious need for dredging of waterways under the
RD 800's jurisdiction and so has been imposing significant costs on RD 800 and
its constituents. RD 800's position is that the County and/or the Contra Costa
Flood Control.District are responsible for curing this problem. The County and
Contra Costa Flood Control District appear to disagree.
9342,30.2
DOWNEY BRAID SEYMOUR&ROHWBR 1.rP
JUL 25 '01 05:17PM DOWWV 13RP14D SEYMOUR & ROHWER P.7
Donald P. Freitas
David F. Schmidt
July 25, 2001
Page 3
Other types of matters that could arise that may involve interests adverse to one or
more participating entities, by way of example„ would be water rights issues,
property issues, contract issues, land use permitting and entitlement issues, and
other permitting of new or existing projects within the jurisdictions of the
participating entities. In these matters, our clients may be adverse to a
participating entity, and may bring or be named in administrative or court
proceedings opposite a participating entity. In these matters, we would have to
zealously represent.the interest of our clients adverse to the participating entity,
and would intend to do so,despite our representation of the participating entity in
the proceedings relating to the municipal NPDES stormwater permit.
We believe that the zealousness and commitment with which we would represent
each participating entity in the stormwater permit related proceedings would not
be impaired by such separate proceedings in which we represented others adverse
to the participating;entity, due to the specialized legal nature of the stormwater
permit related proceedings.* During our representation of the participating entities
in this matter, we would not accept representation of any other client in matters
adverse to the Program or a participating entity directly relating to the Program's
stormwater NPDES permit, except with new, appropriate written waivers from the.
participating entity;involved.
By signing below, each participating entity agrees that it understands and waives
all potential conflicts raised by, our representation of other clients as described
above. We will be free to provide legal advice to these clients on any course of
action,including(but not limited to) filing and conducting litigation against the
participating entities,-in matters other than those relating directly to the Program's
NPDES stormwater permit. Members of the Program agree that they will,not
object to our representation of existing and/or future clients on such matters where
those clients are adverse to members of the Program and will not seek to
disqualify our firmfrom any such representation.. In addition and in particular, the
participating entities agree that they waive all conflicts associated with our present
and future representation of RD 800, both as that representation relates to F-F
Ditch and other matters.
#3QI30.z
DOWNEY BRAND SEYMOUR&ROHWER LIP
i
JIJL 25 '01 05-17PM DOWW'e BRAND SEYMOUR.& ROHWER P.8
Donald P. Freitas
David F. Schmidt
July 25, 2001
Page 5
Dated: City of Antioch
By: .
Its:
Dated: City of Brentwood
By:
Its:
Dated: City of Clayton
By:
Its:
Dated: City of Concord
By:
Its:
Dated: City of Danville
By:
Its:
Dated; City of El Cerrito
By:
JUL 25 '01 05:17PM DOWNEY BRAND SEYMOUR & ROH ER P.9
i
Donald P.Freitas
David P. Schmidt
July 25, 2001
Page 4
If you or any represcntativc of any participating entity has any questions, please
do not hesitate to call me.
Very truly yours,
Katharine E. Wagner
WValver and AcceStance
By signing below,each participating entity agrees that it understands and waives
all potential conflicts raised by.our representation of other clients described
above.
Members of the Program agree that they will not object to our representation of
existing and/or future clients in such matters where those clients are adverse to
members of the Program and will not seek to disqualify our firm from any such
representation. In particular,the participating entities agree that they waive all
conflicts associated with our present and future representation of RD 800,both as
that representation relates to F-F Ditch and all other matters.
i
Dated: Contra Costa County
By:
Its:
Dated: Contra Costa County Flood Control and
Water Conservation District
By
Its:
DOWNEY BRAND SEYMOUR Qt ROHW$R U2
JUL 25 '01 05: 18PM DOWNrY BRAND SEYMOUR & ROHWER P.10
i
Donald P. Freitas
David F. Schmidt
July 25, 2001
Page 6
Dated: City of Lafayette
By:
Its:
Dated: City of Martinez
By:
Its:
Dated: City of Moraga
By.
Its:
Dated: City of Oakley
By:
Its:
Dated: City of Orinda
By:
Its:
Dated: City of Pinole
By:
Its:
t342130.2
DOWNEY BRAND SEYMOUR&ROHWER LLP
JUL 25 '01 O5:18PM M*4EY BRAID SEYMOU2 & ROH.ER P.11
Donald P. Freitas
David F. Schmidt
July 25,2001
Page 7
Dated: City of Pittsburg
By:
Its:
Dated: City of Pleasant Hill
By:
Its:
Dated: City of Richmond
By:
Its:
Dated: City of San Pablo
By:
Its:
Dated: City of San Ramon
By:
Its:
Dated: City of Walnut Creek
By:
Its:
0362,702
DOWNEY BRAND SEYMOUR Jt ROHWER LLP