Vernon County postpones contract extension for county attorney

VIROQUA, Wis. – The Vernon County Board of Supervisors voted 14-5 this week to postpone an extension of it’s contract with the law firm Abt Swayne for three more years. The county’s previous contract with Abt Swayne Law had expired, but they continue to represent the Vernon County Board of Supervisors and handle county department business, including Human Services.

The vote to postpone action on a new contract was a bit of a surprise since the General Government Committee (Alycann Taylor – Chair, Mary Meehan-Strub – Vice Chair, Mary Bringe,
David Eggen, Ole Yttri) had forwarded the resolution after taking proposals for legal services, and voting to approve the offer to Abt Swayne Law following a closed session on Dec. 15. The General Government Committee Chaired by Supervisor Alycann Taylor had been tasked with reviewing the county contract for legal services and to determine if the county should extend it’s contract with Abt Swayne.

The General Government Committee had discussed what to do about legal services though the summer and into fall. The committee sought feedback from county board members and department heads over the last several months, and decided to put out a “request for proposals” (RFP) for legal services in November. The committee received two proposals, one from Abt Swayne of Westby and the other from Johns Flaherty & Collins of La Crosse. The committee had a discussion about how to proceed with those proposals on Dec. 6.

The two proposals did have some differences. Abt Swayne was offering services at $150 and hour and Johns & Flaherty was $170 per hour. Johns Flaherty & Collins did would also add additional fees for travel time.

There was some discussion by the committee about the ability to hire outside counsel for specialized representation and some questions about whether or not the previous contract with Abt Swayne had restricted that.

“My personal opinion, I think that had gotten some legs. That was the stated expectation but I can’t find that anywhere in the previous contract,” said Taylor.

Corporation Counsel Nikki Swayne said that policy was added previously by the committee to require department heads get committee approval before seeking outside counsel, but there was no restriction in the proposed new contract from either firm.

“I just want to make sure that that’s clear,” said Supervisor Mary Bringe. “Because we have been limited in the past I don’t want to see that happen again.”

“I think that’s fair I think it’s a good conversation no matter what direction we go,” said Taylor. “I do wonder if some of our limitations was self-imposed without asking. Now all we can do is go forward.”

Taylor asked the committee if they were ready to make a decision on the two proposals. Supervisor Dave Eggen said he wanted to do face to face interviews with the two firms.

“I do want to just state for the committee, and with Nikki at the table that the feedback that we provided Nikki (Swayne), Mary (Meehan-Strub) and myself, for all of the feedback that was received by those who participated in follow-up conversations, and with Nikki, there has seemed to be an improvement, a marked improvement with the areas that we talked about where people had concern,” said Taylor. “And I wanted to be able to say that to you because I don’t think it’s fair not to state that. There’s been the work that Human Services has received, and timeliness has been noted to be a difference. And so I wanted to be able to share that. Thanks for taking that feedback because that’s not always easy to hear and you received it well.”

Supervisor Mary Meehan-Strub about a stipulation in the Johns Flaherty & Collins proposal that they agreed to respond to Human Services calls within 24 hours. Meehan-Strub asked Human Services Director Jill Bender if that was a sufficient response time for her department.

“Probably not,” said Bender.

Bender gave examples of cases in the department that need immediate attention, like mental health cases that are sometimes a danger to themselves or the community that often need immediate attention as they work with law enforcement and the court system.

Some on the committee questioned if the attorneys listed in the Johns Flaherty & Collins proposal had experience in the kinds of Human Services cases they county handles. Taylor pointed out that the bulk of the legal expenses the county incurs are from those kinds of cases.

“I can affirm that the lions share of the work I do on behalf of the county is human services,” said Swayne. “And then also I can say that Human Services has as Jill (Bender) alluded to, the most time sensitive needs that really relate to people. It’s life or death matters that we could lose jurisdiction on a mental commitment if I don’t respond swiftly enough and get a court hearing established, proper service within 72 hours of that emergency detention, as an example of the critical timeliness of the response, and availability to be in court in person as well.”

The committee asked Bender to participate in the process of interviewing both firms.

“I’m more than willing to participate if that’s the steps that you take,” said Bender. “I think you’ve already expressed our gratitude towards Nikki, most recently, and the changes that they made and the responsiveness that our department has. I would just add that, just keep in mind that any new role as a Corp Counsel, I mean, we learn on a daily basis different things that occur that, we’re a small County, so sometimes they don’t always occur often, and so the communication back and forth between my department and Corp Counsel is frequent. Because of that, there’s a big learning curve with doing County Corporation Counsel. So I would just try to make sure that we’re not losing sight of that.”

“So are you speaking to like the institutional knowledge that we have in current Corp Counsel?” asked Taylor.

“Yes,” said Bender.

Swayne pointed out the proposal Abt Swayne offered included an option for a second three year term at the same $150, or essentially six years at the same per hour rate. She also cautioned about signing onto another proposal that included travel time, not only because of cost because of availability.

Taylor asked if there were questions beyond what was in the proposals that required an interview.

“That’s what an interview is supposed to be for, to gauge the personality that you’re inviting in,” said Eggen. “Some questions that might come up that we haven’t even thought about yet. I think it it’s been quite a lengthy time since we did this and we owe it to the county to do it right .”

County Administrative Coordinator Cassie Hanan said switching firms could mean the loss of institutional knowledge.

“I’ve worked with both (firms),” said Hanan. “And honestly with as many new staff we’ve as we have, and as much turnover as we have, I really appreciate institutional knowledge and you know having that resource. I don’t believe I have enough institutional knowledge to guide a new firm along with the county process.”

Hanan said she did have concerns with Human Services with turnaround time with a firm that is not in the county. Meehan-Strub pointed out of all of the previous municipal clients that Johns Flaherty & Collins worked for, none of the them were counties.

“If we go ahead and have an open interviews we can ask those pointed questions,” said Supervisor Dave Eggen “We only have two applicants. I know nothing about Johns Flaherty & Collins but I’d like to find out some more information.”

Taylor asked Swayne about concerns that were raised to her by others at the county or in her discussions with constituents.

“Okay Nikki, I’m going to ask you a direct question because it’s being posed and people aren’t asking it,” said Taylor. “Do you feel like there are conflicts of interests that you have in the county that need to be addressed, or are they not an issue with the work that you do?”

“I would go with the latter,” said Swayne.

“For me institutional memory is huge,” said Taylor. “But I also understand like going through a process to make sure that everybody’s questions have answered. And they feel like it’s been a fair and and full process because we haven’t done that. I also tend to to think that is comprehensive then and nobody can say that we didn’t go through that step.”

Supervisor Mary Henry, who is not on the General Government Committee but has attended all their meetings, said she would like to see county legal services split with Abt Swayne handing some departments but not the whole county.

“I would like to suggest that one attorney covering all the county needs,” said Henry. “It is a very difficult task if you look at attorneys they specialize in different things. And if Human Services, in their opinion, and theirs is important, if they feel like Nikki’s doing a a a big Improvement in there then have her for that. But I also feel that there is conflict of interest and I served on committee that it was very apparent and it hindered what happened on many outcomes. That we could use an attorney that is more specialized in employee law. Removing the fact, or even the fact of our former administrator in that contract that we had to pay out. So whether you agree with me or not, our past does show some things in the last couple of years that have been major issues. And maybe we don’t have somebody that covers the wide sweep but more specialized, and has shown improvement in that area, and we look at Flaherty for other needs. In my opinion.”

The contract Henry was referring to was a contract with former County Administrator Cari Redington that the county ended unilaterally in April when they changed the position to a county administrative coordinator. Redington’s contract as written ran through the end of the year, but by unilaterally changing the contract without renegotiating with Redington, the county was forced to pay Redington for the entire year even though the county essentially ended her position in April. You can read our previous story about that issue here.

The committee did agree to do the face to face interviews with both firms and then met again on Dec. 15. Following a closed session at that Dec. 15 meeting, Meehan-Strub read a motion in open session on what the committee discussed in closed session.

“Motion to present to the County Board Abt Swayne for Vernon County Corporation Counsel with the understanding that Nikki Swayne is the primary Corporation Counsel for Vernon County, and with the understanding that Vernon County, through the administrative coordinator, may seek outside counsel as needed.”

After receiving a second, that motion passed on 3-1 vote with Taylor, Meehan-Strub and Supervisor Ole Yttri all voting in favor, and Supervisor Eggen voting no. Supervisor Mary Bringe was absent from that Dec. 5 meeting.

Below is the the resolution that went to the county board floor on Dec. 21.

At that Dec. 21 board meeting Attorney Brian Weber with Johns Flaherty & Collins attended spoke during the public comment potion of the board of supervisors meeting. Weber stated if his firm was awarded the contract to represent the county he and one other attorney would be assigned to the county to increase efficiency, and they would be willing to commit to capping their service at $130,000, which is what the county budgeted for 2024. Weber said in looking at previous county expenditures the county has spent between $114,00 and $148,000 per year for legal services.

Taylor introduced the resolution with an explanation of the process to get to the choice the committee made.

“We took the opportunity to hold listening sessions, invited all department heads and Board of Supervisors to come discuss what is working well with the existing services, and what’s not working well,” said Taylor. “And then that feedback was shared with attorney Swayne. Which I appreciate, and changes were implemented and made to address the concerns that were presented. So in discussion with General Government, to land on the decision today to proceed forward was to make sure we implemented in a new contract some things identifying Abt Swayne as the primary attorney for the county. Also, there was some understanding and I don’t need to get too far in the weeds, but there was an assumption that the county could not seek outside legal counsel for issues other than Abt Swayne, and in this new contract that is cleared up that absolutely, if there is need that we could seek a different attorney opinion the mechanism in place for doing that.’

“I appreciate those who showed up for those listening sessions,” continued Taylor. “And who offered feedback because it’s really hard to make effective change if people don’t actually voice their concerns. So to all the department heads that showed up and to the couple of Board of Supervisors that showed up, I just want to appreciate that and I do want to appreciate Nikki’s willingness to hear the feedback, because that’s not always easy either.”

After bringing the resolution to the floor for a vote, Supervisor Rod Ofte immediately made a motion to postpone a vote.

“So I guess a few questions first of all,” said Ofte “I’ve heard a lot of rumblings even from General Government about concerns about the resolution not being completed, but personally a ton of respect for attorney Swayne, solid person, and no qualms legally. My concern is always capacity, because I’ve sat through way too many meetings, I think Nikki’s got that, she’s super hard working person, but I was hoping a resolution for legal services would solve capacity. I haven’t heard any answers. So I guess I’m hearing rumblings about additions, corrections, to the resolution and also not really understanding capacity. To judge something as critical as this by an hourly wage, I think is incomplete. This is really a service, it’s so complex there’s efficiency involved. So just to do that blindly, I guess, I would like to make a motion that we postpone the vote today, and and send it back to General Government to kind of get a more complete resolution.”

“I would need more clarity on what you’re asking,” said Taylor. “But I also would like to, if the assumption is made that this decision from general government had to do with the monetary amount, that was very little to the, and other committee members please jump in, what was discussed after seeking feedback also from our administrative coordinator is there was a concern with having new people in a leadership position, administrative coordinator being new, and Bobbi’s (Johnson-finance director) position, and human resources, that there’s a lot of longevity and institutional memory that would leave this position at this time. So that was a primary decision making as to why it seemed important to keep this going knowing that we had safeguards in place.”

Taylor explained that the provision in the contract to allow for seeking other legal services was also a factor in the decision.

“But I’ve heard twice now that there’s this assumption that the decision was based on a dollar amount,” said Taylor. “And that really wasn’t part of the decision making metrics.”

“I’m not saying it was the deciding factor but even you were talking now about fall back alternatives which I don’t see in the wording,” said Ofte.

“It’s in the contract,” said Taylor.

“My second would be capacity,” said Ofte.

“How would we address that?” asked Taylor.

“You could have service time issues,” said Ofte. “You could have turn around time targets. You could have max rates.”

“So that was all in the RFP and in the contract,” said Taylor.

“So I’ll throw those two out to be addressed,” said Ofte. “Which I don’t think are, and leave it to the group for discussion.”

The motion to postpone and send the resolution back to General Government was seconded by Eggen and opened for discussion.

“I have discussion,” said Taylor. “Everything gets bounced back. If you guys want to discuss and make a change on what you want then let’s do it right now. Because we’ve had open sessions. We’ve had opportunity for people to come to General Government. We’ve asked for people to come and you didn’t come. So now you’re gonna bounce it back to us to do it over. I don’t understand that. If we have issues, we’re all together, let’s do it.”

Supervisor Henry said she did have issues to bring up with the proposal.

“I have come to every gall darn meeting and it’s been a lot,” sad Henry. “And some of those meetings are two meetings in one meeting, which I have an issue with. General Government gets dumped on everything. I totally agree with you on that. But I have brought up, I believe there is conflict of interest. We don’t have a lot of opportunity for other opinions when needed. And I do have issue with some of the things that have gone down in the last two years.”

Henry said there have been adjustments that have improved service with the human services issues but then proposed splitting legal services that would contract human services work with Abt Swayne and the county board services with Johns Flaherty & Collins.

“I have recommended at that meeting,” said Henry. “And I’ve been vocal about it, because law is very complicated and just about everybody anymore is very specialized in some of the issues that we’ve had. It doesn’t all just fall on Nikki. There’s multiple blame to go around for everybody. Being misinformed leadership, whatever. I am suggesting that we use Johns and Flaherty as our Corp Counsel. …..I’ve asked multiple times how much have we spent in legal fees because it’s been a lot. Because it’s been bounced back to General Government so many times, and those meetings are double meetings for the majority of the time, so redoing mistakes or errors or contracts, whatever. It’s been a lot. My suggestion in this resolution is that we make a friendly amendment that Johns and Flaherty is our Corp Counsel and Nikki is human services.”

“That was my suggestion as well,” said Eggen. “That we get a stable of attorneys, with 17, for $20 more an hour. It was kind of a no brainier that we should certainly consider that. Nikki Swayne has done a wonderful job but she’s pretty thin there on that end. As far as human services, that’d be great. Leave it up to human services to contract with whoever they want.”

Taylor said the committee would need to reconsider the proposals under that scenario since the bulk of the legal services are in human services.

“You’ve got people on your own committee suggesting reviews,” said Ofte. “A caveat would be address the capacity issue, and these other two things that even from your own committee were not clear, and they’re not in the agreement. And I’m not going to solve it for you right now, but have that debate and have the right people there Alycann.”

“I’m fine with taking it back,” said Taylor. “But this is often though what happens. Like, there is not a clear path on exactly what you want. How am I going to address capacity? Explain that to me. You want a percentage?”

“Happy to come to the meeting,” said Ofte.

“Great,” said Taylor.

Supervisor Bringe (who is on the General Government Committee) said she agreed the resolution needed to go back to the committee.

“We have to work on a few of these issues because the things that came up, I have another issue too,” said Bringe “So I think we have to look at it again, that’s my feeling.”

The board voted to send the resolution back to committee on a 14-5 vote with Supervisors Beitlich, Taylor, Yttri, Schweiger and Wilson voting no.

The next General Government Committee meeting will be on January 10.