Michele Beal Bagneris is city attorney for the City of Pasadena and president of the League’s City Attorneys Department.

City attorneys have a unique role in working with city councils, especially in light of the attorney’s ethical and other obligations. Unlike the city manager, the city attorney often does not have daily interaction with council members, and the council’s primary interaction with the city attorney is in city council meetings. The city council-city attorney relationship works best when there is open communication, mutual respect and trust. This article offers 10 tips to help council members create a more effective relationship with their city attorney.

1. Remember — the city is the client. The council majority gives direction on behalf of the city. The city attorney represents the city as a whole, and the city attorney’s ethical obligations to the city are set out in the State Bar of California’s Rules for Professional Conduct. If the council’s direction to the city attorney conflicts with the city attorney’s ethical obligations to the city, the city attorney must resolve this conflict in favor of the city. The city attorney’s duty of loyalty and confidentiality is owed to the city and the council as a whole, rather than to an individual. Keep in mind that information a council member shares with the city attorney is not confidential with respect to other council members, and the information may be disclosed to the entire council.

The council majority provides the primary means by which the city gives direction to the city attorney. Occasionally, when a council contains majority and minority factions, it may provide direction to the city attorney by a majority vote over the objection of the council members in the minority. Once the council has reached a policy decision, the city attorney is bound to respect that decision unless his or her ethical obligations to the city require otherwise. Regardless, the city attorney must provide balanced legal advice to both the majority and minority factions.

2. Everyone is on the same team. When the city attorney identifies potential legal problems, it is to protect the city. Because the city attorney represents the city as a whole, he or she may sometimes be in the difficult position of informing the city council that some action the council wishes to take may be contrary to the law. In these instances, the city attorney’s role and intent is not to pass judgment about the wisdom of the council’s action, but to exercise an ethical duty to ensure that the council fully understands the legal ramifications of its actions. If the council proceeds with the action despite the city attorney’s warnings, the city attorney has an obligation to defend the council’s action to the extent that his or her ethical obligations allow.

3. Consult the city attorney at the earliest opportunity on issues so that input can be meaningful. If an agenda item raises a legal question for you, you should ask the city attorney as soon as possible so that he or she can fully research your question, and provide a complete and accurate answer. Sometimes it’s not possible to alert your city attorney that you have a legal question beforehand, in which case it is appropriate to seek an answer during the meeting. Often the city attorney will be able to answer the question but occasionally may need to do some research first. Council members should understand that “I don’t know the answer to that question, but I’ll research it and get back to you” may be an appropriate response.

It’s also helpful to alert the city attorney beforehand when you think you may have a conflict of interest related to an agenda item. If you raise a conflict issue just prior to or during the meeting, the city attorney may be inclined to give an overly conservative answer, particularly when the situation is complex. It is in your best interest to identify potential conflicts as early as possible, and bring conflict questions to your city attorney to allow sufficient time for adequate research.

4. Be prepared when you speak with the city attorney so the time is well spent. When consulting the city attorney, it’s important for you to clearly understand what you want from the conversation. If you’re asking about a specific fact pattern, you should try to be fully informed about the facts and communicate them to the city attorney, who may be hesitant to give a legal opinion if incomplete information requires him or her to speculate.

5. Be clear about expectations and priorities. Although differences of opinion may exist on a city council, it’s important that the council clearly communicates what is expected from the city attorney and what its priorities are. This should be done on a case-by-case basis, as well as in the context of the city attorney’s overall performance. Annual evaluations are one method the council may use to communicate its expectations and priorities. Early and frequent communication also leads to effective preventive legal advice that can save money for the city and taxpayers.

6. Give the city attorney adequate time to research issues and answer questions. The law’s complexity requires adequate time to research and answer legal questions. The council may ask the city attorney how much time he anticipates is needed to provide an answer. Or the council can suggest a deadline, such as by a specified council meeting, and ask the city attorney whether the deadline can be met.

7. Provide legal staff with the necessary tools to do the job. Numerous tools exist to help city attorneys in their job. These include online legal research services, written legal treatises, software, adequate staffing and educational seminars and conferences, such as those conducted by the League’s City Attorneys Department. Such tools help the city attorney to more effectively provide legal support and enhance the quality and timeliness of the work product.

8. Always disclose all pertinent facts and objectives. In order to provide correct legal advice, your city attorney needs to fully understand the facts that may affect the legal analysis. It may not always be clear to a council member which facts are relevant and which are not. Your city attorney is in a better position to sift through the facts and determine their relevancy. It’s also important for your city attorney to understand the council’s ultimate policy objectives. This can ensure that the city attorney is proposing appropriate legal options that the council may consider for reaching their objectives.

9. Recognize that a concrete answer is not always possible when the law is not clear cut. Your city attorney may not always be able to give you a yes or no answer. Given the law’s complexity, common answers you will receive from your city attorney include “It depends,” “The law is unsettled in this area,” or “There is a case before the courts right now that may provide some clarification.” City councils can become impatient with these types of answers, but they do not represent timidity on your city attorney’s part or an unwillingness to take a legal stand. Simply put, legal questions don’t always have clear answers. The city attorney has an obligation to bring this complexity to the city council’s attention so that its decisions are fully informed as to the legal context. While legal complexity may make decision-making more difficult, the decisions that result will be fully informed and made with complete consideration of any potential legal risks involved.

10. Understand that the city attorney is an independent and objective legal advisor. While the city attorney can and should be involved in the policy-making process, the city attorney alone does not make city policies. The city attorney must defer to the policy decisions of the council majority. This sometimes results in the city attorney being accused of tailoring his or her opinions to support the majority at the expense of the city. In California, with the exception of 11 cities, the city attorney is not an elected position — it is appointed, and the city attorney has an obligation to support the policy objectives of the council majority to the extent legally and ethically possible.
 

Council members will have a more effective relationship with the city attorney when they recognize the limitations and responsibilities placed on the city attorney both legally and ethically. Having a realistic expectation of what your city attorney can and can’t do will also help the relationship. Effective communication is important; so is understanding that your city attorney may have to deliver a message you don’t like. Maintaining a good relationship with your city attorney can assist in smoothing over the occasional rough patches to the benefit of the city council, city staff and the general public.

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

This article appears in the July 2006 issue of Western City
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