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Municipal Research News - Ethics in Government
The Care and Feeding of a City or Town Attorney
Do you put them in a box with holes poked in it? Do you only let them out when you need an attack dog? There are so many questions! Some others might be: Who appoints the attorney? What's the role of the council in the selection process? Is an attorney even required? Who does the attorney represent? Must the mayor, manager, or council follow the attorney's advice? This article provides some basic information about the position of city or town attorney, addresses some of these questions, and offers suggestions to better understand the attorney's services and how to use them.
The Basics
State law either requires or allows a city or town to have an attorney or otherwise make provision for obtaining legal services.1 In cities and towns that have established the office of city or town attorney by ordinance, the mayor (or manager)2 fills the position,3 subject, except in towns, to possible confirmation of the appointment by the city council,4 and the attorney serves at the mayor's pleasure.5 The city council sets the salary and other compensation for this office.6 If the attorney filling this position is not "in house," the mayor appoints a person or firm into the position, subject to possible council confirmation, and the council approves the contract with the person or firm appointed. If the attorney is an officer, even if the position is filled by contract, the mayor has the authority to terminate the person or firm occupying the office. If the attorney function is provided for by a professional services contract and not by an officer, the council selects the person or firm with whom to contract, approves the agreement or contract, and possesses the authority to terminate the relationship.7
What Does the City or Town Attorney Do?
Although there is some direction provided for by state law, in most cities and towns, the attorney does what the council and mayor require him or her to do. The second class city statutes provide that the attorney shall advise city "authorities and officers" on all legal matters relating to the business of the city, approve all ordinances as to form, represent the city in all actions brought by or against the city or its officials, and such other duties as may be set by ordinance.8 There is little statutory direction given for towns; the attorney is to merely "advise the town authorities and officers in all legal matters pertaining to the business of the town."9 No direction is given for code cities, other than the city council may prescribe the "authority, duties and qualifications" of all appointive officers, which would include the city attorney, if that position is created as an office.10
In reality, of course, the city attorney does as directed by ordinance or assignment, limited by available personnel, time, or budget. If an attorney is a city or town officer, he or she may be expected to provide written and oral advice as needed; attend council and staff meetings; handle litigation and proceedings before administrative bodies; attend (and provide advice at) council, board, and commission meetings, as needs and availability dictate; prepare or review ordinances, resolutions, contracts, and agreements; prosecute criminal cases; assist or handle claims against the city or town; and such other duties as may be prescribed. In jurisdictions that contract for services, the attorney or office may perform some or all of the above tasks, while in others, because of budgetary constraints or custom, the attorney's role may be limited to handling litigation, where an attorney's presence may be required.
Some Rules and General Understandings11
- Who is the attorney's client? Simply put, the attorney's client is the city or town as an entity. He or she is neither the mayor's attorney, nor the council's attorney, although the attorney may represent the mayor or the council or individual members, in their official capacity, not as individuals, on behalf of the city or town as a whole. The attorney may advise or represent an employee or volunteer as well, when the person requires assistance because of acts taken or planned within the scope of his or her employment or volunteerism. From time to time the interests of the mayor or manager may differ from that of the council (or vice versa). The attorney's responsibility is to provide legal assistance to both. Once a policy decision is made by the council, however, the attorney should act according to the decision, assuming the policy is consistent with the law and the attorney's ethical obligations. Similarly, if an issue is administrative in nature, the attorney would act according to the mayor's or manager's direction, once a decision is made.
- Since the attorney represents the municipality as a whole, the assistance or advice he or she gives may not always be what an official wants to hear. While the attorney can please some officials some of the time, he or she may not be able to please all of the officials all of the time. If the mayor wishes to terminate an employee who is popular with the council, the attorney may assist the mayor in taking the steps necessary to do so. If the council adopts a policy inconsistent with the mayor's or manager's recommendation, the attorney defends the council's policy, as, after council action, it has become the city or town's policy. Once again, it is the attorney's responsibility to support the decisions of the city or town as a whole, not necessarily each individual official's position on a particular issue.
- If the process is going to work, there must be COMMUNICATION, early and often. Once a problem or potential problem is suspected, talk to the attorney or otherwise seek legal assistance.12 Attorneys are human; they may not know all the answers to all possible questions immediately. To get the best, most reasoned response, ask your legal questions at the beginning of the process, rather than later when time is short and positions are more likely set. It usually is far easier to take action after good legal advice is given, than it is to later defend an action that may not be consistent with good law or practice.
- Share. Since the attorney's client is the city or town as an entity, recognize that the legal advice he or she gives should be timely shared with other interested officials. "Gotcha" may be good for playing tag; it is not so good for the efficient and effective performance of important governmental functions.
- Attorneys don't know everything, all the time, immediately. Municipal law is complex. It requires knowledge of many subjects. Attorneys can't know the answer to every question immediately. Recognizing that, it is best to ask questions early so that the attorney can do necessary research and review important facts before giving an answer. Of course, not every situation allows time for research; in those instances, the attorney may only be able to give a tentative answer or indicate that he or she "will get back to you." Such a response can often be the best response, because hurried, incorrect advice, if followed, may have costly consequences.
- Sometimes "I dunno" is the only answer that can be given. It would be nice if there was an answer to everything. What is nice, though, is not always a reality. Sometimes a statute may not address a particular subject, a statute that does is ambiguous, regulations have not been issued, or there are no court decisions on point. Sometimes the best an attorney can do is to make an educated guess. That may not be the desired response, but that is reality.
- If you are going to ask the attorney for advice, be prepared. Your time is important, as is the attorney's. (Furthermore, if the attorney is on contract, he or she may be billing for the time taken.) For economy and efficiency purposes, know what information you need from the attorney and, if facts are important, what those facts are. Since many legal answers depend upon the facts of a situation, be sure that the facts you provide are complete and accurate. Failure to provide the necessary facts or a complete question can result in incorrect legal advice, which is of no use to anyone.
- Must you follow the attorney's advice? No. Nothing says that you have to follow the attorney's advice. However, there is the potential for liability, maybe even personal liability, if you do not follow the attorney's advice and a legal action is filed. For example, if the attorney advises that the council cannot hold an executive session for a particular purpose and the council does anyway, there is the potential for personal liability if a challenge is made and is successful.
- Communicate your expectations, and make sure that your expectations are what you can expect. If an immediate response is needed, explain that to the attorney and see if your timetable can be met, given the other projects or issues the attorney may be working on. (And try to be realistic in your expectations.) Also, please recognize that your request should be consistent with your city or town's policies. An individual councilmember may not be able to make a particular request, unless a majority of the council approves and there are sufficient funds available to pay the cost. You may want–expect–the attorney to attend all council meetings, but budgetary constraints and attorney availability may not permit the attorney's presence at all meetings.
- Can't Municipal Research just be our attorney? Inviting as that possibility might be, the answer is "No." Municipal Research is available to provide technical services, including legal advice, to city and county officials, but its advice does not supplant that available from the local attorney. The city or town attorney is the first–and last–line of defense. If there is an issue that is dividing the public, or causing problems within the government, it is the city or town attorney who best knows the facts, the personalities, and how a problem can be answered. And if a problem results in litigation, a contested hearing, or some other challenge, it is the city or town attorney who provides representation; Municipal Research cannot. And, from a strictly legal standpoint, Municipal Research's contract with the state does not provide for, or allow, direct representation. Municipal Research can help, and we want to help! But local issues still must be addressed locally.
- Okay, but if I call Municipal Research, will our conversation be shared with others? Municipal Research will try to keep confidences, if that is requested. Remember, though, Municipal Research serves all city, town, and county officials, including others who may have a different approach to an issue than you might have. If our consultants tell one person an answer, they are prepared to provide the same answer to others, if the same question is asked and the facts are not changed. While some might think it, Municipal Research does not favor one person or office over another; that's not our mission.
With fresh air and good care, your attorney will flourish and Municipal Research will continue to provide assistance to local officials, working together for excellence in local government.
1RCW 35A.23.081 for second class cities ("shall"); RCW 35.27.070 for towns ("may"); and RCW 35A.12.020 and RCW 35A.13.090 for code cities (provision shall be made for obtaining legal counsel either by appointment or reasonable contractual arrangement).
2This article uses the term "mayor" as being the appointing officer; if the city or town is organized under the council-manager form of government, it is the manager who appoints the attorney, if the attorney's position is an office. While this article does not specifically review the position of city attorney in a first class city, it should be recognized that many of the considerations applicable to other classifications also apply to first class city attorneys.
3RCW 35.23.021; RCW 35.27.070; RCW 35A.12.090 and RCW 35A.13.080.
4RCW 35A.23.021 for second class cities and RCW 35A.12.090 and RCW 35A.13.080 for code cities; town councils do not have the power of confirmation. RCW 35.27.070.
5RCW 35.23.021, RCW 35.27.070, RCW 35A.12.090, and RCW 35A.13.080(2).
6RCW 35.23.091, RCW 35.27.130, RCW 35A.12.020, and RCW 35A.13.090.
7RCW 35.23.440(32), RCW 35.27.160, and RCW 35.11.010.
8RCW 35.23.111.
9RCW 35.27.250.
10RCW 35A.12.020.
11This section is inspired by and borrows from the article "10 Tips for Creating a More Effective City Council-City Attorney Relationship," authored by Michele Beal Bagneris and printed in the July 2006 issue of Western City, a publication of the League of California Cities.
12City, town, and county officials can turn to the Municipal Research and Services Center for assistance. In addition to the Center's inquiry service, it provides publications and training on a variety of legal issues.
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