Originally Published: November 28, 2013 6:02 a.m.
PRESCOTT - Without disclosing either the expected total cost or the hourly rate, the Prescott City Council approved a professional services agreement with an outside law firm this week.
The company, Dickinson Wright Mariscal Weeks, will handle the city's defense in a lawsuit that local company Pure Wafer, Inc. recently filed regarding fluoride emissions into the city's wastewater system.
Prior to Tuesday's vote on the agreement, City Attorney Jon Paladini told council members they would be privy to the city's expected cost of the legal representation, as well as regular updates on the costs.
But Paladini has declined to release the details to the public, maintaining that such information is confidential and would reveal the city's legal strategy to the opposing side.
That raised some concerns from the council.
"I have a little bit of a problem not having an amount 'not to exceed,'" Councilman Steve Blair said. "I'm not used to seeing this from any department."
Indeed, in previous agreements with outside legal counsel, the City Council has included a "not to exceed" cap, or has revealed the amount of the retainer.
Paladini, who came on board as city attorney in January, said he disagrees with that practice.
"I recommend against capping fee amounts because it's just impossible to predict," he said.
In addition, Paladini said letting the opposing side know how much money the city is willing to spend on its defense could divulge important information to the opposing side. "It does play into settlement strategies," he said.
In response to a Daily Courier public records request, the city released the basic template of the Dickinson Wright engagement and representation letter on Tuesday. But the city attorney's office had redacted or blacked out most of the specific information about the case, except for the names of the attorneys who would be working on the lawsuit.
After Tuesday's meeting, Paladini said the ongoing costs of the legal representation would be available to the public upon request as the bills come in.
The Pure Wafer lawsuit pertains to a difference of interpretation of a development agreement that the city and the company entered in 1997.
Paladini said Tuesday that it is "a legitimate disagreement between two parties as to the meaning of the words" in a contract.
In late September, Pure Wafer - a silicon wafer reclamation facility near the Prescott Airport - sued the city.
The city had earlier approved a consent order from the Arizona Department of Environmental Quality (ADEQ), agreeing to deal with the high levels of fluoride that had been detected in Prescott's treated sewage.
The city attributed the problem to Pure Wafer, which reportedly uses hydrofluoric acid to scrub wafers for recycling.
At about the same time, the city also approved a wastewater pre-treatment program that imposes stricter standards on wastewater emissions.
Pure Wafer's lawsuit seeks an injunction against the pre-treatment ordi-nance, maintaining that the design and construction of the improvements required under the new rules would cost $1 million or more, and that the cost of operating the new facilities would exceed $325,000 per year.
Paladini said a hearing is scheduled to take place on Dec. 19 in U.S. District Court in Phoenix on the preliminary injunction.
Follow Cindy Barks on Twitter @Cindy_Barks.
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