Eight Ideas for Park Districts
to Control Legal Costs

by Nancy L. Kaszak

When I was General Attorney at the Chicago Park District, the Board of Commissioners gave me instructions, in no uncertain terms, to Reduce Legal Expense! Between tax caps and growing demands for recreational services, park districts throughout the state are similarly feeling the need to think of ways to minimize legal expenses. After struggling with this need for almost six years, we were successful in substantially reducing the Chicago Park District's outside legal expenses. (In fact, the Chicago Daily Law Bulletin found that the Chicago Park District had the lowest outside legal expenses of any local government in Chicago.) We were also successful in gaining substantial control over our liability costs.

In reflecting on my work at the Chicago Park District and other districts I have worked with in recent years, I have developed some helpful hints that may assist other park districts to reduce the growth of legal expenses.

1. AVOID UNNECESSARY PROBLEMS

As a general rule, it is more economical to pay a lawyer to keep the district out of a legal dispute than to pay a lawyer to represent the district after a legal dispute has erupted. The best way to keep your costs down is to avoid unnecessary legal problems which arise because of a lack of legal advice or ignoring legal advice given. There is a lot of truth to the old adage that "an ounce of prevention is worth a pound of cure."

Well-meaning park officials or employees may seek to deal with a problem without recognizing its legal implications. For example, revoking a park use permit can raise a host of constitutional questions, such as freedom of expression and assembly. Disposing of motor fuel could violate environmental laws. Similarly, the hiring, compensation, discipline and dismissal of employees can lead to many types of legal challenges. The good news is that, in most of these situations, expensive legal disputes can be minimized and avoided with proper planning and review.

Some districts ask their attorney to attend all board meetings to be available to answer unexpected legal or procedural questions. There is some benefit to this practice because often the attorney can identify legal issues which have been overlooked in matters brought before the board. Attorneys should be invited to important meetings where legal matters are being discussed and several meetings a year so that he or she can become familiar with the board and its philosophy. For most meetings, however, the presence of an attorney is not necessary, and the benefit of the attorney's expertise can be gained more economically by discussing the agenda with your attorney before the meeting. Your attorney may be able to guide you through some legally tricky agenda issues and, thus, eliminate the need for his or her attendance. If some legal question comes up unexpectedly, you may be able to delay action or to take action "subject to a legal opinion." After a board meeting, you should meet with your attorney to discuss the proceedings and receive the attorney's advice for the future handling of a matter.

2. ESTABLISH PROCEDURES FOR HANDLING ROUTINE ACTIVITIES

In the long run, it is generally more economical to buy quality goods at a slightly higher price than to continuously repair lower priced and lower quality goods. Similarly, it is more economical to pay a lawyer to develop a sound process to instruct a park district's administrative staff for handling routine matters, than for the district to pay that lawyer again and again for advice on repeating matters raising the same question. Development of a park district code and standard operating procedures will allow park officials to create a set of standard rules and procedures which anticipate legal problems. Hopefully, these standard rules will become routine, avoiding a situation where an officer or employee gets confused on procedures.

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3. LEARN FROM THE EXPERIENCES OF OTHER LOCAL GOVERNMENTS

It is more economical for a district to benefit from the legal experiences and expenses of other local governments, rather than to start from scratch legally. The state of the law is always changing. The U.S. Congress, the Illinois General Assembly, and local governments routinely pass an extraordinary number of laws. In addition, courts routinely review a large number of cases interpreting these laws. However, a park district should take comfort in one thing — it is not alone. There are hundreds of park districts and thousands of local governments in Illinois, all struggling through the same maze.

To keep its legal expenses down, a park district should learn about the failures and the successes of other local governments. You can learn through participating in the activities and reading the publications of the Illinois Association of Park Districts and the Illinois Municipal League. You can develop a network of park and local officials in your immediate area. You can also encourage your attorney to participate in similar activities and networks.

4. UNDERSTAND THE COST OF A POLICY OF DISPUTE

Every battle can be fought, but someone must pay the soldiers, buy the weapons, and clean up the battlefield. Legal battles exact their price in staff time and commissioners' angst as well as attorney's fees. Park districts need to know the potential costs of a legal battle before they decide to take on the flight. Should the district decide to pursue combat, the park district should require frequent reports of casualties and damage. What may have seemed to be a minor legal skirmish may escalate beyond the district's expected commitment. The district should be consciously aware of the costs and benefits of continuing litigation and be prepared to adjust its battle plan when circumstances require it. One of the saddest moments in government is when legal fees are paid to fight cases where no one can remember the point of the law suit.

5. IMPLEMENT A STRONG RISK MANAGEMENT PROGRAM

The stronger your risk management program, the less you will need a lawyer. No injuries; no law suits. The commitment to risk management, however, is more than a slogan or ideology. It requires constant vigilance and commitment to the inspections, regulations, policies and practices necessary to conduct a successful risk management program.

6. MAKE SURE CONSTRUCTION AND OTHER THIRD-PARTY INSURANCE POLICIES COVER COST OF DEFENSE

When a park district hires a construction company to perform work, a park district should require in their bid specifications that the contractor provide, at minimum, standard "additional insured" coverage on an ISO form from a company acceptable to the district. The ISO form is one approved by the insurance industry organization that drafts standard insurance policy forms. The certificate should provide insurance in amounts adequate to cover not only the anticipated liability costs in the event of a claim, but also the cost of attorneys to defend the suit. Park districts might consider requiring similar coverage from persons or businesses using or working on park district properties. A contract requiring a construction contractor to indemnify the park district, rather than to buy insurance, is void under Illinois law. Construction Contract Indemnification for Negligence Act, 740 ILCS 35/0/01 et seq.; Jokich v. Union Oil of California, 214 111. App.3d 906, 574 N.E. 2d 214, 158 111. Dec. 420 (1991); Zettel v. Paschen Construction Contractors, Inc., 100 111. App.3d 614. 56 111. Dec. 109. 427 N.E.2d 189 (1981).

7. CONSIDER POOLING LEGAL RESOURCES WITH OTHER LOCAL GOVERNMENTS

Just as a district can minimize its cost by learning from the legal experiences of other local governments, park districts can also reduce their costs by jointly hiring legal counsel to represent them on common legal matters. For example, a group of districts or local governments could decide that they have a common interest in passing an ordinance establishing rules for use of public spaces or obtaining a legal opinion on the requirements imposed by the Americans with Disabilities Act. It might be more economical for a district to share such legal costs, rather than each hire their own lawyer to hand the matter. It is often helpful to employ an attorney who has worked for and understands the operation of other governmental bodies as well as park districts.

8. HAVE A WRITTEN CONTRACT WITH YOUR ATTORNEY

It is important for a park district to have clear understanding with their attorney on their financial relationship. The contract could specify a number of expectations of the park district. Those expectations might include the following:

a. The Scope of Legal Services to be Provided

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If you are hiring an attorney to handle only specific matters, rather than acting as a general counsel, those matters should be clarified in the contract.

b. The Compensation

The contract should specify the hourly rate to be charged by the attorney. Some firms charge more for the time of partners and less for associates. If a tiered structure is proposed, the contract should specify the differing rates. Some law firms use paralegals to keep client costs down. In such cases, a rate for paralegal time should be specified.

If a park district expects that a firm will incur substantial expenses in its representation of the district, the authorized expenses should be specified in the contract. Otherwise, the contract should just authorize reasonable expenses.

The park district should come to an understanding with its attorney as to the billing practices. The district might require monthly statements, with records reflecting which attorney worked on the matter and what he or she did.

c. The Term

The contract can specify the term of the relationship. Some districts find it useful to have professional service contracts which begin and end with the fiscal year. This gives the district an opportunity to review all current relationships. Any contact should provide that the park district can terminate the services of the attorney without prior notice.

CONCLUSION

There are many steps that a park district can take to control and possibly reduce legal costs. By implementing these suggestions and taking other measures, districts will be able to demonstrate to the taxpayers that their monies are being handled responsibly.

Nancy L. Kaszak is counsel to the law firm Ancel, Glink, Diamond, Cope & Bush, P.C. She is also the state repre sentative from District 24.•