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HomeMy WebLinkAboutCity Attorney - Suggested Qualifications for Elected City At10013 /- "d. 44a�-- INTER-DEPARTMENT COMMUNICATION TO: COUNCILMEMBER DAVE GAROFALO FROM: GAIL HUTTON, City Attorney DATE: August 7, 1996y �GoaAc�o� SUBJECT: Qualifications for elected City Attorney RLS 96-227 (Inquiry No. 96-32) Currently the qualifications for a person to be a candidate to be the elected City Attorney pursuant to Huntington Beach City Charter Section 309 are that the person be duly licensed under the laws of the State of California and to have been engaged in the practice of law for 3 years prior to election or appointment. These qualifications are less than the requisite qualifications of a principal deputy in this office You have suggested that the minimum qualifications of the elected position be increased and have solicited my input on the issue. Herewith are my suggestions and comments: A. THE ROLE OF THE CITY ATTORNEY IN CITY GOVERNMENT The City Attorney is an independent elected official, designated by the City Charter as the corporate legal officer for the City and head of the City law department. The permanent employees of the City law department are employees of the City and members of the City's personnel system, who work directly under the supervision of the City Attorney and not within the supervisorial sphere of the City administrator, but for housekeeping and administrative purposes are subject to the City's rules and regulations. THE CITY ATTORNEY AS CORPORATE COUNSEL The City Attorney is the corporate counsel of the City and is required to provide independent legal advice on the corporation's behalf. In this capacity the City Attorney is not the attorney for individual members of the council. The City Attorney serves City officers and employees including elected officials in their official capacity as officers or employees of the corporation as they act for the City in the course and scope of their employment. The City Council, City Administrator and Department Directors are bound to request the advice of the City Attorney for corporate matters, the City Attorney is required to render such advice. The requestor heeds or rejects such advice at his or her peril. 2 ° Page 2 Councilmember Garofalo City Attorney Qualifications 2. THE CITY ATTORNEY AS MANAGER In the day-to-day conduct of the City's legal affairs the City Attorney manages the office. The City Attorney must have the requisite skills to perform this important professional management function. Lawyers are not trained as administrators. For this reason many similarly sized private law offices hire administrators to handle the daily operation of the office and assign a senior attorney to manage the firm's business matters. A managing partner is thereby constrained by the management demands from directly handling much of the firm's caseload. The circumstances are similar in the public sector. A candidate for City Attorney therefore needs to have had such experience in the management of what might be termed a "medium sized" law firm. 3. THE CITY ATTORNEY AS LAWYER To administer and manage the legal affairs of the City and the performance of deputy attorneys and law clerks in a prudent manner, the City Attorney is required to be well educated in the law, be a licensed practicing attorney with broad legal experience, preferably in municipal law. The City Attorney cannot hope to be expertly knowledgeable and current within the many areas of law he or she must face each day. An effective City Attorney needs to know how to direct the staff to a proper result and to have the experience to recognize inappropriate legal direction while relying on the City Attorney's legal staff or outside counsel with the specialist knowledge necessary to represent the City's position. 4. THE CITY ATTORNEY AS POLITICIAN A City Attorney, to be elected, needs to have the skills of a practicing politician to present his or her qualifications to the electorate. B. THE NECESSARY QUALIFICATIONS Standards for the elected position of City Attorney must be objective and ascertainable. 1. TECHNICAL COMPETENCE The candidate should demonstrate currency of membership in the state bar as an adequate assurance of technical competence. 2. EXPERIENCE The candidate should have sufficient years of experience as a manager in a law firm of similar size as the City's and dealing in municipal affairs. 2/bs/opinion/qualific/8f7/96 Page 3 Councilmember Garofalo City Attorney Qualifications' 3. RESIDENCY A elected official should be an elector of the City. RECOMMENDATION Currently, these are inadequate qualifications established in the Charter for a candidate to this important public office; I offer the following options for your consideration: A ballot measure to amend the Charter stating: "Section 309 of the Charter of the City of Huntington Beach is hereby amended to read as follows: "To be eligible to become City Attorney the person shall: Option 1 - be an attorney at law, licensed and in good standing under the laws of the State of California for at least the (six years) (ten years) prior to election to the office and have been actively and substantially engaged in the practice of law in the State of California for at least the (six) (ten) years prior to election to the office. Option 2 - be an attorney at law, licensed and in good standing under the laws of the State of California for at least the (six) (ten) years prior to election to the office, have been actively and substantially engaged in the practice of law in the State of California for at least the (six) (ten) years prior to election to the office and with three of such years of experience as a managing partner or managing associate in a private law firm of six or more attorneys each of whom was actively and substantially engaged in practicing law. Option 3 - be an attorney at law, licensed and in good standing under the laws of the State of California for at least the (six) (ten) years prior to election to the office, have been actively and substantially engaged in the practice of law in the State of California for at least the (six) (ten) years prior to election to the office and have served as a city attorney (or deputy city attorney with managerial experience) for three successive years in an office of six or more attorneys each of whom was actively and substantially practicing law representing the City. and 2/bs/opinioNqua1ific/8/7/96 Page 4 Councilmember Garofalo City Attorney Qualifications (b) Any candidate for the office of City Attorney shall be a resident of and remain a resident during his/her entire term of office. The City Attorney shall have the power and may be required to: (Wording to be the same as current Huntington Beach City Charter Section 309 except for the substitution in the text of reference to both genders where the male gender now occurs.) CONCLUSION It is submitted that adoption of any option other than option (1) is infeasible. Other options, although politically persuasive, place too great a burden on the City elections official, the City Clerk, to decide if a candidate actually meets the minimum qualifications and, it is feared, would subject such,a process to costly legal challenge. GAIL HUTTON, City Attorney /k Attachment: H.B. City Charter §309 c: Hon. Members of the City Council Connie Brockway, City Clerk Michael T. Uberuaga, City Administrator Ray Silver, Asst. City Administrator 2/bs/opinion/qualific/8/8/96 Section 309. CITY ATTORNEY. POWERS AND DUTIES. To become and remain eligible for City Attorney the person elected or appointed shall be an attor— .' ney at law, duly licensed as such under the laws of the State of California, and shall have been engaged in the practice of law in this State for at least three years prior to his election or appointment. The City Attorney shall have the power and may be required to: (a) Represent and advise the City Council and all City officers in all matters of law pertaining to their offices. (b) Prosecute on behalf of the people any or all criminal cases arising from violation of the provisions of this Charter or of City ordinances and such state misdemeanors as the City has the power to prosecute, unless other— wise provided by the City Council. (c) Represent and appear for the City in any or all actions or proceed— ings in which the City is concerned or is a party, and represent and appear for any City officer or employee, or former City officer or employee, in any or.all civil actions or proceedings in which such officer or employee is con— cerned or is a party for any act arising out of his employment or by reason of his official capacity. (d) Attend all regular meetings of the City Council, unless excused, and give his advice or opinion orally or in writing whenever requested to do so by the City Council or by any of the boards or officers of the City. (e) Approve the form of all contracts made by and all bonds and insur— ance given to the City, endorsing his approval thereon in writing. (f) Prepare any and all proposed ordinances and City Council resolutions and amendments thereto. (g) Devote such time to the duties of his office and at such place as may be specified by the City Council. (h) Perform such legal functions and duties incident to the execution of the foregoing powers as may be necessary. (i) Surrender to his successor all books, papers, files, and documents pertaining to the City's affairs. Section 310. CITY CLERK. POWERS AND DUTIES. The City Clerk shall have the power and shall be required to: