Download Staff Report – Consent Item TO: East Bay Community Energy Board

Staff Report – Consent Item
TO:
East Bay Community Energy Board of Directors
FROM:
Andrea L. Weddle, Chief Assistant County Counsel
Office of the County Counsel, County of Alameda
SUBJECT:
Approval of Interim General Counsel Contract with Richards, Watson & Gershon
DATE:
January 30, 2017
______________________________________________________________________________
Recommendation
Approve six-month contract with Richards, Watson & Gershon to provide general counsel
services to East Bay Community Energy commencing January 1, 2017-June 30, 2017.
Background
The joint powers authority agreement for the East Bay Community Energy Authority (“EBCE”
or the “Authority”) requires that the Authority’s Board of Directors appoint a General Counsel
for the Authority, who shall be responsible for providing legal advice to the Board and
overseeing all legal work for the Authority. The EBCE “attorney group” that has been working
on creating the Authority, consisting of representatives from the Office of the County Counsel
and the applicable city attorney offices, has recommended that a proposed Interim General
Counsel be selected prior to the seating of the Authority Board so that staff can recommend
retaining the selected counsel, on an interim basis, at the Authority’s first meeting.
A volunteer committee from the attorney working group managed the selection process. The
committee consisted of representatives from Emeryville (Michael Guina), Oakland (Celso Ortiz),
Fremont (Debra Margolis) and the Office of the Alameda County Counsel (Brian Washington,
Lyndsey Moore). Jason Alcala (Livermore) also participated in reviewing the request for
proposals and the responses, but was not able to participate in the interviews.) The committee
prepared and sent an informal “Invitation to Propose Legal Services” to eight area law firms with
significant public agency representation experience. The request asked the firms to identify their
specific experience with community choice aggregation and in several areas of law relevant to
the Authority’s operations including: public power and utilities, state and federal energy
regulations, land use law, public contracts, labor and employment, government ethics and open
meeting laws, entity incorporation and complex financial transactions.
Three firms responded to the invitation: Richards, Watson, & Gershon; Best, Best & Krieger;
and Meyers Nave. The committee interviewed all three firms. While each of the firms are well
qualified to serve as Interim General Counsel, the committee unanimously agreed that Richards,
Watson, & Gershon offered the greatest expertise and would be most beneficial to the Authority
in its formation phase.
Discussion
Gregory W. Stepanicich of Richards, Watson & Gershon (RWG), working with Roy Clarke and
Inder Khalsa, drafted the joint powers agreements and other formation documents to facilitate the
creation of the Marin Energy Authority (MCE) and the Silicon Valley Clean Energy Authority
(SVCEA) and assisted with the launch of these CCA programs. Greg served as interim General
Counsel for MCE until in-house general counsel was hired after the CCE program was
implemented, and continues to serve as special counsel to MCE. He currently serves as General
Counsel for the SVCEA.
Greg Stepanicich and Inder Khalsa have assisted the MCE and the SVCEA with their conflict of
interest codes, operating rules and regulations, as well as a variety of agreements: standard
consulting agreements, adminstrative services and marketing agreements, billing and data
management contracts, IT management contracts, office leases, and banking services
agreements. Roy Clarke, who provides advice on employment and personnel matters, reviewed
employee handbook and personnel rules, as well as the benefits package and proposed retirement
plan for employees of SVCEA.
Due to its representation of MCE and SVCEA, Richards, Watson & Gershon has specific
experience and background in the creation of CCA programs. Under the Legal Services
Agreement, Greg Stepanicich will provide oversight of the legal services provided to the East
Bay Community Energy Authority, with Inder Khalsa staffing regular meetings and providing
day-to-day assistance to EBCE officials and staff. Roy Clarke will provide employment and
personnel advice as-needed. RWG will not provide energy law advice; rather, its role will be to
establish the organizational structure and necessary contractual relationships to launch the CCA
program.
The attached Legal Services Agreement provides that Richards, Watson & Gershon shall
provide, on a six month interim basis, the general legal services typically required by a joint
powers authority in addition to legal services related more specifically to the operation of a
community choice aggregation program. The Agreement will expire on June 30, 2017, unless
extended by the Board of Directors.
Under the Agreement, legal services include the following:

Advice and preparation of documents in connection with the start up of operations for
EBCEA including but not limited to the following:
o Prepare any required filings with County or state agencies that may be required by
law.
o Prepare a conflict of interest code
o Prepare operating rules and regulations

Attendance at the monthly EBCEA Board of Directors (“Board”) meetings and any
special meetings and workshops as required by the Chief Executive Officer or Chair of
the Board

Brown Act, Conflict of Interest and Public Records Act advice and representation

Preparation or review of consultant and vendor contracts

Advice and preparation of documents related to personnel matters

Advice to the Chief Executive Officer and designated staff on administrative and
operational matters

Research and advice on legal questions asked by the Board, Chief Executive Officer and
designated staff

Advice and assistance on other legal matters as may be assigned by the Chief Executive
Officer
The Legal Services Agreement will not include energy contracts or regulatory matters before the
CPUC that require specialized legal services in these areas of law.
The firm’s billable rates are described in Exhibit B to the agreement, and the contract provides
that total fees shall not exceed $75,000 without the prior approval of the EBCEA Board of
Directors.