HomeMy WebLinkAbout2013-01-02 PACKET 04.F.REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA
MEETING ITEM #
DATE 1/2/2013 •
PREPARED BY : Administration
ORIGINATING DEPARTMENT
Ryan Schroeder
DEPARTMENT HEAD
COUNCIL ACTION REQUEST
Consider renewing the Prosecution Services Contract with F. Joseph Taylor, P.A. for 2013 -
2015.
STAFF RECOMMENDATION
Renew the contract.
BUDGET IMPLICATION
BUDGETED AMOUNT ACTUAL AMOUNT
ADVISORY COMMISSION ACTION
DATE
REVIEWED
APPROVED
DENIED
❑ PLANNING
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❑ PUBLIC SAFETY
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❑ PUBLIC WORKS
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❑ PARKS AND RECREATION
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❑ HUMAN SERVICES /RIGHTS
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❑ ECONOMIC DEV. AUTHORITY
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SUPPORTING DOCUMENTS
® MEMO /LETTER: Memo from Ryan Schroeder.
❑ RESOLUTION:
❑ ORDINANCE:
❑ ENGINEERING RECOMMENDATION:
❑ LEGAL RECOMMENDATION:
® OTHER: Attachment.
ADMINISTRATORS COMMENTS
City A inistrator D e
http: / /intra net/ city -cou nci l /cou nci l -actio n. doc
City of
Cotta Grove
J Minnesota
To: Honorable Mayor and City Council Members
From: Ryan R. Schroeder, City Administrator
Date: December 20, 2012
Subject: Renewal of Prosecution Services Contract
The City has contracted with Joe Taylor for receipt of Prosecution Services since 1997. Mr.
Taylor had previously worked on Cottage Grove cases, since 1990, while with another law
firm. As has been the practice since 1997 we are recommending renewal of the existing
contract per the attachments for another three year term.
From time to time cities will bid out consulting contract work, including that of legal services, to
ensure that we can provide certainty to the public of effective management of the dollars spent
on contracted services. Going into the market requesting bids for prosecution services is an
option which the Council has. However, we believe that we have, in the Taylor law firm, one of
the top prosecutors in Washington County. We believe we can assure the Council and the
public that we are receiving as good, if not better service for the expenditure from our current
situation than we would receive from a different purveyor of legal services. Therefore we are
recommending against testing the market.
Enclosed, please find a very complete summary of the history of prosecution services over the
past fifteen years, the challenges faced, and in many cases overcome during that period, and
challenges moving forward. Also enclosed are the revenue and expense numbers associated
with prosecution services and the proposed contract for Council consideration.
Since 1998 we have entered contracts with the Taylor law firm with an hourly rate with a not to
exceed cap. This has allowed us to effectively budget and in at least two of the past fifteen
years the fee cap has saved the City funds from what would have otherwise been spent.
For the 2013 -15 contract period Mr. Taylor has proposed freezing his hourly rate at $85 for the
first two years with an increase to $90 in the third year. Additionally is recommended a cap on
criminal prosecution total costs of $139,400 in 2013 (down from the 2012 cap of $142,800)
with an increase in that cap to $142,800 in 2014 (same as 2012) and $154,800. It is worth
noting that total costs have been below the annual fee cap since 2006. That same result is
anticipated for 2012 as the year closes out.
In addition to criminal prosecution the Taylor law firm provides service to the City in the DWI
forfeiture arena which is paid for through forfeiture fees collected. From time to time Mr. Taylor
is called upon for miscellaneous housing or code services as well although those expenses are
typically de minimus.
Council Action: By motion authorize a contract for prosecution and related services with the
Taylor Law Firm for the contract years 2013 -2015
T'. JOSEPHTAYLOR P.A.
F. Joseph Taylor
ATTORNEY AT LAW
US Bank Building Administrative Assistants
7200 - 80th Street South
Cottage Grove, Minnesota 55016
(651) 459 -6644 Phone
(651) 459 -7521 Fax
Shari Olmstead
Cheryl Kinney
MEMORANDUM
TO: Mayor Myron Bailey
Councilmember Derrick Lehrke
Councilmember Justin Olsen
Councilmember Jen Peterson
Councilmember Dave Thiede
FROM: F. Joseph Taylor
DATE: November 9, 2012
RE: I. Prosecution Services Update
II. New proposal for Prosecution Services for 2013 -2015
Dear Mayor Bailey and Councilmembers:
This Memorandum to Council has a two -fold purpose: First, to inform Council as to the
status and issues surrounding prosecution services as we approach the end of this current
three year contract. Second, I have included, for Council consideration, a new proposed
three (3) year agreement for prosecution services covering years 2013 through 2015.
Background Cases involving the Cottage Grove prosecution calendar were first heard
at the satellite facility first located in St. Paul Park and then at the Cottage Grove Armory
building. In the mid- 1990's Court Administration moved all "Jury Trial" settings to the
Stillwater Court facility. They made this move to allow for more efficient management of
jurors summoned for jury duty and to avoid having to send a group of prospective jurors
from Stillwater to Cottage Grove. Having Court in Cottage Grove meant no travel time for
myself, or for the Officers and other Witnesses called into Court.
Then in the early 2000's discussions began regarding future Court facilities for the County.
After a significant lobbying effort by the Washington County Bench and others the
Washington County Board decided to locate all Court related matters in Stillwater and to
eventually close the satellite Courthouses in both Forest Lake and Cottage Grove. The
centralization of Courts was to occur even though the Board voted to build a new County
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MAYOR BAILEY AND COUNCILMEMBERS
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Service Center in Ravine Park. The Forest Lake Court closed in June, 2005. Cottage
Grove Court closed its doors on June 30, 2008. (The new Courts building in Stillwater
opened on August 30, 2009.) As of July 1, 2008, all Cottage Grove cases are heard in
Stillwater.
After the facilities decision was made, the State of Minnesota then moved in and took over
operation of all Courts in the State. With the State of Minnesota having its own financial
difficulty there have been funding cuts to Court Administration staff and other resources
associated with the Courts. Some of these cuts, such as to the Public Defender's office,
has been well publicized. There has also been a significant push to expand the "payables"
list. (These are citations issued to Defendant's where they can simply plead guilty by
paying the fine and they avoid having to appear in Court.) These changes and their impact
on prosecution service I will discuss in more detail below.
As with my previous Memo's and Updates, I like to provide Council with numerical data to
help illustrate all that is involved in both providing current prosecution services to the City
and in predicting services that will be needed in the future including my process in
determining an appropriate "fee cap ". As noted, this data includes prosecution information
going as far back as 1986. (1 started working on Cottage Grove cases in 1990. 1 had my
first contract for prosecution services with Cottage Grove in 1997.) The data is broken
down to provide Council with insight on prosecution case volume, the time and fees I
charge the City to service these prosecution files, and finally, the revenue collected by the
City through the imposition of Court fines. You will find this data in an "Exhibit" style format
and attached to this Memorandum as Exhibits A, B, C and D.
As to my proposed Agreement for Prosecution Services, I have mirrored our previous
Agreement to provide services at an hourly rate with an annual fee limitation (fee cap). I
am aware that some of our neighboring Cities now operate on "flat fee" arrangements
(Newport and Woodbury). Operating on a flat fee arrangement would most certainly save
me time in the form of record keeping, time entry, etc.. but, I believe this hourly rate
arrangement with an overall fee cap to be in the best interest of Cottage Grove. The City
pays me for the time I spend attending to Cottage Grove prosecution matters and City Staff
can still implement a budget for these services. As we find new ways to be more efficient
or otherwise cut time and expense, the City stands to benefit, ie. the anticipated fees for
2012 are estimated, at this time, to be approximately $10,000 under the current fee cap.
In 2011, 1 was $12,877 under the fee cap for the year.
PROSECUTION SERVICES UPDATE
In predicting future time necessary to handle prosecution services for the City of Cottage
Grove I look at three primary areas: first, I look at changes and /or trends in our overall case
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MAYOR BAILEY AND COUNCILMEMBERS
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load; second, I look at Court Administration and how they have set up the Cottage Grove
prosecution calendar, now as well as proposed changes to future Calendar plans; and
finally, I closely monitor both Legislative changes in the law as well as case law decisions
derived from our Appellate Courts. I will address each of these areas below.
A. Cottage Grove Caseload and Fine Revenue collected:
Hours and Fees I have attached, as Exhibit "A ", page 1 a Prosecution Contract
Summary This Summary shows the annual and monthly hours I have billed for
prosecution services. We have been billing the City an "average" between 120 and 140
billable hours per month since 2004. This works out to be around 1,500 to 1,600 billable
hours annually to service the Cottage Grove prosecution case load.
The Summary also depicts attorney fees paid by the City. In 2010, we had an average
monthly billing of 132 hours. Then in 2011, 124 hours per month.. In 2012, we are
averaging around 130 billable hours each month. In sum, we have come in under the fee
cap limitation for each of these contract years. In 2010, we were $1,248 under the cap
amount. In 2011, $12,877. And for 2012, 1 am predicting around $10,000 under the cap.
As you will see below, the new proposal reduces the fee cap by 2.5% for 2013. The 2014
fee cap would be the level it is at today.
City Prosecution Revenue Exhibit A. page 2 , depicts "Prosecution Revenue" collected
by the City on an annual basis. Cottage Grove receives 1/3 of "fine revenue" collected
from Cottage Grove prosecution cases. Cottage Grove also receives 100% of all parking
violations and 50% or more share of prosecution costs collected. For 2010, the City
received from the Court $200,259.33 in prosecution related revenue. For 2011, the City
was paid $191,311.67. And for 2012, 1 am predicting a little lower amount, $170,000.00.
My theory on why we have seen a dip in "Prosecution Revenue" is two -fold: First, our
struggling economy and its affect on our Defendants. I see more and more Defendant's
claim poor financial circumstances, including being without employment. And, as a result,
see our Judges imposing lower fines overall.
Second, is the lack of any serious effort on the part of the Courts at "collection ". Our Court
Administration in Washington County is now being run by the State. Previously,
Washington County had responsibility for Court operations. They were more aggressive
in collecting fines. In the last decade, they have utilized the services of a
"screener /collector" to arrange for payment of the fines. This person would meet with the
Defendant immediately following his or her sentencing. The County would bring the
Defendant back into Court for nonpayment of a fine. This would occur in the form of a
"probation violation ". The first positions cut from Court Administration due to the funding
issues were the "screener /collectors." The Court terminated the positions of the people
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responsible for setting up payment plans and collecting the fines. And now, since the State
has taken over Court operations, fine revenue is allocated back to the State general fund.
In other words, there is no incentive for our Courts to insure that these fines are ever
collected. Thus, at present, when the Defendant fails to pay his or her fine, the matter is
simply referred to a "collection agency ". As a consequence for the Defendant's non-
payment, the State may suspend the Defendant's driver's license until paid. I suggest that
this approach does not bring about the same incentive to pay as, for example, a "probation
violation" and the bringing of the Defendant back to Court to face further sanctions
including the possibility of jail.
Efforts to Increase Revenue A few years ago I had discussions with Chief Woolery on
what we can do to try to increase fine revenue generated by prosecution related matters.
We agreed to modify our past practice on how we handle Petty Misdemeanor cases,
including traffic violations as well as some low level Misdemeanor offenses. Previously we
would be seeking a plea with a fine and other possible consequences. The City would
receive its share; 1/3 of the fine collected. The State kept 2/3 as well as the $85.00
surcharge. The Defendant was convicted of the offense, and if it was a traffic matter, it
would be certified to his or her record. Now, after taking into account various
circumstances including their past record, we agree to "Continue the matter for Dismissal"
for a specified period of time and then direct the payment of "prosecution costs" instead
of a fine as well as other possible consequences. The Court keeps the first $40.00, the
City receives the balance. For example, on a case that would involve a $200 fine,
previously the Defendant would be convicted and have to pay $285. The City would
receive $66 and the State would get the balance, the $134 fine and all of the $85
surcharge. If I "Continue" the matter without a plea and I impose prosecution costs, the
State receives $40 and the City keeps the balance of $160. The Defendant ends up
saving the surcharge and avoids a conviction. In my example, the City comes out $100
ahead.
With this change in our "negotiation practice" we have seen "prosecution costs" rise from
about $20,000 per year to between $50,000 and $70,000 per year. This has been a
significant help in offsetting the drop in fine revenue that is collected by the State.
Arraignment Settings and our Hearing Officer Program I have written previously about
our efforts, since 1996, to attend the Cottage Grove Arraignment calendar. These
appearances do add to my "in- Court" time, however, they ultimately reduce the number of
other Hearings necessary to resolve a case, such as Pre - Trials, Court Trials, and Jury Trial
settings. When viewing Exhibit A, page 3 , you can see that while the number of
Arraignments have increased, the number of Court Trial Settings and Jury Trial Settings
have dropped from the levels they were at in 2009 and before. Reducing the number of
Court Trials and Jury Trial settings directly translates in a savings to the City as it
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eliminates the necessity of paying an Officer's overtime for Court appearances, this
combined with the savings in my time for both preparing and attending the future Hearing
date.
In 2007, Washington County added a Hearing Officer position to deal with Petty
Misdemeanor traffic cases as well as some Misdemeanor level offenses now set out by our
Courts as "payable offenses." This program affords a Defendant, who is charged with a
minor offense, the opportunity to walk in to the Stillwater Court and speak with a Hearing
Officer in an effort to resolve their case without having to appear in Court. They can also
make an appointment for a time to see a Hearing Officer at the County's Cottage Grove
facility, I believe they offer staff time on Wednesdays.
In 2010, the Hearing Officer reviewed 1,049 cases. In 2011, 748 cases. And in 2012, 1 am
estimating nearly 653 cases. (See Exhibit A. Page 3 ). Statistically speaking, the Hearing
Officer resolves 60% of the total number of cases that come before them. All of this occurs
without any involvement on my part.
Everyone else, those unresolved cases after first seeing the Hearing Officer and those that
choose the Court option, are placed on my Thursday afternoon Arraignment calendar. On
that calendar I see any Petty Misdemeanors that remain and all Misdemeanors where the
Defendant chose to see me to discuss their case. By closing these files at their first
appearance I save time and money by not otherwise setting up files, ordering reports and
records, preparation of the case via a report review, and the actual attending to these files
in Court on future Hearing dates. This is a primary reason why the total number of hours
to service the Cottage Grove Prosecution Contract is under my fee cap totals.
2009 Expansion of Court Payables List I wrote previously about then Governor
Pawlenty proposing significant cuts in a variety of areas including our Court System. The
Judiciary, starting with then Chief Justice Eric J. Magnuson, were very active in lobbying
our legislators - that "the Court system can not absorb more cuts and still provide the
necessary services." In anticipation of further cuts, the Judges met and proposed
expanding the current "Payables List ". This is a list of all Petty Misdemeanor crimes
together with some lower level Misdemeanor offenses that would be assigned some
monetary amount only. These people would not be required to appear in Court. To
address the overcrowding of the Court's criminal calendar, Judge's now are targeting all
Misdemeanors except DWI's and Assaults. Everything else can be resolved with an
offender simply paying a fine. (My opinion here - I think the Judge's are trying to get rid of
all Misdemeanor traffic from taking up Court time.) Examples include offenses like
Careless Driving, Marijuana possession, Driving after Withdrawal, Driving without
Insurance, etc... This approach gives no consideration to an offender's driving record,
criminal history or facts of the event.
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Expansion of the payable lists to some of these more serious misdemeanor offenses
impacts both our case load and our collected fine revenue. For example, take a Driving
after Revocation offense: The Defendant is stopped in Cottage Grove and cited for driving
without a license. According to the payable list, it is a $200 payable ticket. If there is no
payment forthcoming or other contact from the Defendant requesting a Court date the
Defendant's driver's license is suspended for "non payment of fine." The license was
already suspended thus, until the Defendant is arrested on something more serious or
comes to the conclusion that he needs to get his license reinstated, we will not see any fine
revenue nor will we see the Defendant in Court. If we, as a City, want these offenders to
be brought to Court, we need to serve them with a Complaint. Chief Woolery and I have
met and implemented a policy to deal with those "payables" that should be brought into the
Court process. Thus, unlike some of our neighboring communities, in Cottage Grove, if
you meet certain criteria, we will serve you with a criminal complaint to insure that you will
have to appear in Court to address the offense and, in a large number of these cases,
there will be jail time imposed.
B. Current Status of Court Calendar:
We have seen the Court undertake significant calendar changes from the way we did
business before 2005. In closing the Forest Lake and then the Cottage Grove satellite
Court facilities in 2008, they also restructured the Court calendar by combining additional
jurisdictions. In translation, it means that, as a Prosecutor, we share the calendar with
other cities now more so then ever before. The more cities involved on a given calendar,
the greater distribution of cases even though the amount of time spent in Court remains
the same. This means being less efficient if your looking at things from a strictly from a
case volume perspective. Most of this restructuring occurred in 2008 when they first
closed Cottage Grove Court and then in 2010 after they opened the new Court's building.
Because I operate with a budget amount of billable time each year I have been very
involved with Court Administration offering up input as they review their calendar plans
from year to year. (The Court calendar plan runs from July 1st through June 30 each
year.) If they add even a half day calendar once a month, that can have a significant
impact on the predicted time and hours needed to service the Contract.
A word of caution here Although Court Administration allows us to comment on proposed
calendar changes for the upcoming year prior to the calendar plan being submitted to the
Judges for their final approval, Court Administration (now run by the State) gives very little
weight to the effect that a calendar change may have on a Municipality. (In other words,
if it costs a City more money, that's the City's problem.) In the past I have had to rely on
my relationships with our Judges as they have the final say. If I can convince them why
something might be more efficient, I know that at least they will consider the option.
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eFiling and eCourt Currently, we have the capacity to electronically file criminal
complaints. As for savings, the copy costs are saved. As for time, it takes about the same
amount of time as fax filing the complaint. Coming soon to Washington County is eCourt.
The County will be managing all their criminal cases electronically. The actual "go live"
date has been pushed back but I suspect that this will occur sometime in 2013. 1 find it
hard to predict the eCourt impact on prosecution services. Will it save me time other than
the physical costs associated with paper files? I can predict that it will be much easier for
Chief Woolery's staff at the Police Department to provide my office with prosecution related
data. These prosecution files or data would be electronically submitted as opposed to
faxing it over or having a CSO drop it by the office.
As for the preparation of these case files for Court and then handling them as part of the
Court process, that will take some time to figure out. I can only imagine it is very similar
to the manner in which Council packets are submitted to our Council in anticipation of an
upcoming meeting. I am predicting, at least at the start of the process, that the Court will
operate at a slower pace.
One identified problem that the Court's have already stated is a "Prosecutor problem to
solve" is the access to a Court file. As I mention above, I attend an Arraignment calendar
in an effort to try and resolve as many files as we can at the very first Court appearance.
Anyone who desires to speak with a Prosecutor can do so and the Court currently provides
the Prosecutor with the physical Court file. (This generally includes the citation or
complaint, the police reports and a driving record.) With the implementation of eCourt
there will be no such physical file to review. Will there be access to the electronic Court
file? Or, do I obtain electronic files for all Arraignments in advance of the calendar? The
latter appears to be the best option, however, this option will involve additional Cottage
Grove Police Staff time, additional office time for my staff, not to mention my time to review
and prepare files that may choose some other option than to speak with me at their
Hearing.
The point to make with eCourt is that it is coming and there will be adjustments on how
cases and files get processed from the old paper system. At this time it is simply too
difficult to predict its effect on the billable time needed to provide prosecution services.
Public Defender Problem I am sure most of you have either read or heard about the
cuts in public defender services. The effect of these cuts on our Court calendar is very
real. At nearly every Court calendar I am finished with my "private lawyer" cases and my
"pro se" cases in quick order. As I describe above, I am resolving a significant number of
the usual "pro se" cases at the 1S appearance. That leaves only a small number of these
cases with Defendant's representing themselves on the Pre -Trial calendar. Then I have
the cases involving private defense attorneys. And finally, the balance of my calendar is
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made up of the assigned "public defender" cases. This is always a source of delay in
getting through the calendar. There is but one public defender assigned to handle that
particular Court calendar. Prior to this they would assign two public defenders, one was
assigned exclusively to handle the Cottage Grove cases because of our volume. In other
words, the calendars take so long because all the prosecutors are waiting (down time) for
the one public defender to speak with the various Defendants before their matter can be
heard by the Court. Again, this point goes toward the lack of overall efficiency in
processing cases through a Court calendar.
Positive Calendar Adjustment One positive change occurred with the adoption of the
2010 Court calendar plan. This change involved the creation of a separate probation
calendar independent of jurisdiction. Formerly, all Cottage Grove probation matters were
heard on my Omnibus and Court Trial calendar. Probation violation hearings take up a
good chunk of the calendar with Cottage Grove cases numbering over 200 a year. With
this change, a Defendant who violates his or her probation now makes their initial probation
appearance on a Tuesday afternoon. Prosecutors are no longer required to appear. The
Probation Officer and the Defendant meet and I would estimate that half of these matters
are resolved at the first appearance. (Again requiring no action on my part.) If the
probation violation is "denied" then they are scheduled for a "contested" Revocation
Hearing assigned to my Omnibus /Court Trial calendar. This change means that we are
setting up and preparing for about half as many probation matters than before thus saving
time in the billable hour category. It also means that the Omnibus /Court Trial calendar
moves a lot quicker.
C. Legislative & Case Law Changes or Issues:
There were not a lot of changes in the last Legislative session that would relate to
Prosecution services. There has, however, been some very important case law decisions
that affect Prosecution services coming out of our Appellate Courts. I mentioned in my last
couple of Updates the issues surrounding breath testing in Minnesota and our
Department's use of the Intoxilyzer 5000. This issue did make it to the Supreme Court,
twice, and although the machine has been determined to be "reliable ", the State proceeded
with its intent to purchase new machines. This past summer the new DataMaster breath
testing machines were acquired and one was installed at our Police Department. As with
any new piece of equipment I am sure there will be challenges forthcoming.
I mentioned in my previous Update a challenge coming in the urine testing arena. That
challenge did make its way to the Supreme Court and, in much quicker fashion. It was also
shot down.
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I am certain Council has heard about the Dakota County case that exposed problems with
the St. Paul Crime Lab (now shut down). Thus far, I have only seen an effect on a few
minor cases out of Cottage Grove that involve Misdemeanor or Gross Misdemeanor level
offenses. Obviously, the most serious affect would be to County prosecutions of felony
level offenses.
D. Other Issues:
Motor Vehicle Forfeitures: For a number of years now we have had in place an
aggressive DWI vehicle forfeiture policy. A third offense and, in some cases, a second
offense, fall within the criteria for seizure and forfeiture of a defendant's motor vehicle.
These vehicles are seized and, when the forfeiture process is challenged, the action is
defended in District Court. Our policy was not structured with the only objective being the
additional revenue. We seize all vehicles where forfeiture is applicable, irrespective of
value. We do this with the idea of removing that vehicle from the hands of the repeat
drunk driver. I believe this policy to be consistent with the intent of the legislation and the
State's continuing effort to deter drunk drivers. Even with a policy where we pursue
forfeiture whenever possible, I believe we are more than covering the City's administrative
costs.
I have assembled DWI Forfeiture data and have included information about revenue
collected, number of files opened and costs. This data is included in Exhibit "C" attached.
Theft Diversion Program Over the last couple of years we have seen a significant rise
in the number of theft cases. A large number originate from stores like Kohl's, Menards,
Cub Foods, etc... Theft offenses can have a significant and lasting impact on one's
criminal history. Impossible to later expunge off a record. The effect on education,
employment, housing, etc... is usually unknown to the offender until after the offense is
committed. About a year and a half ago I worked with Chief Woolery and established a
Cottage Grove Theft Diversion program. This program is structured toward making the
incident a one time event and allows the offender an opportunity to work himself or herself
out from under a Court conviction. The program, much like our School Bus Stop Arm
Diversion Program, has been applauded by other Municipalities as well as the Washington
County Bench.
Continue for Dismissal practice I mentioned above our practice of resolving cases with
a Continuation for Dismissal approach and how that benefits the City by increasing its
share of revenue in the form of prosecution costs. Over this past year Court Administration
has come forth with a new policy that they will no longer monitor these agreements. Again,
this purportedly comes from the State Administration Office that, monitoring compliance
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is no longer a Court function. Although the Washington County Court has had
responsibility to monitor compliance of these agreements for years, from this point forward,
it falls to the City Prosecutor. Since we have seen the results of our efforts to generate
additional revenue in the form of prosecution costs my office staff will now monitor these
agreements. With the assistance of Chief Woolery's staff in providing driving records and
criminal history's we will follow through and verify compliance.
II. PROPOSAL FOR PROSECUTION SERVICES
A. Background:
Billable Time /City Revenue Attached to this Memorandum, and set forth as Exhibit "A " ,
you will find the previously mentioned "Prosecution Contract Summary" that includes data
from 1986 to the present. This Summary, on page 1, details the total number of billable
hours expended as well as attorneys fees paid by the City. As for the current contract, in
20101 was $1,248.00 under the fee cap. For 2011, 1 was $12,877.50 under the fee cap.
And for this year, 2012, 1 expect to be approximately $10,000.00 under the fee cap. I had
thought that with the closure of the Cottage Grove Court facility combined with the
consolidation of the criminal calendar, the corresponding increase in travel and the
decrease in our "in- Court" efficiency, that we would be at or near the 1,700 billable hours.
However, as discussed above, the expanded role of the Hearing Officer and our ability to
handle a larger volume of cases on Arraignment and resolve them at our first appearance,
these factors have appeared to offset one another leaving our billable hours in the 1,500
to 1,600 range.
Then as to revenue, economic factors and changes to the way we pursue unpaid fines has
negatively affected the revenue dollars paid to the City. However, we are, for minor
offenses, trying to resolve these cases with an eye toward "prosecution costs ". The
prosecution costs approach provides a higher proportional share to the City. I believe the
increase in revenue from this area will become more noticeable as time goes on.
B. Prosecution Proposal (3 year contract
Essential to predicting billable time is the Court's "calendar plan" and its assignment
relating to Cottage Grove cases. We have been on a Court calendar plan that, in my
opinion, is as efficient as any before, except for the added mix of additional jurisdictions
and the public defender problems addressed above. I am hopeful that this "calendar plan"
remains consistent in the coming years as I put forth a new proposal below.
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Of concern however, is the change on the horizon associated the move to eCourt, all
electronically kept Court files and calendars. Will this move make us more efficient? Will
it result in the expenditure of less billable time? Being that Washington County is one of
the pilot County's for this project I find it difficult to predict the affect this change will have
on prosecution services. Because my proposal is based on billable time with an hourly
rate, if efficiencies are discovered the City will benefit in what it pays out for these services.
I enclose and attach, as Exhibit "D " , a summary of my Prosecution Services Proposal for
2013 - 2015. Knowing that City staff has already worked out their budgets for 2013 1 am
not proposing any change in the hourly rate, currently at $85.00 per hour. In fact, when
review the billable time spent for each of the last three years, I am proposing a 2.4%
decrease in the fee cap amount. The fee cap currently for 2012 is at $142,800. As my
exhibit illustrates, I believe I will come in approximately $10,000 under this amount. I am
proposing, for the first year, reducing the cap amount to $139,400. This would allow up
to 136 billable hours a month on average as the maximum budget. In 2010, 1 was at 132
billable hours per month averaged over the year.
Then for 2014, 1 am proposing an amount that mirrors 2012. The budgeted monthly
billable hours shall not exceed 140 and the fee cap amount shall be set at $142,800. Thus
a 2.4% reduction in the fee cap the first year and "no change" for the second year from our
current contract.
Then for 2015, 1 am proposing an increase in the hourly rate from $85.00 per hour to
$90.00 per hour. I am also estimating, for the purposes of a fee cap, an increase in billable
hours needed for prosecution services at 2.4% each year. In other words, I am including
an additional 40 billable hours for the year in calculating the fee cap for 2015. The monthly
billable average for the fee cap would rise from 140 to 143 a month.
Finally, I have taken the liberty of submitting a draft Contract for the years 2013 - 2015 with
the proposed changes. This is attached as Exhibit "E " .
CONCLUSION
Everyone is aware of our current economic climate. Hopefully, improvement is on the
horizon. As it pertains to prosecution services, at the State level significant cuts have
occurred in the budget available to Court Administration and the Public Defender system.
The State has also increased user fees and fee surcharges for nearly all Court services.
All of these things have an impact on those involved in the criminal justice system.
11
November 9, 2012
MAYOR BAILEY AND COUNCILMEMBERS
Page Twelve
My approach, as I have stated before, is to try and deal with the situation the best we can.
I will continue my efforts to be involved in Court Administration and take every opportunity
to provide input on the Court's calendar plan. The motivation is simple, to keep it as
efficient as possible in how it effects Cottage Grove prosecutions. I will continue to look
at ways to control costs especially with changes coming including eCourt. My objective has
been and will continue to be in providing quality prosecution services and, at the same
time, keeping the City's financial concerns in mind. I believe the enclosed "Prosecution
Services Proposal" reflects this objective.
Should anyone on the Council desire additional information relative to either the proposal
presented or the issues as set forth in my Update, please advise and I will be happy to
supplement the information in writing or, in the alternative, make an appearance before this
Council to personally address any concerns.
I thank you for your consideration.
cc: Ryan Schroeder, City Administrator
Craig Woolery, Director of Public Safety
12
EXHIBIT "A"
PROSECUTION CONTRACT SUMMARY
(Billable Hours and Fees Charged)
Year Total Hours Average Hours Total Fees for Year Actual
Per Month Amount
1986
859.80
71.65
$ 57,167.40
1987
923.30
76.9
69,247.50
1988
974.10
81.17
73,053.00
1989
1,036.80
86.4
77,757.00
1990
1,110.95
92.58
85, 868.00
1991
1,329.40
93.30
93,022.50
1992
1,460.20
121.68
93,331.00
1993
1,276.15
106.35
90,777.92
1994
1,272.50
106.04
92,938.50
1995
1,361.35
113.45
99,401.25
1996
1,304.35
108.70
97,909.97
1997
1,347.80*
112.30*
Unknown*
1998
1,512.50
126.05
Cap: 94,000.00
1999
1,452.10
121.01
101,647.00
2000
1,354.30
112.86
94,801.00
2001
1,442.90
120.24
101, 003.00
2002
1,332.80
110.07
99,960.00
2003
1,357.50
113.13
101,813.00
2004
1,504.40
125.36
Cap: 108,500.00
2005
1,548.50
129.04
Cap: 123,200.00
2006
1,525.20
127.10
122,016.00
2007
1,569.20
130.77
125,545.00
2008
1,536.10
128.00
122,888.00
2009
1,464.50
122.04
117,160.00
Fees
Written
Off
($ 112,867.50) ($4,367.50)
($ 123,928.00) ($ 728.00)
(Fee Cap was $ 126,400)
(Fee Cap was $ 131,200)
(Fee Cap was $ 142,200)
(Fee Cap was $ 144,600)
------------------- - - - - -- CURRENT CONTRACT----------------------------------------------------------------------- - - - - --
2010 1584.40 132.03 126,752.00
(2010 Fee Cap $ 128,000)
(Amount under Cap = $1,248.00)
2011 1488.50 124.04 126,522.50
(2011 Fee Cap $ 139,400.00)
(Amount under Cap = $12,877.50)
2012 1,555.30+ 129.6+ 132,200.00+
(2012 Fee Cap $ 142,800.00)
Notes: (Amount under Cap = $10,600.00 +)
+ Estimated from 6 months of data. (Without billing information from Jack Clinton for 1997.)
- Bold emphasis reflects current contract information.
+ Estimated year end totals with Data through October, 2012.
1
FINE REVENUE PAID TO COTTAGE GROVE
(From 1986 to Present)
----------------------- - - - - -- CURRENT CONTRACT DATA--------------------------------------------------------------- - - - - --
2010 130,566.99
69,692.34 $ 200,259.33
2011 134,367.39
2012 120,240.48+
56,944.28 $ 191,311.67
49,560.03+ $ 169,800.51+
+ Estimated year end totals with Data through October, 2012.
2
Court Fines
Costs of
Combined Total
Year
City's 1/3 share)
Prosecution
Fines & Costs
1986
$ 95,354.00
$
$
1987
121,109.00
1988
101, 559.46
1989
126,218.00
1990
131, 960.00
1991
115, 061.00
1992
160,477.00
1993
157,646.00
1994
139,217.40
1995
140,310.08
1996
130,801.65
1997
157,234.53
7,500.00
164,734.53
1998
146,181.60
11,100.00
157,281.60
1999
155,663.91
12,457.76
168,121.67
2000
133,093.73
20,185.00
153,278.73
2001
129,781.61
16,608.00
146,389.61
2002
134,218.74
20,780.49
154,999.23
----------------------- - - - - -- -DATA PROVIDED IN COMBINED
FORM ONLY ---------------------------------------------
2003
173,985.65
2004
194,013.05
2005
209,394.88
2006
220,687.18
2007
$ 220,471.71
2008
173,094.85
47,202.75
$ 220,297.60
2009
134,516.19
54,762.31
$ 189,278.50
----------------------- - - - - -- CURRENT CONTRACT DATA--------------------------------------------------------------- - - - - --
2010 130,566.99
69,692.34 $ 200,259.33
2011 134,367.39
2012 120,240.48+
56,944.28 $ 191,311.67
49,560.03+ $ 169,800.51+
+ Estimated year end totals with Data through October, 2012.
2
PROSECUTION CASE LOAD - BREAKDOWN BY TYPE OF HEARING
(From 1986 to Present)
Year
Arrai nments
Pre - trials
Omnibus/
Jury Trial
Sentencings, Plea &
2011
620/748 * = 1,368
1,010
Court Trials
Settings
Probation Hearings
2012
1986
- - --
396
--
84
- --
1987
--
599
124
159
- --
1988
--
503
96
138
- --
1989
- - --
792
140
137
- --
1990
--
560
147
107
- --
1991
--
644
94
91
- --
1992
--
816
136
113
- --
1993
--
741
145
108
- --
1994
--
779
158
129
- --
1995
--
769
135
146
- --
1996
296
734
66
95
--
1997
494
770
70
116
30
1998
383
932
86
154
59
1999
345
1,052
80
134
71
2000
466
1,068
78
78
31
2001
458
1,024
65
80
54
2002
462
1,053
50
130
103
2003
669
1,052
47
140
112
2004+
878
1,322
64
110
143
2005
906
1,344
71
146
191
2006
1,033
1,480
67
120
183
2007
1, 301 /349 * = 1,650
1,618
108
137
231
200$
807/634 * = 1,441
1,112
149
58
240
2009
909/1,052* = 1,961
952
64
41
172
------------------ - - - - -- CURRENT CONTRACT DATA ---------------------------------------------------- - - - - --
2010
841/1,049 * =1,890
937
71
43
193
2011
620/748 * = 1,368
1,010
90
31
168
2012
5441653* = 1,197+
1.124
105+
73+
132+
Notes
* is the additional number of Cottage Grove arraignment cases seen by the Hearing Officer.
+ Estimated year end totals with Data through September, 2012.
3
PROSECUTION CASE LOAD - REQUESTS FOR CRIMINAL COMPLAINT
(From 1986 to Present)
Year Criminal Complaints Issued
1986
123
1987
245
1988
197
1989
198
1990
116
1991
282
1992
197
1993
255
1994
256
1995
121
1996
184
1997
167
1998
200
1999
206
2000
193
2001
198
2002
195
2003
153
2004
189
Declined To Prosecute
(cases reviewed but not charged by Complaint)
81
72
77
63
33
55
22
21
17
22
35
9
20
13
17
18
14
9
17
2005
220
13
2006
172
14
2007
158
7
2008
220
4
2009
175
5
----------------- - - - - -- CURRENT CONTRACT DATA ----------------------- - - - - --
2010
187
11
2011
153
5
2012
157+
3+
Notes
+ Estimated year end totals with Data through September, 2012.
Id
EXHIBIT "B"
PROSECUTION SERVICES SUMMARY
-2010
-2011
-2012
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EXHIBIT "C"
DWI FORFEITURE SUMMARY
(1997 to Present)
-Total DWI forfeiture fee's collected by City.
- Number of DWI forfeiture files opened by City Attorney.
(Does not include DWI forfeiture files opened by County Attorney.)
-Money paid out of forfeiture fund for Attorney's Fees to City Attorney.
Year
DWI Forfeiture Fee's Collected
New Files
Attorney Fees Paid
1997
Without data
4
$ 462.00
1998
Without data
26
3,178.00
1999
$ 18,287.00
21
5,621.00
2000
5,378.57
17
4,718.00
2001
8,529.72
19
7,903.00
2002
16,711.80
26
5,895.00
2003
14,476.44
24
6,802.50
2004
15,742.29
22
5,317.50
2005
14,204.38
33
7,664.00
2006
33,855.40
29
14,616.00
2007
19,979.60
21
10,160.00
2008
29,076.35
33
10,736.00
2009
38,335.98
27
9,656.00
-------------- - - - - -- CURRENT CONTRACT DATA
------------------------------------ - - - - --
2010 24,139.02 28 10,264.00
2011 45,281.15 26 8,313.00
2012 $ 18,175.72+ 24+ $ 8,823.00+
( +2012 data through October, 2012)
Notes:
*Does not include value of 2002 Dodge Durango converted to School Resource Vehicle.
+ 2012 numbers are extrapolated from Data for January, 2012 through October, 2012.
EXHIBIT "D"
PROSECUTION SERVICES PROPOSAL
BEGINNING JANUARY 1 2013
Proposed Prosecution Services Contract:
- Hourly Rate remains the same for 2013 and 2014 = $85.00 Per Hour;
- Hourly Rate increased for 2015= $90.00 Per Hour;
- Predicted Annual Hours for Contract;
- Increase in Hours from one year to the next;
- Predicted Average Monthly Hours for Prosecution;
- Annual fee limitation by year Wall in -Court time in Stillwater;
- Actual fees paid by the City.
Predicted
Increase
Predicted
Fee Cap
Fee Cap
Annual
in Annual
Monthly
w /CG
w/o CG Actual
Year Hours
Hours
Hours
Court
Court Fees
------------------------- - - - - -- PRIOR CONTRACT --------------------------------------- - - - - --
2008 1,536 - - - -- 128 - - -- $142,200 $122,888
- Actual amount under Fee Cap for 2008 - $19,312
2009 1,464.50 - - - -- 122 ---- $144,600 $117,160
- Actual amount under Fee Cap for 2009 - $27,440
--------------------- - - - - -- CURRENT CONTRACT 2010 - 2012 -------------------- - - - - --
2010 1,584.40 - - -- 132 - - -- $128,000 $126,752.00
- Hourly rate at $80 per hour.
- Actual amount under Fee Cap for 2010 - $1,248
2011 1,488.50 - - -- 124 - - -- $139,400 $126,522.50
- Hourly rate increased from $80 to $85 per hour.
- Actual amount under Fee Cap for 2011 - $12,877.50
2012 1,555.30+ - - -- 129.6+ - - -- $142,800 $132,200+
+ Predicted numbers based on Data through October, 2012.
- Amount projected under Fee Cap for 2012 - $10,600 +.
Predicted Increase Predicted
Annual in Annual Monthly Actual
Year Hours Hours Hours Fee Cap Fees
---------------------- - - - - -- PROPOSED CONTRACT FOR 2013 - 2015 -------------------- - - - - --
2013 1 1,640 - - -- 136.6 $139,400
- Hourly rate remains at $85 per hour.
- 2.4% decrease in Fee Cap hours for 2013.
- Fee Cap is below the amount set for 2008.
2014 1,680 40 140 $142,800
- Hourly rate remains at $85 per hour.
- 2.4% increase in Fee Cap hours (40 hours more for 2014).
- Billable hours and Fee Cap are the same as current contract for 2012.
2015 1,720 40 143.3 $154,800
- Includes hourly rate increase from $85 to $90 per hour.
- 2.4% increase in Fee Cap hours (40 hours more for 2015).
-2-
EXHIBIT "E"
LEGAL SERVICES AGREEMENT
This agreement, made this day of , , by and
between the City of Cottage Grove, hereinafter referred to as "City," first party and the law
firm of F. Joseph Taylor, P.A., hereinafter referred to as "Taylor," second party.
A. City has selected Taylor to serve as the law firm providing criminal prosecution services
to the City based upon a formal proposal submitted by Taylor dated November 9, 2012.
B. City and Taylor desire to embody, in this written agreement, their understanding on
such matters as the scope of services and the fee arrangement.
Therefore, it is hereby agreed between the parties as follows:
1. SERVICES: Taylor will prosecute all petty misdemeanor, misdemeanor and
gross misdemeanor offenses together with any ordinance violations occurring within the
geographical boundaries of the City. Taylorwill provide the following prosecution services:
a) Advising. Review of all investigatory reports; consultations with
police and City officials throughout the work week, evenings and
weekends; advising police and the other City departments on
appropriate action or follow -up to be taken in cases submitted for
review.
b) Charging_ Drafting complaints for statutory and ordinance violations
(petty misdemeanor, misdemeanor and gross misdemeanor
offenses); if probable cause exists, drafting appropriate documents
and arranging to have a Complaint signed before a Judge of the
Washington County District Court; arranging to have the defendant
appear in response to appropriate process;
c) Arraignments. Appearing at arraignments for the City in Washington
County District Court (petty misdemeanor, misdemeanor and gross
misdemeanor offenses).
d) Court Trials. Representing the City at trials for petty misdemeanor
and certain misdemeanors in Washington County District Court;
assembling the case file; notifying and /or subpoenaing all necessary
witnesses; obtaining all necessary documentation (certified driving
records, prior conviction records, insurance records, etc.); meeting
with and interviewing witnesses; presenting the City's case; and
attending any subsequent proceedings (sentencing, probation review
and /or revocation hearings, restitution hearings, etc.)
e) Pretrial Conferences. Representing the City at pretrial conferences
(misdemeanor and gross misdemeanor) held in Washington County
District Court; preparing the case file; obtaining all necessary
documentation (certified driving records, certified conviction records,
etc.); notifying and /or subpoenaing any necessary witnesses;
contacting victims pursuant to the Victim's Rights Act (to solicit input
on case disposition, restitution, etc.); making and responding to
pretrial motions; and appearing for the City at the pretrial hearing.
f) Omnibus Hearings. Representing the City at omnibus hearings
and /or evidentiary hearings held in Washington County District Court;
preparing a case file; obtaining all necessary documentation (certified
driving records, certified conviction records, etc.); notifying and /or
subpoenaing any necessary witnesses, contacting victims pursuant
to the Victims Rights Act; and appearing for the City at
omnibus /evidentiary hearings.
g) Jury Trials. Representing the City in jury trials in Washington County
District Court (misdemeanor and gross misdemeanor offenses); being
available throughout the week should any case be called for trial;
preparing the case file; notifying and /or subpoenaing witnesses;
obtaining all necessary documents; responding to pretrial and
evidentiary motions and presenting the City's case to the jury.
h) Sentencing. Representing the City at sentencings (petty
misdemeanors, misdemeanors and gross misdemeanor offenses);
presenting information pursuant to the Victim's Rights Act; supplying
the Court with all necessary information (prior record, restitution
claims, etc.); and arguing the City's case at sentencing.
i) Revocation Hearings. Representing the City at revocation hearings
(petty misdemeanors, misdemeanors and gross misdemeanors);
preparing the case file; notifying and /or subpoenaing necessary
witnesses; and arguing the City's case at the hearing.
j) Ordinance Enforcement. Keeping a current Cottage Grove City Code
(City to supply a complete code and all relevant updates); prosecuting
ordinance violations; working closely with the various City
departments to enforce all City ordinances; advising the City as
requested or required on all ordinance developments and changes;
consulting as necessary with the civil City Attorney on ordinance
development and interpretation;
2
k) Appeals. Appeals from District Court are to the Minnesota Court of
Appeals and then a discretionary appeal to the Minnesota Supreme
Court. Appeals are rarely taken by the defense in non - felony matters
and almost never pursued by the prosecution. Appeals are not
covered by this agreement, and may only be initiated with the express
permission of the Director of Public Safety and /or the City
Administrator.
I) Officer Training. Informing, advising and training the Cottage Grove
Police Officers and other City personnel on legislative changes, case
law developments and court room procedures including testifying.
M) Civil Forfeiture. Consulting with police and other City personnel on
forfeiture issues including case updates, preparing all necessary
pleadings in the forfeiture action as well as appearing on behalf of the
City at any hearings relating to the civil action.
n) Detainer Requests. Responding on behalf of the City to any requests
for detainer filed with the Court; prepare any necessary documents
relating to transport and appear in response to the appropriate
process.
o) Reports. Maintaining all statistical data relating to prosecution
activities and providing updates to Council and staff as requested.
2. FEES.
a) Hourly Rate /Fee Limitation in 2013 and 2014 The City agrees to
compensate Taylor at the rate of Eighty Five Dollars ($85.00) per hour
for all prosecution services described in paragraph one (1), with a
limitation that the annual compensation shall not exceed the sum of
One Hundred Thirty Nine Thousand Four Hundred Dollars and 00/100
($139,400.00) in 2013; and the sum of One Hundred Forty Two
Thousand Eight Hundred Dollars and 00/100 ($142,800.00) in 2014.
b) Hourly Rate /Fee Limitation in 2015 The City agrees to compensate
Taylor at the rate of Ninety Dollars ($90.00) per hour for all
prosecution services described in paragraph one (1), with a limitation
that the annual compensation shall not exceed the sum of One
Hundred Fifty Four Thousand Eight Hundred Dollars and 00/100
($154,800.00) in 2015.
c) Forfeiture Fund. The City has an established DWI forfeiture fund
that is being administered pursuant to Minn. Stat. §169A.63, Subd.
10. The proceeds from these funds are to be used exclusively for
DWI related enforcement, training and education. Further, said
Statute requires thirty percent (30 %) of the money or proceeds
3
collected to be forwarded to Taylor as the prosecuting authority.
Taylor has agreed that, upon receipt of any proceeds from the City's
forfeiture fund, the City will receive a credit against any previous
billing for time spent on DWI forfeiture matters as set forth in
Paragraph One (1)(m). As directed by State Statute, any proceeds
forwarded from the City's forfeiture fund are specifically excluded from
the computation of the annual compensation limitations set forth in
Paragraph Two (2)(a) or (2)(b) above.
d) Additional Services. No criminal prosecution services or other legal
services in addition to those described in paragraph one (1) shall be
undertaken by or expected of Taylor without the express request and
authorization of the City and without a prior agreement between the
City and Taylor as to compensation for any such additional services.
3. COSTS. Taylor shall also be separately reimbursed for any costs and
disbursements which Taylor incurs in connection with providing any of the services
described in paragraph one (1) of this agreement. Reimbursable costs and disbursements
shall include out -of- pocket expenses such as filing fees, transcript fees, photocopying, etc.,
for documents and materials required to be served and /or filed with the Court. Any costs
and disbursements will be itemized on the monthly billing statement. The costs and
disbursements do not include expenses for secretarial or word processing services nor
office supplies.
4. MONTHLY BILLINGS. A fee statement will be submitted by Taylor to the
City for legal services and shall include costs and disbursements. This fee statement shall
be submitted to the City Council on a monthly basis. The fee statement shall be in
sufficient detail to adequately inform the City concerning the tasks performed, the time
spent on each such task, the nature and extent of the costs and disbursements. The fee
statements shall also show the total time spent and the fees charged.
5. CONFLICTS OF INTEREST. Taylor agrees that it will not undertake the
representation of any person or other entity during its appointment as Prosecuting Attorney
in instances where such representation may create a potential conflict of interest, unless:
a) Taylor reasonably believes the representation will not adversely affect
its relationship with the City; and
b) The City and such other person or entity have consented after
consultation.
6. PROFESSIONAL LIABILITY INSURANCE Taylor shall maintain, during the
term of this contract, professional liability insurance ensuring payment of damage for legal
liability arising out of the performance of professional services for the City, in the insured's
capacity as an attorney, in an amount of at least Five Hundred Thousand Dollars
($500,000.00) with an insurance company in good standing and authorized to do business
in the State of Minnesota.
2
7. TERM OF AGREEMENT. This agreement shall be from January 1, 2013
through the last day of December, 2015, and being renewed thereafter upon mutual
agreement by the parties. Either party may terminate this agreement upon ninety (90)
days written notice to the other party.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year
above written.
F. JOSEPH TAYLOR, P.A.
IS
F. Joseph Taylor, President
CITY OF COTTAGE GROVE
Myron Bailey, Mayor
am
Caron M. Stransky, City Clerk
5