Separating LA City Attorney’s Duties is Unacceptable

CROSS TALK - (Editor’s note: this letter was sent to all 14 Los Angeles City Council members on July 20, 2011) Your vote yesterday to “seek a report on other ways of obtaining legal services at City Hall” and look into “the possibility of separating the city’s misdemeanor criminal prosecutions from the work of crafting legislation and representing the city in lawsuits” is unacceptable.

  See L.A. Times article “L.A. Council to look at use of lawyers other than City Attorney.”  And CityWatch “Council Wants Its Own Counsel”]

First and foremost, the action is an affront to the voters of Los Angeles who cast their ballots for our current City Attorney.  Those ballots were cast for a City Attorney who would fairly and impartially interpret and apply the law in both criminal and civil matters.  This specifically includes issues relating to opinions and findings on city law and how it applies to development and public safety matters.

Simply stated, your effort to strip the City Attorney’s office of its Charter-mandated duties is truly reprehensible and proves more than ever that an independent City Attorney is precisely what this City needs.

You will note that Charter Section 271** (see below) clearly states the powers and duties of the City Attorney.  The use of the mandatory language “shall” is used throughout.  There is no discretion afforded the Council on what the duties of the City Attorney should be.  Section 271 is attached so that you can refresh your collective memories.  Guidance on the use of the word “shall” is provided below:

"In common, or ordinary parlance, and in its ordinary signification, the term 'shall' is a word of command, and one which has always, or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears; but the context ought to be very strongly persuasive before it is softened into a mere permission," etc.[People v. O'Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)]

What we really believe is happening is that this City has in our current City Attorney someone who does not play political games, does not blindly support special interests and isn’t afraid to say “no” to the Council when it attempts to do something outside the law.  We have someone who isn’t afraid to take on tough issues or special interests even if doing so is unpopular with the Mayor, the Council or the special-interest elite.

It is precisely because our current City Attorney isn’t beholden to political and special-interest forces that he was able to defeat political-insider and special-interest favorite then-Councilman Jack Weiss.   It is precisely for this same reason that the Council is looking to eliminate the power of a City Attorney they can’t control.

This City Council has tried to cut the budget of the City Attorney to force him into submission – he figured out a way to do more with less and they failed. They tried to circumvent advice provided by the City Attorney – they were rebuked in court and failed.  They have tried to badmouth the City Attorney in the press and in the City Hall bubble – and failed to change the public’s opinion of our City Attorney.  In this latest desperate and illegal attempt to strip the City Attorney of his mandated duties and powers, they will fail again.

While we appreciate Councilmember Garcetti’s concern that a clearly life-and-death valet parking ordinance has been in the works for over two and a half years, we must point out that his angst over a delayed ordinance represents an acknowledgement that the Council has defunded the City Attorney to the extent that it no longer has the resources to fulfill its Charter-mandated duties.  

We will be immediately seeking legal advice as to whether the Council has overstepped its authority and violated the Charter in underfunding this critical part of our City’s infrastructure.

Yesterday’s vote has  exposed what has long been clear to many:  The City Council is far more interested in political games and manipulating the City to favor their benefactors than they are in solving this City’s most critical problems, including the reduction of key first-responder services throughout the city, a structural fiscal problem including billions in unfunded liabilities, streets that are deteriorating before our eyes and crushing traffic that naturally flows from allowing development without adequate infrastructure.  These and a hundred other issues are far more important than a valet parking ordinance -  or spending time voting on studying ways to violate the Charter.

In a normal world, when an executive of a company saves that company over a hundred million dollars in legal settlements, resolves long-standing issues that have eluded his predecessors and has an exemplary success rate, and manages all of this with far fewer resources than his predecessor, that executive would be rewarded with not only praise, but also more resources to do even more good work.  

Unfortunately, in this City, if you don’t tell the Council what it wants to hear, and your opinions don’t always tilt the playing field toward the special interests, you are seen as the enemy – despite your successes.  Only in this City could someone who is, according to Councilmember Garcetti, a “brilliant courtroom tactician” be stripped of his Charter-mandated powers and duties.   Logic would dictate that a “brilliant tactician” is exactly what this City needs right now.

We understand that the Council is used to getting its way, the law be damned.  Not this time though.  The voters of this City elected a City Attorney to fulfill the duties as provided in the Charter.  Only the people can change that, not a disgruntled and belligerent City Council.  

We reject this wholly improper effort and will oppose it in court if the Council continues down this ill-conceived path.  If the Council attempts to violate the Charter in this regard, it can be assured that the people are paying attention and will fight back.

(Michael Eveloff is President of the Tract 7260 Homeowners Association and Jim O’Sullivan is a principal at FixTheCity.org.  This letter was sent to all 14 Los Angeles City Council members on July 20, 2011.)

Tags: Los Angeles City Attorney, City Council, Charter, city council motion, City Attorney duties

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**Sec. 271.  Powers and Duties.
The powers and duties of the City Attorney shall be as follows:
(a)     The City Attorney shall represent the City in all legal proceedings against the City.  The City Attorney shall initiate appropriate legal proceedings on behalf of the City.
(b)     The City Attorney shall be the legal advisor to the City, and to all City boards, departments, officers and entities.  The City Attorney shall give advice or opinion in writing when requested to do so by any City officer or board.
(c)     The City Attorney shall prosecute on behalf of the people all criminal cases and related proceedings arising from violation of the provisions of the Charter and City ordinances, and all misdemeanor offenses arising from violation of the laws of the state occurring in the City.
(d)     The City Attorney shall approve in writing the form of all surety or other bonds required by the Charter, or by ordinance, before the bonds are submitted to the proper body, board or officer for final approval, and no such bond shall be approved without approval as to form by the City Attorney. Except as otherwise provided in the Charter, the City Attorney shall approve in writing the form of all contracts before the contracts are entered into by or on behalf of the City.
(e)     The City Attorney shall keep records of all actions and proceedings in which the City or any officer or board is an interested party, and copies of all written opinions given by the City Attorney’s office.  The City Attorney shall comply with all requests for information from the Mayor or Council, and shall report on a regular basis to the Mayor and Council on all matters of litigation, in a form and at times specified by ordinance.  In all litigation involving potential financial liability of the City, the City Attorney shall keep the Mayor and Council informed as to the status and progress of litigation.
Sec. 272.  Control of Litigation.
The civil client of the City Attorney is the municipal corporation, the City of Los Angeles.  The City Attorney shall defend the City in litigation, as well as its officers and employees as provided by ordinance.  The City Attorney may initiate civil litigation on behalf of the City or the People of the State of California, and shall initiate civil litigation on behalf of the City when requested to do so by the authority having control over the litigation as set forth below.  The City Attorney shall manage all litigation of the City, subject to client direction in accordance with this section, and subject to the City Attorney’s duty to act in the best interests of the City and to conform to professional and ethical obligations.  In the course of litigation, client decisions, including a decision to initiate litigation, shall be made by the Mayor, the Council, or boards of commissioners in accordance with this section.  However, the decision to settle litigation shall be made in accordance with Section 273.
(a)     Council.  The Council shall make client decisions in litigation involving matters over which the Charter gives the Council responsibility.
(b)     Mayor.  The Mayor shall make client decisions in litigation involving matters over which the Charter gives the Mayor responsibility.
(c)     Boards.  The boards of the Proprietary Departments, the Ethics Commission, the Board of Fire and Police Pension Commissioners, the Board of Administration of the Los Angeles City Employees’ Retirement System, and the Board of Administration of the Water and Power Employees’ Retirement System shall make client decisions in litigation exclusively involving the policies and funds over which the Charter gives those boards control.
(d)     Interpretation of Section.  The City Attorney shall have the authority to make the determination regarding who is authorized to make client decisions on behalf of the City in accordance with the principles of this section and accepted principles of representation of municipal entities.




CityWatch
Vol  9 Issue 59
Pub: July 26, 2011