Bar Association wants town to pay for overrun in costs

By Nathan R. Huff

Arguing that it was hit by "a very unusual, extraordinary rental dispute case" when it began working for the town, the Santa Clara County Bar Association managed to convince the Town Council to at least partially reimburse it for the costs of the El Gato Penthouse negotiations.

The association had requested a $10,000 payment from the town for extra work it put into the case. Town staff, however, recommended the council deny the request based on the contract the town had with the association, and that no formal bill was submitted until November, months after the completion of the El Gato case.

"The bar association has done a very good job for us," Town Manager David Knapp said prior to the Feb. 22 council meeting. "It's just this concept of staying within the context of the contract."

Councilwoman Linda Lubeck floated the idea of "splitting the baby," but the rest of the council decided to let staff negotiate a compromise with the association.

Bar association executive director Christine Burdick argued that the group had spent an unforeseen and unprecedented amount of resources on the El Gato case, with very good results. "We believe that there are very strong principles of good faith and fair dealing that ought to be honored in this situation," Burdick said. "The town knew this case was different."

While council members agreed with staff that they were in no way obligated by the town's contract to reimburse the bar association, they all agreed the complexities of the El Gato case, as well as the mediator's success, were extraordinary.

"They worked their rear ends off and that thing could have blown up in our faces and been a political nightmare," Councilwoman Linda Lubeck later said. "But they lose a little bit because they didn't come up to the plate quick enough."

Burdick said the association had repeatedly mentioned the difficulties of the case to Community Services Director Regina Falk-ner, but was told to wait to present its case until the annual contract came up for negotiations. Burdick added that if she had known the staff would recommend a denial, they would have come to the council sooner.

"We felt the town was on notice," Burdick later said. "They knew, and essentially allowed us to go forward and accepted our services."

Falkner said that in all of their communications with the bar association--or miscommunications, depending on whom one asks--staff was consistent in saying that any payment above the contracted amount would have to go to the council.

"The staff argument was that we have a contract and we should stick to it. They get $1,800 for mediation and arbitration--they spent $13,300," Falkner later said, adding that when the town went out and took bids for mediation services, the bidders were responsible for making accurate appraisals.

"The town's approach is to find a way to contain the costs, and the bar association's perspective is 'we'll let you know if an expensive one is coming,' " Falkner said.

In renegotiating next year's contract, both Burdick and Falkner said the possibility of a future case similar to that of El Gato will be addressed. Burdick said the association made submittals addressing the issue, but staff rejected it. The current contract expires in June.

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