Appleseed Center, Office of Corporation Counsel: Core Remedies for Lasting Reform, December 2000

DC Appleseed Center
733 Fifteenth Street, NW, Suite 330
Washington, D.C. 20005
Tel: (202) 393-1158
Fax: (202)393-1495
www.appleseeds.net/dc

This report is dedicated to Charles F.C. Ruff,
District of Columbia Corporation Counsel, 1995-1997,
in recognition of his contributions to the District of Columbia.

Acknowledgments

The DC Appleseed Center thanks the following for their generous contributions to this project:

I. INTRODUCTION AND EXECUTIVE SUMMARY

As in other cities, legal services for most of the District of Columbia government are prop provided by a central agency, the Office of the Corporation Counsel ("OCC" or the "Office"), which serves as the chief lei,,al officer for the District of Columbia government. Under District which the OCC is responsible for "all law business of the . . . District, and all suits instituted by and against the government thereof."¹

Practically speaking, this legal requirement translates into several primary functions: handling all suits instituted by or against the District of Columbia; providing legal advice to the Mayor and District government agencies; prosecuting a limited range of criminal acts; and serving as the guardian ad !item for children who have been removed from their homes due to abuse or neglect.² When the District faces legal challenges, the OCC serves as its shield: protecting it from an avalanche of tort litigation; counseling it through complex statutory, regulatory, and policy changes; and vigorously asserting the District's rights, when necessary.

Employing 198 attorneys and supervising an additional 58, the OCC carries out functions performed elsewhere not only at the city level, but also at the county and state levels.³ Thus, the powers, duties, and operations of the Office are to some extent comparable to those of a state attorney general, county attorney, and city solicitor. One major exception is that the OCC's criminal prosecution is limited to those cases involving juvenile crime, misdemeanor general crime, and District government fraud. All other criminal cases are the responsibility of the U.S. Attorney for the District of Columbia.

The Corporation Counsel's responsibilities extend not only to the Mayor and to other District officials, but to all the citizens of the District as well. In fulfilling the duties of the Office, the Corporation Counsel "owes a duty of care to the public in general and to potentially affected individuals."⁴

The quality of the legal services provided by the OCC matters to the citizens of the District of Columbia. Perhaps not as obviously as the police or fire departments, the OCC is an agency that touches people's lives. If the OCC does not do its job - or does a poor job -the children of single mothers do not get the financial support from their fathers that they need and deserve; the District is a less safe place to live and work; and access of the less affluent to medical care is impeded. And, in the final analysis, if the OCC does not do its job — or does a poor job — District taxpayers pay higher taxes, or are forced to do without other services, or both, in order to pay for OCC's mistakes.

This Report is designed, in large part, to assess how well the OCC currently is fulfilling its "duty of care" to all citizens of the District, and, based on that assessment and research into other government law offices, to make recommendations as to how the OCC's performance might be improved. .any organization, regardless of the importance of its mission or the commitment of its personnel to that mission, is only as effective as its structure and culture allow it to be. How cases are assigned; how attorneys are hired, paid, and promoted; how attorneys are supported and supervised — all of the daily nuts and bolts of a functioning law office — translate the vital mission of the OCC into tangible results. These details are the subject of this Report and its recommendations.

A. The Continuing and Pressing Need for OCC Reform

In recent years, the OCC has been the subject of sharp and repeated judicial criticism, due to missed deadlines, failures to comply with discovery requests and motions, and other shortcomings. Just over a year ago, United States District Judge Thomas Hogan issued an order against the District for attorneys' fees in connection with the LaShawn A. v. Williams litigation because the OCC had failed to file any opposition to the plaintiff's motion for a fee award. In the order, Judge Hogan chastised the OCC for serious and repeated lapses in conduct over a period of several years.⁵ Eventually, the award of fees was rescinded by Judge Hogan, but only after the OCC filed with the Court a document enumerating 52 instances in which an OCC attorney had been chastised in a bench or written opinion or order from January 1, 1997 through December 10, 1999 in cases before the U. S. District Court for the District of Columbia.⁶ While many government law offices (and private law firms, for that matter) have had individual attorneys occasionally criticized or sanctioned for misconduct, the extent to which this has occurred with OCC attorneys in recent years is unacceptable by any measure.⁷

The LaShawn A. case was litigated at a time when the OCC had just begun to implement the provisions of the Legal Service Establishment Amendment Act ("LSEA," or the "Act") — the 1998 law enacted by the D.C. Council to help strengthen the OCC.⁸ The Act was designed to overhaul comprehensively not only the OCC itself, but the entire legal representation of District government as well, including all agency counsel, creating an entirely new and unified entity called the District "Legal Service" under the overall supervision of the Corporation Counsel. Among other things, the Act required the Corporation Counsel to report, in writing, to the Mayor and the Council no later than Apri120, 2000, "concerning all aspects of the operation of the Legal Service ice since its establishment."⁹

On May 31, 2000, Corporation Counsel Rigsby (who was appointed in December 1999) submitted to Mayor .Anthony Williams and the District Council that report ("Legal Service Report").¹⁰ Apart from its complaints about lagging attorney salaries and an inadequate training budget — both of which appear to be well-founded and important — the Legal Service Report provides ides a highly fag favorable review of the OCC's operations since April 1999. The Legal Service Report claims improvements at OCC in recruiting attorneys, attorney turnover, training, work quality, and attorney morale.¹¹ On the basis of claims like these, the Legal Service Report paints a picture of a highly functional and competent OCC.¹²

Although there are indeed capable, qualified, and hard working attorneys (and support staff) at the OCC, the picture painted by the Corporation Counsel's Legal Service Report bears little resemblance to the evidence that has emerged from a 16-month study conducted by the DC Appleseed Center. Nor does the Legal Service Report's favorable review of OCC activities since April 1999 appear at all consistent with recent appraisals by judges of the conduct and handling of District litigation by OCC attorneys in the courts.¹³

Looking at OCC's experience in this regard over precisely the same period covered by the Corporation Counsel's May 31, 2000, Legal Service Report, DC Appleseed has no confidence that improvements made have resolved the OCC's serious problems. For example:

And, criticisms have continued to be levied by the courts after the period covered by the Corporation Counsel's May 31, 2000, Legal Service Report — i.e., May 2000 to the present.¹⁷

We recount these long-standing problems not merely to sound an alarm bell, but also to make clear that the challenges the OCC faces are so significant that they cannot be resolved overnight, or, in many respects, even over the course of a year. The commitment and dedication of the Corporation Counsel, the Mayor, and the D.C. Council will be needed to ensure that the OCC's shortcomings are not ignored or papered over, that their causes are understood and receive sustained focus, and that the resources and commitment needed to reform the Office are provided.

Several of the Office's problems undoubtedly have been exacerbated by the District's o% overall Financial and management troubles over the past decade. Not only have lawsuits frequently been brought against the District's poorly functioning agencies, but those agencies ha% e often been unwilling or unable to cooperate with OCC attorneys charged with defending the city. Moreover, failure to pay OCC attorneys at rates competitive with other government law offices, coupled with District-wide difficulties recruiting and paying personnel and procuring supplies, have also made it exceptionally difficult to improve the OCC's internal operations.

To resolve its problems fully, the OCC will need additional resources. Unfortunately, it is impossible to quantify OCC's financial needs with any precision at this time. Other than keeping track of the number of cases filed against and by the District, OCC does not collect adequate data to quantify the Office's staffing and resource needs. The OCC fails to track in any reliable way workload data or other performance measures (including number of cases, case outcomes, time in which cases are processed, and attorney time records). In the absence of reliable statistical data, it is difficult for OCC to make its case for a particular budget increase.

Nevertheless, we have attempted in this Report to estimate the additional resources OCC needs based primarily on comparisons to other city attorneys' offices. DC Appleseed's analysis reveals that turning the OCC into a consistently well-performing law office will require competitive salaries for attorneys (estimated at just over an additional $2 million annually), more paralegals and secretaries (estimated at just over an additional $1 million annually), a case management system (which will cost hundreds of thousands of dollars), and better training (which will cost at least an additional $50,000 - $100,000 annually).¹⁸ A portion of this $3 million (or more) in additional funds almost certainly can be recovered over time through increased efficiency and reallocation of resources. However, it seems unlikely that such measures would provide the OCC with the entire amount that it needs to implement essential improvements, particularly in the near term. Accordingly, reform of the OCC will require that the Mayor and the Council commit to funding the OCC at a higher level.

Even if relatively modest savings can be generated internally and most or all of the $3 million must be added to OCC's budget to enable effective reform, the costs associated with failing to provide adequate resources to the Office are unacceptably high. What is the value associated with delaying the permanent placement of a neglected child, failing to prosecute (or otherwise respond to) a juvenile crime, or failing to seek child support from a delinquent parent? In areas that have more quantifiable value - such as negotiating real estate deals for and defending damage claims against the District - the economic value of high-quality representation is apparent in the private sector: companies continue to hire top attorneys largely because they believe that better lawyering yields better bottom-line results. For such matters with an economic focus, the reality is no different for the District government.

B. Summary of Recommendations

Based on DC Appleseed's research, it is clear that, if the Office is to flourish, there are several specific changes that can and must be made to the operations of, and services provided b), the Off-ice of the Corporation Counsel. The reforms recommended in this Report fall into three general categories: ( l ) strengthen and support legal %t work on the front lines, (2) establish greater accountability, and (3) improve management systems and structure. A summary of our recommendations follows.

Due to the limitations on information available from the OCC, the recommendations made in this Report are based upon the best alternative information available: expect views (expressed in interviews) from employees, judges, and others familiar with the OCC; comparative information from other jurisdictions; and documents provided by OCC. While OCC did not have much of the data we requested, we received full cooperation and valuable insight from the Corporation Counsel, Robert Rigsby, and his staff throughout the preparation of this Report.

The OCC must significantly improve its basic operations so that it can move toward becoming an efficient and effective public legal advocate that protects the interests of the District and its residents in both the short and long term. We issue this Report, and the recommendations contained in it, with the recognition that many of the attorneys at OCC should be praised for their hard work in the past and recognized for their efforts toward improving the performance of the Office. And, Corporation Counsel Robert Rigsby is making a concerted effort to address several of the Report's recommendations — including the installation of a case management system and revamping of the evaluation process. We hope that the Corporation Counsel will continue his reform efforts in a manner consistent with this Report.

But the overall state of the Office is dire, and the residents of the District of Columbia deserve an improved, competent, and vigorous legal function that is perceived as such by the judiciary, the bar, and the public. Strong leadership will be critical for such positive reform to take hold and endure; the basic changes recommended in this Report must be driven from the top. No organization can function well without good leadership, which, in the case of the Corporation Counsel, means someone who has the legal, management, and political skills required for the job, and is committed to remaining with the Office for enough time to enable changes to take hold. Further, support and oversight by the Mayor and Council will be critical if lasting change is to be achieved. For the OCC to fulfill its duty to the public, both the Corporation Counsel and the District's elected leaders must devote time, energy, and resources to the OCC's revitalization.

II. REPORT METHODOLOGY

The DC Appleseed Center commenced a study of the OCC in the summer of 1999. While receiving cooperation from the OCC during our research. DC Appleseed conducted this study independently, without direction from any D.C. government personnel.

The DC Appleseed Center Corporation Counsel Project Team, consisting of six volunteers together with two members of the Center's professional staff (listed in the front of this Report), used the following methodology.

A. Identification of Issues

Based on preliminary meetings with representatives of the Mayor's Office, the OCC, and others in the public and private sector, the DC Appleseed Project Team created an outline of possible issue areas to address in this Report. These included:

DC Appleseed ultimately decided to focus on the first three issue areas. We chose not to address the fourth issue — the relationship between agencies and the OCC — because, pursuant to the recently enacted Legal Service Establishment Act, that set of relationships is in a period of flux. The fifth issue — the relationship of the OCC to different branches of government, referred to by many DC Appleseed interviewees as "identifying OCC's client" — involves an interesting set of questions. Ultimately, however, DC Appleseed decided that resolving such issues, while important, is significantly less urgent than improving basic functions, and that addressing such issues in this Report would distract from the more critical task at hand. Finally, the issue of privatization and outsourcing could not be adequately addressed given the state of existing data at OCC. While this Report makes reference to a few circumstances in which contract services might temporarily be retained, the complex issues of outsourcing and privatization are better pursued outside of the boundaries of this study.

B. Surveys

Based on the issues identified in these preliminary meetings, surveys were developed in an attempt to identify and quantify the challenges facing the Office. Surveys were sent to 566 persons with in-depth knowledge concerning the OCC: co-counsel and opposing counsel, judges, attorneys and other employees within D.C. government agencies, and all current OCC attorneys. The surveys sought performance ratings of the OCC's work and additional input on policy matters. DC Appleseed received 103 completed surveys, constituting a response rate of 18%. The responses contained in the surveys were tabulated and aggregated by type of respondent, question, and category of performance. A summary of responses is included as Appendix B, and a sample survey distributed by DC Appleseed is included as Appendix C.

C. Local Interviews

Using the data from and issues highlighted in the surveys, the Project Team established a written protocol covering issues related to personnel, work quality, internal management, accountability, and OCC/agency relationships. Over 30 potential interviewees were identified, of whom 24 agreed to a confidential interview. These individuals included current and former OCC employees (among them, four former Corporation Counsel), D.C. agency personnel, District of Columbia and federal judges, and others with perspectives on the OCC (including representatives from the D.C. Council, Financial Responsibility and Management Assistance Authority, and U.S. Attorney's Office). Each interview lasted from one-and-a-half to three hours, and was conducted by two or three Project Team members. Information gathered from the interviews was shared with the entire Project Team.

D. Comparative Data

With the help of the International Municipal Lawyers Association (the primary association for city attorneys), DC Appleseed identified five jurisdictions of comparable size to the District that are considered to possess well-run legal offices: Cincinnati, Ohio; Denver, Colorado; Nashville/Davidson County, Tennessee; Phoenix, Arizona; and San Francisco, California. DC Appleseed sent each jurisdiction's law office — as well as the District's Office of the Corporation Counsel - a written survey asking for information on (among other things) budget, office organization, personnel policies, and relationships with city/county agencies. Extensive written materials were obtained from each locality to supplement their survey responses. Finally, using a written protocol, DC Appleseed conducted follow-up telephone interviews with representatives of each jurisdiction's law office.

III. STRENGTHEN AND SUPPORT LEGAL WORK ON THE FRONT LINES

The main purpose of this Report is to develop Mays to strengthen the legal services provided to the District of Columbia by the OCC. To do that, the OCC must focus on strengthening and supporting the front line attorneys who provide such services. ices. This requires decent pay. training, support staff, resources, and supervision. Components of each of these requirements are lacking at OCC, contributing to work quality that is too often poor.

For the OCC to shift its orientation towards strengthening front line work will require more than adopting the particular recommendations made in this section. A cultural change will be needed. As things now stand, the perception among attorneys who perform the front line work at OCC is that their opinions, their concerns, and, most importantly, the factors that affect their ability to perform high-quality work, are not seriously considered by OCC management. If the Office is to be significantly strengthened, the needs of front line staff must be a major focus of the Corporation Counsel and his top advisors.

This section assesses the current quality of legal services provided by OCC attorneys; forecasts the impact of continuing the status quo into the future; and provides specific recommendations for strengthening and supporting the work of line attorneys in a manner that will improve the quality of those services.

A. Current State of Affairs: Key Findings of the Project Team

1. While There Are Many Good Attorneys at OCC, the Quality of Legal Services Provided by OCC Attorneys, on the Whole, Needs Significant Strengthening

Virtually everyone interviewed by DC Appleseed noted that many attorneys at OCC are good and deserve greater support and compensation. When looked at in the aggregate, however, the perception is that legal work at OCC is uneven and, in many cases, inadequate. Specifically, DC Appleseed's survey of OCC attorneys, judges, agency officials, and private counsel revealed significant weaknesses.

Striking among these survey responses is the substantial perception gap that exists between OCC attorneys and the judges before whom they practice regarding the quality of the legal services provided by OCC attorneys. Asked to rank OCC attorney performance on a scale of 1 (lowest quality) to 5 (highest quality), the 59 responding OCC attorneys and the 21 responding judges rated average OCC attorney performance as follows:

Category	Judges	OCC Attorneys	Disparity
Demeanor	3.38	4.02	0.64
Service	3.11	3.92	0.81
Knowledge	3.00	4.02	1.02
Practice Skills	2.91	3.87	1.04
Case Management	2.45	3.41	1.03
Settlements	2.06	3.45	1.39

Of all the "stakeholder" categories surveyed by the Project Team, judges ranked the performance of OCC attorneys lowest of all.^18b This perception gap suggests that current OCC staff- who obviously have a necessary role in improving the Office -- do not recognize all areas requiring improvement, or the extent to which improvement in performance is required.

2. OCC Has an Inadequate Number of Competent Support Staff

There is an insufficient number of support staff available to assist OCC attorneys, and many of those currently employed have not been trained, or are not otherwise able, to do their jobs. When compared to the five other legal offices surveyed by DC Appleseed, the OCC has the lowest ratio of secretaries and paralegals to attorneys. Specifically, OCC employs 27 such support staff for every 100 attorneys, whereas, in the five other jurisdictions surveyed, the composite average number of secretaries and paralegals is 45 per 100 attorneys, with a range of 31 to 61 per 100 attorneys.¹⁹ Not surprisingly, attorneys surveyed by OCC itself and interviewed by DC Appleseed repeatedly raised concerns about the number of support staff.²⁰

Most of those interviewed by DC Appleseed and many surveyed by OCC believe also that the quality of the existing support staff is deficient. The quality of secretarial and paralegal assistance received the lowest rating by OCC attorneys themselves of any performance category rated in DC Appleseed's survey (including, among others, practice skills, knowledge, settlement ratings, and service).²¹ Interviewees were particularly harsh when describing support staff, using terms such as "virtually nonexistent," "nonresponsive to requests," and "thin and weak."

3. OCC Attorney Salaries Continue To Be Too Low to Attract and Retain Attorneys of the Necessary Quality

OCC attorneys have long been paid lower salaries than attorneys with comparable credentials and responsibilities at other area government law offices. The D.C. Council acknowledged as much in 1998, when it established the District of Columbia Legal Service and provided that pay for OCC attorneys should be competitive with federal government attorney salaries.²²

Unfortunately, while the Legal Service Establishment Act has resulted in modest salary increases, it has not brought OCC attorney pay into line with that for attorneys who work for other cities surveyed by DC Appleseed, particularly at the lower end of the attorney ranks. Specifically, the average OCC attorney salary is $2,367 lower than the average in the other five Jurisdictions surveyed, even though the cost of living in the District is about tire percentage points higher than the average in the five other cities.²³ Thus, when adjusted for the cost of living, the average pay for an OCC attorney is over 56,500 less than the average pay for their counterparts in the five jurisdictions surveyed.²⁴

Entry level attorneys at OCC are especially underpaid: the entry-level salary is $40,373 per year. When salaries are adjusted for cost of living, the lowest paid OCC attorney makes less than an entry level attorney in any other of the five cities, with the average entry level attorney in the other jurisdictions making l9% more. Thus, even under OCC's new pay structure, entry-level OCC attorneys are significantly underpaid.²⁵

4. Pay Raises Are Not Timely Processed

Until it is resolved, the severe problem OCC has processing pay raises promptly will prevent OCC from attracting and retaining qualified employees, and improving its organizational culture. Pay raises for and promotions of OCC attorneys are routinely not put into effect for months, or sometimes even years, after they are approved. Moreover, according to those interviewed, back pay has historically not been given for the period in which approved pay raises are delayed.²⁶

The experience of OCC attorneys in this regard stands in sharp contrast to the experience of attorneys in other municipal legal offices DC Appleseed examined. When asked specifically, none of the people interviewed in those offices cited processing pay increases as a problem. Indeed, each of the five offices DC Appleseed examined provides promotions and salary increases promptly (within four to six weeks), and routinely provides back pay from the date of the promotion or salary increase.

Conversely, nearly every current OCC attorney with whom DC Appleseed spoke highlighted this problem as one of the most serious facing the Office. The issue of timely pay raises ranked prominently on the list of impediments to line attorneys' ability to do their work, compiled by OCC management from responses to an internal survey distributed to all staff., Based on these comments, it appears that this problem not only presents a barrier to retaining good attorneys, but also serves to distract those who remain from their primary responsibilities.

While not solely responsible, OCC contributes to pay raise delays.²⁸ According to sacral interviewees, pay increases that have been promised to attorneys sometimes sit on Super\ visors'' desks for months before they are forwarded to the Office of Personnel. Moreover, DC Appleseed is unaware of any circumstances under which personnel responsible for such delays were reprimanded or sanctioned for such behavior.

5. High Turnover Among OCC Attorneys Further (And Independently) Detracts from the Quality of the Office's Legal Services

The overall quality of work at the OCC also suffers from excessively high lawyer turnover in the Office. OCC reports a turnover rate among lawyers of 11% per year, whereas the composite average in the other jurisdictions surveyed by DC Appleseed is 7%. In several OCC sections, the turnover rate is remarkably high. The most dramatic example is in the Abuse and Neglect Section, where, as of the summer of 2000, only three of the 17 attorneys had been at OCC for more than one year. And, as recently as November 1999, the attorney in charge of the General Litigation Division reported a turnover rate of 64% for the prior 15 months.²⁹ Agency personnel and opposing counsel interviewed by DC Appleseed complained that, as a result of the high turnover rate, the OCC attorney working on a case often changes while the case is in progress, making it extremely difficult for the OCC to provide good legal advice or litigation services to its clients or to negotiate settlements with opposing parties.³⁰

This is not to say that all turnover is negative: One former senior manager at the Office from the early 1990s observed that some turnover, particularly at the supervisory levels, can in fact help the Office avoid stagnation; keep bad habits from becoming entrenched; and be healthy and morale-boosting (including by creating promotion opportunities). A current OCC attorney who has been with the Office nearly 20 years — agrees, stating that some of the older attorneys who staff with the Office become "ossified." It is clear. however, that the degree of turnover at OCC — particularly among front line attorneys — continues to be too high. and that this detracts from accomplishing the Office's mission.

6. Training of OCC Attorneys (and Managers) Is Deficient

According to 17 of DC Appleseed's 24 inters interviewees, OCC attorneys and managers do not receive a adequate training.³¹ This perception is not surprising, considering that the paltry budget for training for all OCC staff: in FY 2000, the training budget was 526,000, or somewhere between $44 and $87 per attorney.³² In fact, this amount has remained constant for the past five years.³³ DC Appleseed's research revealed that some enterprising managers have arranged training for their staffs, but that the Office-wide program has not been well-run and is at least perceived to be not particularly relevant by many attorneys. Line attorneys interviewed reported receiving very little notice of training sessions. At least some OCC attorneys have participated in a 2-week trial advocacy "basic training" program run by the U.S. Attorney's Office. Other attorneys described receiving no training in trial procedure prior to their first trial appearances, notwithstanding requests for such training.

Training opportunities that appear on paper for OCC attorneys may not, in fact, ever materialize. One interviewee noted that the Office apparently has a training schedule for new attorneys - which other new attorneys interviewed by DC Appleseed had never seen - of approximately 30 training lectures ostensibly given by senior attorneys. This attorney, however, had received only one such lecture. Moreover, the OCC does not appear to have adequately pursued the many possible opportunities available from training providers outside the OCC including the U.S. Attorney's Office.

Similarly, while management training at OCC has improved over the past year, more needs to be done. As in many other legal offices, OCC promotes attorneys to management roles based on their performance as attorneys, often without much assessment of their potential managerial skills.³⁴ As a result, many OCC managers do not have strong management or supervisory skills when they assume supervisory responsibilities and, thus, could benefit from management training.

The District of Columbia Council implicitly acknowledged the Office's training deficiency in 1998, when it established the District of Columbia Legal Service and specifically directed the Corporation Counsel to, inter alia, "establish an annual mandatory program of continuing legal education for attorneys in the Legal Service, other than attorneys employed by independent agencies."³⁵ As required by the Act, the Corporation Counsel recently reported that, note notwithstanding OCC's inadequate training budget, OCC lawyers have received adequate training through "in-house trainers."³⁶ This contradicts the experience of the OCC attorneys with whom DC Appleseed spoke.

The Council also explicitly recognized the need for management training,³⁷ some of which has been provided by the OCC, as outlined in its Legal Service Report.³⁸ Most significantly, OCC provided a day-long training program for all managers in April 1999, which alone appears to have met the legal requirement for management training in that year.³⁹

Nonetheless, the OCC does not yet appear to have established more than an ad floc management training program, either for managers, line attorneys, or support staff. Indeed, the commitment has not been made by the Mayor and the Council to provide any more training than is required under the Legal Service Establishment Act. Specifically, the D.C. Council's Judiciary Committee requested a $30,000 increase in the OCC's FY 2001 training budget, but that increase was not included in the consensus budget sent to Congress.⁴⁰

7. The Lack of Senior Non-'Management Attorney Positions Contributes to Ineffective Attorney Supervision

Unless they become supervisors, there are very few senior positions to which competent attorneys can be promoted. This results in one of three outcomes, none of which positively contributes to the Office's operations: ( l) the experienced and effective senior attorneys in the Office who have no particular affinity for management or desire to become managers are nevertheless promoted to supervisory positions, because they are the only promotions the Office can make; (2) the experienced and effective senior attorneys in the Office receive no promotions; or (3) the experienced and effective attorneys leave either because they do not wish to take on supervisory roles or because they are not promoted.

Two former OCC supervisors interviewed by DC Appleseed criticized the Office's record of promoting good attorneys to management positions to increase their salaries regardless of whether the v liar a management skills or potential. To make matters worse, OCC does not provide these new managers with management training and often keeps their caseloads at such levels as to make it impossible for them to manage effectively. One current OCC attorney (who has been with with the Office for nearly 20 years) believes that the lack of a non-management advancement track within the Office both hinders recruitment and increases turnover. OCC management states that the Office is in the process of trying to create more senior attorney (nonmanagement) positions, but this effort apparently has been stymied by the requirement that a new civil service position description be created.

8. OCC Staff Attorneys Receive Inadequate and Ineffective Day-to-Day Management, Support, and Supervision

OCC line attorneys are "thrown to the wolves" when trying cases or performing other legal work, and, in many cases, receive little, if any, assistance from older, more experienced attorneys. Featured prominently in DC Appleseed's interviews were reflections on the absence of daily support and supervision of line attorneys and the inadequate oversight of attorney work product. Some attorneys went so far as to state that their supervisors had little to no idea what the line attorneys were working on. Senior management acknowledges this as one of the most pressing problems at OCC,⁴¹but it is unclear what OCC is doing that will resolve the problem.

Several DC Appleseed interviewees cited as a reason for inadequate management the absence of good midlevel managers at OCC, many of whom, they said, left the OCC during the budget crises of the 1990s. As a result, according to a current OCC supervisor, an entire generation of potential division deputies was lost, leaving current section chiefs - many of whom whom themselves are not sufficiently experienced to handle complex litigation - with no good role models.

The area of settlements offers a particularly acute example of how this problem manifests itself in poor work quality. By most accounts, OCC attorneys need to improve their performance in the area of settlements.⁴¹ According to those interviewed, several sections at OCC neglect to assess cases for potential settlement value shortly after the case has been filed, and fail to consider thoughtfully or to track at all settlement offers when they are made. As a result, the Office often has inadequate information to decide which cases should be litigated and which should be settled. Indeed, five interviewees, including two OCC attorneys, cited this lack of assessment as a major factor in OCC's litigating cases that should be settled and vice versa.

The failure to assess routinely the exposure associated with cases also likely results in the misallocation of staff. Because government legal offices are often outstaffed by opponents, it is especially important that the OCC allocate staff thoughtfully. One of the processes critical to making rational staff allocation is the early assessment of the value of cases. According to those interviewed by DC Appleseed, the nexus between settlement values and staffing levels is not routinely considered at OCC, causing the OCC to staff complex cases in which plaintiffs seek enormous judgments at levels that are not much higher than staffing for small cases. While it is unreasonable to expect the District (or any government) to match private resources in such cases, regular and careful assessment of cases would improve the allocation of staff.

One attempt to improve supervision has not been well received. Among DC Appleseed interviewees, there was general consensus that the Office rule requiring two managers to sign subordinate attorneys' motions, briefs, and pleadings is an ineffective substitute for — and in some cases may detract from — real management and supervision.⁴³ Among other things, by the time a pleading must be signed, division and section supervisors are unlikely to have (if they ever have) sufficient time to review the pleading carefully, let alone direct that necessary changes be made. One relatively junior OCC line attorney noted that the five managers in this attorney's division (a deputy, assistant deputy, and three section chiefs) spend an inordinate amount of time reviewing subordinate attorneys' pleadings, rather than providing other forms of needed management, supervision, or mentoring. Another interviewee described this whole process as "not working as intended" and "largely cosmetic." The "two signature" rule was one of the aspects of current operations most criticized by employees on an internal OCC survey.⁴⁴

B. Impact of Continuing the Status Quo

1. Recruiting is Hampered

Ten of DC Appleseed's 24 interviewees specifically cited difficulties in recruiting high-quality attorneys as one of the major obstacles faced by OCC in improving the quality of the legal services it provides. High-quality young attorneys seeking opportunities to excel in the practice of law generally, or in public service specifically, are unlikely to be attracted to an office which is poorly perceived by judges and others in the community, and which in fact provides:

And, attorneys seeking work to the District of Columbia have many other potential employers in both the government and private sectors. In this market especially, improving OCC work conditions is essential if good lawyers are to be recruited.

2. Retaining Lawyers is Unnecessarily Difficult

Many attorneys leave a OCC — often for federal government law offices — because of the pay disparity. Two interviewees cited low pay as one of the primary reasons attorneys leave OCC, with one of them stating that OCC attorneys often leave for other government jobs that may pay as much as 50% more than the OCC.

One attorney who worked at OCC in a supervisory capacity in the late 1990s described the low attorney salaries as fostering a descending spiral of work quality and morale. With low pay, attorneys cannot be hired fast enough to replace those who are leaving. Further, because of the low salaries, the lawyer said, the new attorneys that are hired often are not very good, and may indeed be worse that the ones they replace. This diminishing number and quality of attorneys in the Office makes life increasingly hard for those who remain — making it more likely that many of them will leave, as well.

In addition to low pay, problems in processing pay raises has particularly pernicious effects. Over the past year alone, several attorneys have threatened to sue the District, have actually sued the District, or have threatened to resign from OCC because they believed that they would not receive raises any other way (or at all).45 Most of the current OCC employees interviewed by DC Appleseed stated that non-timely pay raises are a primary reason that attorneys leave OCC for other jobs. And according to several interviewees, senior management's tolerance of internal and external delays in processing pay raises indicates a lack of concern for line attorneys and is a central reason for distrust and resentment of senior management among those who remain.

3. Work Quality is Uneven

Without adequate training, consistent supervision, and decent support staff, professional work quality would suffer no matter who could be hired or retained as attorneys. These shortcomings translate not only into lawyers not having the professional tools to do their jobs, but the primary resource of the Office - attorney staff time - being spent on administrative functions. Specifically, OCC attorneys whom the Project Team interviewed estimated spending anywhere from 25% to 50% of their time on tasks that could be accomplished by support staff time which necessarily is taken out of researching and preparing cases. These conditions undoubtedly have negative impacts on the efficiency and quality of the OCC's work product.

There is substantial evidence that the remaining problems cited above - lack of advancement opportunities, non-timely pay raises, and poor pay - deeply affect morale. Both DC Appleseed's inters interviews s and internal OCC surreys bear this out. Thus, for those attorneys who ho remain note notwithstanding these problems. OCC can be a demoralizing place to work - a fact that cannot improve work quality.

C. Recommendations

In order to address the deficiencies described above, DC Appleseed makes the following recommendation:

1. Provide Additional and Better Support Staff

New staff to support the work of line attorneys need to be hired at OCC, and some existing support staff should be terminated. Given developments in technology (including the universal use of personal computers), the need for secretaries in legal offices has diminished. As a result, paralegals are often relied upon more heavily to support legal work. The OCC ought to evaluate carefully its support staff and consider shifting a portion of the personnel budget from secretaries to paralegals.⁴⁶ Assuming that the number of attorneys remains constant, 36 new support staff would be needed to bring the District into line with other city attorneys' offices. The total cost of such additional support staff would be about $1.3 million annually.⁴⁷

In addition, given the deep concerns about the quality of secretaries, it is equally - if not more - important that OCC take steps to improve performance in existing positions. In addition to improving performance assessments and training,⁴⁸ OCC should consider reclassifying some secretarial positions to enable higher salaries to be paid that will attract candidates more qualified to be legal secretaries. Existing secretaries qualified for the newly classified positions should be retained subject to assessment of their skills and, where possible, training. To the extent that existing secretaries are not qualified to fill the new posts, temporary employees should be hired until the new positions are filled.

2. Bring OCC Attorney Salaries to Par with Attorney Salaries at Similar Government Law Offices

For all the reasons discussed above, offering salaries that are competitive with federal agency salaries is a patently necessary - but not sufficient - condition for improving the quality of legal services provided by the OCC. It is already the policy of the District, as embedded in the Legal Service Establishment Act. It is absolutely essential to attracting and retaining quality attorneys. Without data regarding the appropriate number of attorneys at OCC, it is difficult to assess the aggregate cost of such a pay raise. However, if the number of OCC attorneys remains constant, it would cost $2.2 million to bring OCC attorney salaries into line with those at city attorneys' offices elsewhere.⁵⁰

3. Take Immediate Steps to Resolve Pay Processing Difficulties

While resolving the pay raise processing problem will require improvements in the D.C. Office of Personnel,⁵¹ the OCC must take steps immediately to ensure that OCC personnel do not continue to contribute to the delays. Specifically, the Corporation Counsel must make clear to everyone within the Office that pay raises are to be processed and sent to payroll within two weeks of attorney reviews, and that there will be significant consequences (i.e., downgrading of evaluations and, for repeated offenses, demotion or termination of employment) for parties who are responsible for delays. In addition, until it is resolved, the Corporation Counsel should take every opportunity to make clear to the Mayor and others in the administration that this problem is an enormous impediment to retaining quality personnel.

4. Substantially Increase the Amount of Training Available - Mandated and Funded - for OCC Attorneys and Managers

The OCC requires substantial additional training resources in order to improve the quality of legal services provided by the Office. Comparable offices that the OCC might look to for good training programs include the Phoenix, Arizona, City Attorney program - which operates a formal 12-week training program for new attorneys - and the Denver, Colorado, City Attorney program - which requires its attorney-managers to take six half-day management courses offered by the city government. Indeed, DC Appleseed recommends that OCC provide such management training to all OCC attorneys promoted to management positions.

Such training does not come without a cost. For example, the Denver City Attorney's Office, with only 98 attorneys and 208 total employees, has a year 2000 training budget of $44,000, or $212 per employee.⁵² To implement a training program of equal quality to the Denver program, additional funds need to be allocated or appropriated beyond the District's current allocation of between $44 and $87 per attorney. For example, at $212 per employee, the District would have to allocate approximately $93,000 for OCC training, or a $67,000 increase over the current training budgets.⁵³ And, this number is almost certainly low, because, unlike Denver, the District does not now have in place a citywide government training center.

A representative from the U.S. Attorney's Office interviewed by the Project Team stated that OCC attorneys are invited to participate in the USAO training program when there is space available. This representative believes that OCC sends few attorneys to USAO training because (1) OCC cannot spare attorneys from the Office, and (2) OCC's training efforts are not very well organized. Another interviewee gave as an example of a successful partnership a circumstance in which attorneys from the District's Office of Banking ("DOB") were sent to the FDIC for training, after which the FDIC loaned to DOB two examiners - at no cost - for six months to help DOB set up its examination systems.

A public/private partnership could be established to create a truly elite training program for OCC attorneys, which could also serve as an excellent recruiting tool. The Center for Excellence in Municipal Management, a public/private partnership that trains municipal managers, provides a useful model for this approach.

5. Create More Senior Non-Management Positions

For reasons discussed above, the OCC must have some alternative for its potentially good career attorneys - other, that is, than (1) promoting them all into management positions, for which many will be unsuited or not interested in filling, or (2) not promoting them at all. The obvious solution is to create a real "senior counsel" track in the Office by increasing the number of senior, non-management positions into which good, experienced attorneys may be promoted. If an obstacle to this reform is the need to draft a new civil service position description, someone should be assigned to the task.

6. Establish Systems to Foster Greater and More Regular Oversight and Support of Line Attorney Work, Including Settlements

Regular meetings (at least weekly) between supervisors and line attorneys should be mandated at OCC. Each of these meetings need not take long, but their existence will help foster both the practice and a culture of oversight which is desperately needed at OCC. The selection and implementation of a case management system (discussed in Section V) will enable such meetings to be more useful, as both supervisors and line attorneys will have greater access to workload information in advance.

DC Appleseed also recommends that the OCC institute a regular, mandatory process for reviewing the settlement value (whether monetary or otherwise) of all cases in which the claim is for more than a certain amount. The assessment should be done by two attorneys (and perhaps more for claims seeking over certain amounts or otherwise deemed particularly important), and should be performed when cases are first filed and whenever a settlement offer is made. For cases in which money is at issue, settlement values and offers should be maintained in a centralized case management system together with case outcomes. These data should be periodically reviewed to assess attorney performance, assign attorneys to cases, and allocate resources within sections, divisions, and the Office as a whole.

The OCC should also establish a mentoring program. Each new line attorney should be assigned to one or more senior attorneys who can provide advice on routine and more complicated matters. These mentors may be, but need not be in all cases, the line attorney's immediate supervisor. Indeed, they need not even be employed by OCC. Given the apparent limitations of in-house expertise at OCC in several areas, the OCC should explore with the private bar or other government law offices the possibility of establishing such relationships with attorneys outside of the OCC.^53b

Finally, OCC should review the effects of its "two signature" rule, and modify it to ensure that it does not cause more harm than' good. Whatever new policy is adopted, it should reflect the fact that some legal documents require a greater degree of scrutiny then others, depending upon the sensitivity and complexity of the matter involved, and should require different levels of document review accordingly.

7. Retain an Experienced Legal Services Manager

In order to provide the resources line attorneys and managers need to do their jobs well, the OCC needs the sustained effort of an experienced Legal Services Manager. Attorneys who are actively engaged in legal practice are often diverted from fulfilling their management responsibilities. Moreover, attorneys are generally promoted because they are good lawyers, not because they are (or might be) good managers. In a government setting such as the OCC, the need for professional management is perhaps even greater than in other settings. In D.C. government particularly, systems such as personnel and procurement are difficult to navigate, systemic problems have historically been neglected, and resource limitations create additional challenges.

In the past few years, OCC has moved in the right direction. The past two Deputies for Management have been Grade 17 and have worked to oversee and manage all of OCC's administrative matters, among other duties. To fulfill the need for top management, it is critical that the Legal Services Manager have a strong background in legal administration, as well as the clear support of the Corporation Counsel. Whether the current organizational position and salary of the Legal Service Administrator is sufficient to attract and retain such a person is unclear. The OCC should make this position at least equal in pay and stature to the Corporation Counsel's other top deputies.

IV. ESTABLISH GREATER ACCOUNTABILITY

A. Current State of Affairs: A Subjective and Ineffective Evaluation System

By all available indications, accountability has been sorely lacking at OCC. Too few supervisors, line attorneys, and support staff hold themselves accountable or have been held accountable for OCC's less than satisfactory results. And, at the time of this study, no system has yet been put in place to alter these circumstances, although steps recently taken to revamp the evaluation system appear to be headed in the right direction.

1. The Current Performance Evaluation System

The process for evaluating performance at OCC is in a state of transition. New performance standards were established for staff attorneys for the rating period that ran from April 1, 1998 through September 30, 1999. Evaluations for that rating period were completed in December 1999.⁵⁵ OCC claimed to have instituted new basic Individual Accountability Plans (IAPs) for the rating period that began on October 1, 1999.⁵⁶ However, as the provisions of the rules of the Legal Service Act mandating IAPs did not apply to FY 2000, OCC did not utilize them during the most recent rating periods.⁵⁷ Thus, the evaluations due on November 9, 2000 will be based on a performance appraisal system that is virtually identical in form and content to that of the previous year.⁵⁸

For the FY 2001 evaluation cycle (October 1, 2000 - September 30, 2001), OCC plans to use the new system which uses Individual Performance Plans (IPPs) and Individual Development Plans (IDPs) for management and supervisory personnel, and IAPs for non-supervisory attorneys. IPPs and IDPs are scheduled to be completed by October 31, 2000⁵⁹ and first year IAPs by November 30, 2000.⁶⁰ As the FY 2001 cycle is just beginning and the evaluations of the FY 2000 cycle are not yet in, our analysis was based on the last complete cycle for which there are results (FY 1999).

The attorney evaluation system that has been used for the past several years is subjective, elaborate, and ineffective. According to several interviewees, the evaluation system at OCC is, at best, cosmetic, and, at worst, worthless. This is particularly troubling because the evaluation system operates in a culture where accountability for results is sorely lacking.

The evaluation system provides that supervisors and supervised meet to set the relative weights to be given to each of several performance categories. There are five major performance categories for all attorneys and one specialized category for litigating attorneys:

The deficiency however, does not lie in the categories, but in the standards of performance (or lack thereof). Attorney performance appraisals are based on subjective comparisons to expectations for attorneys in the same grade. There are no clearly defined competency standards nor are there any standard quantifiable outcome measures against which attorneys in each grade are measured. For example, attorneys are not asked to meet filing deadlines 98% of the time, they are instead asked to meet or exceed the expectations for the other OCC attorneys to meet the efficiency standards. OCC guidelines do not have measurable standards for efficiency or any other performance category.⁶¹ Yet, in its Legal Service Report to the Mayor, OCC lauds its "Rigorous new performance standards .... "⁶²

This very subjective comparative evaluation is coated with a patina of objectivity. The evaluation instruments used by OCC are mathematically elaborate. The Attorney Work Plan and Performance Appraisal form is approximately a dozen pages in length and contains a precise computation formula for performance evaluations. Specifically, attorneys are given one of four ratings for each of five major performance areas, with a point total associated with each rating." An attorney's overall rating is then based on an aggregation of the five performance ratings, wherein each rating is given a relative weight based on the importance of the performance area to the particular job. Thus, the system implies a scientific approach, even though the evaluation process is, at its core, arbitrary.

Unfortunately, the evaluation system used by OCC over the past few years has resulted in significantly inflated evaluations. As a result, high individual performance rates are routine while OCC performance is uneven. If we are to believe both the opinions of OCC work from those outside the Office and OCC's internal performance assessments, the agency often fails to perform adequate legal work, but everyone is doing a great job.

For the period from April 1997 through March 1998, no lawyers received unsatisfactory ratings and 93.6% received ratings of excellent or better.⁶⁴ In the following year, when the Legal Service Establishment Act required new evaluation systems that tied pay increases to evaluations, still no lawyers received unsatisfactory ratings and an astonishing 97.2% received ratings of excellent or better.⁶⁵ These results directly contradict the evaluation of performance by every external stakeholder group surveyed by DC Appleseed, in which no performance measure averaged higher than a 3.8 on a scale from 1 to 5 (the equivalent of a B- grade).⁶⁶

In the course of our study, we asked stakeholders to review their own experiences and assess the portion of OCC personnel, if any, that they judged to be incapable or unwilling to satisfactorily perform their duties. Estimates of non-performing attorneys ranged from 10-30%. Numerous examples of incompetent, uncooperative, and negligent behavior were cited to support these conclusions.

Support staff performance is a major OCC problem. Ten of DC Appleseed's 24 interviewees reported that many of OCC's support staff were either incompetent, unhelpful, or both. OCC's internal employee survey yielded the following comment from an attorney (and nearly identical responses from at least four other attorneys) regarding support staff: "There is absolutely no accountability for support staff, no work ethic, no supervision, and too much personal time, late arrivals and early departure."⁶⁷ And yet, no support staff received an unsatisfactory performance evaluation and 78.4% were rated excellent or outstanding.⁶⁸

Supervisors, peers, and direct reports of the non-performing personnel are all very much aware of these employees' existence and transgressions. Yet, with few exceptions, infractions are not regularly documented and corrective action is nearly never taken. Thus, non-performing attorneys and support staff are retained without remediation, penalty, or censure.

B. Impact of Continuing the Status Quo

1. Low Morale

Morale at OCC has been adversely affected by the retention of poorly performing attorneys and the tolerance of non-performing support personnel. Organizations with staffing level constraints can ill afford to have significant portions of their work forces performing below peak efficiency. Highly performing personnel are pressed to assume the burden abandoned by their unwilling or unable colleagues. Soon these workers refuse to continue, or stumble beneath the weight of the added burdens.

It is easy to see how acceptance of poor work, low productivity, and bad attitude can affect the morale of those who depend on other people's work product and those who must carry a portion of their load. Less obvious, but just as pernicious, is the effect that these factors have on overall Office performance. Failure to act against non-performers evinces poor and uncaring management. If the "people above" don't care enough to act in the organization's best interest, why should the "people below?"

2. Poor Quality Work

As noted earlier, judges as a group among our survey respondents rated OCC attorneys most harshly.⁶⁹ The several published judicial opinions cited in the Introduction and Executive Summary of this Report reflect a justifiable judicial impatience with the Office's performance. This has been reported to result in judges sometimes exhibiting a predisposition to disfavor OCC lawyers and their clients. Six interviewees, including one federal judge, stated that OCC attorneys are sometimes at a disadvantage with judges simply by virtue of being OCC attorneys.

It is often the case that one must demonstrate ability before receiving the benefit of the doubt. However, even good lawyers feel the extra weight of the stigma painted upon them with the broad brush of OCC incompetence. They report having to work extra hard to prove themselves worthy in the eyes of the court.

Judges were not the only ones who were critical of OCC. Whether attributed to lack of training, lack of capacity, or lack of desire, many of those interviewed felt that the performance of OCC attorneys was too often inadequate.⁷⁰ Opposing counsel rated OCC attorneys' overall performance at only three on a scale of one to five. (This is only slightly higher than the judges' overall rating of 2.96.) One interviewee related a case in which a fellow attorney went on vacation, leaving the interviewee to cover a case for him while he was gone. Upon reviewing the case, the interviewee discovered that the vacationing attorney had failed to take the most elementary of actions, contacting key witnesses. The case was dismissed for lack of evidence when the interviewee took it to trial.

As reflected in Sections III and V, there is a need for greater supervision and oversight of the work of OCC attorneys. However, managing performance alone, without a continuous process that includes rewards, remediation, and removal, will prove inadequate. A system that neither rewards quality nor punishes ineptitude loses the capacity to differentiate between the two.

3. Inefficiency

Poor performance by and inadequate numbers of support staff cause OCC attorneys to be terribly inefficient. Line attorneys at OCC reported spending between 25% and 50% of their time performing tasks that should be done by paralegals or secretaries (such as filing papers, photocopying, and answering phones). For example, every attorney in the Abuse and Neglect Section calls hospitals in the District regularly to determine whether each individual case they are handling involves a history of abuse or neglect. One paralegal or secretary could be assigned to perform all such calls. In this and other areas, an enhancement of support staff would enable lawyers to spend more time on substantive legal matters.

C. Recommendations

While evaluation systems used by many (if not most) government law offices at the federal, state, and local levels probably need to be strengthened, there is a particular need to improve the system used by OCC. Fulfilling the critical tasks of improving accountability and strengthening morale at OCC necessitate that the Office do a better job of assessing the relationship between each employee's performance and the Office's success (or failure) and of acting upon those assessments. Accordingly, DC Appleseed recommends that the OCC create an effective performance management system; review staff performance under this model and take steps to reward, train, or fire employees accordingly; and hold managers accountable for their own performance and that of the employees they supervise.

1. Transform OCC's Evaluation Process into a Performance Management System

Performance management is a systematic process where continuous feedback is provided to reinforce the behaviors that are desired and necessary to achieve an organization's goals. Good performance management systems share several characteristics:

Money is not the sole motivator in a good appraisal system. By emphasizing competency, organizations communicate their belief in professional excellence. Competencies are the knowledge, skills, and behaviors that are key to the successful performance of one's duties.⁷¹

In this and several other areas, the new FY 2001 IAP process represents an improvement over the previous model, but still requires substantial additional improvement if it is to become part of a performance evaluation system that, in fact, promotes accountability. For example, while the FY 2001 evaluation system is on target when it states that individual IAP goals should be "aligned to the employees job duties, special projects, key initiatives, specific competencies. and/or training requirements,"⁷² it misses the mark by failing to align the individuals' goals with those of OCC. When an agency's vision, strategy, and goals are communicated throughout the organization, employees understand their role in supporting the strategy and are motivated to perform. Thus, if OCC wishes to improve its success rate, its collection rate, or its on-time rate, it should set specific measures for the organization and drive behavior by mandating the same measures in each and every employee's own IAP. This is also the way to establish causality between individual performance and organizational improvement.⁷³

Another area where the new system falls short is that it is based only on downward feedback. Employee evaluations should be based upon more than supervisory assessments. Feedback should be solicited from both internal and external customers as well as from work team peers.

Evaluations should also include employee self-assessments. Although the FY 2001 process provides for input by employees in creating the IAPs, employees should also be required to conduct an annual independent self-assessment prior to meeting with the supervisor and prior to the supervisor's final evaluation. In each self-assessment after the initial year of employment, employees should evaluate whether they met their prior year's goals; if not, why not; and what steps they plan to take and support they will need to meet those goals during the following year. This process should encourage employees to take responsibility for their work and their professional development, while strengthening the relationship between supervisors and employees.

Effective performance systems create "balanced scorecards" for employee evaluations. They contain quantifiable measures of both process (e.g., workload, overtime, etc.) and outcome (e.g., success rates, cost savings, etc.). These measures are balanced with those that focus on employees' meeting competency standards and career development goals. The new system pays homage to this by stating that, "Goals may include personal development needs ...organizational goals ...or career/professional development goals."⁷⁴ The focus on development demonstrates the commitment to individuals' career goals and aspirations. However, the permissive nature of the guidelines leaves the balance of the scorecard to the discretion of the individuals. OCC can guarantee a balance by mandating that a minimum number of goals be set in each area.

OCC should also make sure that their chosen quantifiable measures are defensible. Using SMART goals (Specific, Measurable, Attainable, Realistic, and Time related) is a best practice. However, OCC should avoid the temptation of assuring success by setting measures too low. An example of this might be OCC's current goal of obtaining favorable decisions in 75% of all appellate, trial, and administrative actions. According to the statistics presented by OCC to the Mayor, all but one of the enumerated divisions and sections had met or passed this goal by 1999.⁷⁵ Again, outside assessments of OCC's work strongly suggest that, if in fact these goals were met, the goals were set too low.

In good performance systems, evaluations are not exercises without meaning or consequence. They are directly related to subsequent action by the organization. Compensation levels and bonus pools are often based on both overall organization and team or unit level performance. Distribution of those pools is based on individual performance assessments. The new performance management system has not addressed this issue. The system should be constructed to provide a compensation differential to those individuals and groups that exhibit superior performance. The failure to differentiate among high performers, average performers, and non-performers has made the existing system meaningless. Care must be taken to prevent the new system from suffering the same fate.

Notwithstanding our stated concerns, OCC is to be recognized for its progress to date in improving the evaluation system. Positive elements include:

Every effort should be made to incorporate best practices as well as lessons learned from other jurisdictions into the new system.

2. Using a "Competency Model," Review Staff Positions and Performance and Act Accordingly

Many of those interviewed by DC Appleseed suggested that some personnel - particularly support staff and attorneys handling certain complex litigation and other specialized practice areas - did not have the basic competencies to do their jobs well. To resolve this problem, the OCC should immediately assess competencies needed for each position (or set of positions), assess whether current personnel possess those competencies, and either train or terminate employees who do not. The development of a "competency model" provides the opportunity to redefine positions and provides the basis for conducting an agency-wide personnel assessment. OCC should:

Undertaking this type of action will not be easy. Firing incompetent personnel is not common at OCC. Five of DC Appleseed's interviewees reported that OCC non-performers were not dismissed either because it was too difficult, because they could not be replaced at available salary levels, or because they would be replaced by people who were worse.

This defeatist doctrine must be abandoned if fundamental change is to be achieved at OCC. To attract new hires, to retain good workers, and to create and sustain a high-performance workplace, OCC must cease to offer safe haven to those who will not or cannot perform their duties. Non-performers should be removed and replaced with competent employees. If competent employees can't be found in a timely manner, temporary contract personnel should be considered. If large numbers need to be let go, entire functions could be temporarily contracted out until such time as suitable regular employees can be hired.

The first steps of this cultural transformation may already be underway. One OCC manager interviewed reported being able to fire two attorneys and replace them with better ones, contrary to popular opinion that firing OCC employees is extremely difficult and replacing them even more so. However, enabling this change across the organization will require the leadership and serious commitment of the Corporation Counsel, as well as the support of the Mayor and the D.C. Council.

3. Hold Managers Accountable

Standards for management performance should be based on the competency model established for OCC. Although specific standards may vary from organization to organization, it is not unusual to find that supervisory competencies and measures are developed in the following areas:

In a 360° appraisal system managers evaluate themselves, receive downward feedback from their supervisors, horizontal appraisals from their clients, customers, colleagues and peers, and upward feedback from the people they supervise (including agency personnel). Stakeholders provide feedback on the areas appropriate to their interactions. For instance, OCC clients would evaluate managers on matters related to customer service and satisfaction. Clients can submit evaluations on a case-by-case basis or they could be sent periodic customer satisfaction feedback forms. Managers would also be evaluated by their subordinates on their people management/development skills (i.e., coaching/mentoring).

c. Hold managers accountable both for their own actions and for the performance of the attorneys and staff whom they supervise

Supervisors should be judged on their own achievements as well as the performance of their units and the accomplishments and development of the individuals they supervise. By measuring unit performance, managers will be motivated to build effective teams and develop an atmosphere of collective achievement. It will also encourage the development of processes to build quality into the work products being produced by the unit. At OCC, specific performance goals should be established for each organizational unit and managers' personal performance should be based, in part, on achievement of group goals.

Holding managers responsible for those they supervise improves the flow-down of accountability throughout the organization. It opens lines of communication and lets employees know that management is genuinely concerned about their performance. It encourages managers to document the behaviors that form the basis of promotions, merit raises, strategies for development, and dismissal for cause.

Attorneys in managerial positions must be more than good legal practitioners, they must be good (or at least competent) managers. Those that are not should be considered for newly created senior attorney positions (See Section III.C.5) if they are willing and able to serve in such capacities. If not, after the requisite remedial training, failure to fulfill these duties should result in demotion or dismissal.

V. IMPROVE MANAGEMENT SYSTEMS AND STRUCTURE

Front-line management of attorney work at OCC is, at best, uneven. In several divisions, conscientious managers keep track of attorney workloads, meet weekly with attorneys to review their cases, and attempt to provide attorneys with the help that they need, whether reviewing briefs or serving as a second-chair in litigation. However, there is substantial evidence that suggests that a number of managers fail to provide basic supervision or oversight. DC Appleseed's research revealed evidence that cases are sometimes not assigned until many days or weeks after they are received, pleadings served in the Office fail to make their way to the attorney(s) assigned, section chiefs make no effort to track caseloads systematically, and attorneys are left entirely on their own even if they are new or are handling complex cases of a kind they never before have handled.

There are several reasons that 'such management problems persist. Most significant among them is a pervasive failure to hold line attorneys accountable for their work, and managers accountable for oversight responsibilities. These issues are addressed in Sections III and IV of this Report. This Section addresses another set of reforms in management practice and structure that are critical to resolving the problems OCC has managing and retaining attorneys. While they cannot alone change the culture at OCC to one that demands accountability and provides support, the systemic changes suggested in this section - including obtaining a case management system and flattening the organizational structure - are essential. Without these improvements, good managers will struggle unnecessarily, poor ones will not receive the training or discipline they require, and work quality in the Office as a whole will remain inadequate.

A. The Need for a Case Management System

1. Current State of Affairs: The Absence of Office-Wide Case Management and Time Records at OCC

Case management at OCC is poor. Among all of their substantive responsibilities, managing caseloads ranked lowest among OCC attorneys surveyed by DC Appleseed. Other groups surveyed by DC Appleseed support this conclusion: all but one ranked case management fifth out of six practice area responsibilities. Significantly, this perception is shared outside OCC by both those involved in litigation (judges, co-counsel, and opposing counsel) and those who receive non-litigation services from OCC (agency personnel).

An enormous impediment to resolving this problem is that the OCC currently has no comprehensive computerized case management system to track information and cases within the Office. The ability of large organizations to manage their work is directly influenced by their capacity to measure workload, productivity, and results. That is as true for government agencies as for private and public companies. Without a case management system, the OCC is severely limited in its ability to manage its most basic product - the matters on which its attorneys work - or its most important resource - the time of its professional staff. On a daily basis, the absence of a case management system makes the jobs of line attorneys, supervising attorneys, and upper-level managers unnecessarily difficult.

A well-functioning case management system captures the following data for general litigation matters: case name, case number, the judge assigned to the case, opposing counsel, the OCC attorney (or attorneys) assigned to the case, docket information, and reminders to counsel and counsel's supervisors. Relevant procedural deadlines are also maintained, and notes can be added by the OCC attorney working on the case. For non-litigation matters, somewhat different (but equally important) information is tracked, including the type and status of the matter and relevant deadlines to be followed. With such information, line attorneys are better able to track and organize their work, while supervisors can more easily oversee the significant caseloads that their attorneys handle. This is especially true in a large office such as the OCC, where the typical supervisor oversees seven or eight attorneys.

Well-designed case management systems also facilitate management at an aggregate (or macro) level. Nashville's well-.designed case management system, for example, enables managers to access readily computer-generated calendars, caseload reports (by attorney, by agency, and other database fields), time record reports (by attorney, division, and the Office as a whole), and trends in workload. Such data greatly facilitate (and in some cases are indispensable to) fundamental Office functions, including distributing resources among divisions, assessing supervisors' performance, and devising and justifying budget requests.

While some individual divisions, or groups, within the OCC have set up their own systems for tracking their work (including both computerized and manual efforts), the OCC has no Office-wide system in place. Moreover, most OCC attorneys and other professionals do not keep time records or otherwise track the amount of time they spend working by the day or by individual matters.

At the time of this Report's release, the OCC had begun to test - among 50 attorneys - a case tracking system provided by a private vendor.⁷⁶ The Office further reports "plans to have a fully implemented system by March 2001."⁷⁷ This appears to be a step in the right direction. However, several DC Appleseed interviewees recounted prior attempts that ultimately failed to investigate and test case management systems. And, at the time of this Report's release, no Office-wide system was yet in place; nor was there any evidence that necessary funds have been dedicated to pay for installation and support of the system being tested.

2. The Impact of Continuing the Status Quo: Inadequate Tools for Supervision, Monitoring, and Workload Allocation

The divergent (and often inadequate) case management practices in OCC's divisions have several negative effects. First, the work of attorneys in some sections is not effectively tracked or managed. Even for those supervisors who attempt to do so, most must depend on reports from each line attorney as to the number of cases being handled by that attorney. Second, no such data is available Office-wide on a regular basis, making reliable comparative and composite information non-existent. Consequently, there is no tool to enable or promote active affirmative oversight of attorneys' caseloads.

The absence of a case management system is also an impediment to resolving the frequent delays in assigning cases at OCC. Cases are not always promptly assigned to an OCC attorney when they come in, and some cases (or other assignments, such as legislative drafting projects) fall through the cracks. In several employee interviews, we received anecdotal evidence of negative impacts on the District (such as cases unnecessarily dismissed for lack of evidence) directly attributable to the fact that the cases were not assigned to an OCC attorney in a timely manner. Opposing counsel interviewed by DC Appleseed recounted several instances in which OCC attorneys were unprepared and told opposing counsel that the case has been assigned to the attorney at the last minute. One current OCC attorney interviewed by DC Appleseed noted that, because the OCC has no Office-wide case management system, managers can have (at most) only the most general sense of the number of cases the attorneys they supervise are working on, and the level of activity in those cases.

Some of these observations undoubtedly relate to situations in which attorneys are carrying heavy caseloads or are not (for

DC Appleseed Center D.C. Office of the Corporation Counsel: Core Remedies for Lasting Reform December 2000

D.C. OFFICE OF THE CORPORATION COUNSEL: CORE REMEDIES FOR LASTING REFORM

Acknowledgments