Shawn Vestal: Voters will have a say in whether to create independent city attorney

A few weeks back, at a City Council meeting dominated by public comment about an abortion-related resolution, a less heated but important matter went largely unnoticed.

The council voted to put a significant change to the city charter on the November ballot: a proposal to make the city attorney’s office independent, selected by both the City Council and mayor for a set term, rather than a political appointee of the mayor.

If voters approve the change, it would increase the emphasis on the city attorney’s need to represent the whole city and eliminate some built-in incentives to act only as the mayor’s attorney, dependent on the boss’ good will.

“It’s just a good government thing,” said City Council President Breean Beggs, who brought forth the proposal.

If approved, it would give the City Council more authority in the selection of the city attorney as well as a say on whether the city attorney initiates or settles legislation. In that sense, it represents another realm in which Beggs and the council majority have taken aim at some of the unilateral authority of the strong mayor and looked to take some of that power back to itself.

The mayor has complained they are undermining her authority, and they are. Or maybe it’s more correct to say they are asserting theirs. Woodward’s performance on the job, particularly what some on the council see as her secretive, uncooperative and high-handed manner of interacting with them, has produced a natural backlash.

She’s tried to jam things down their throats as if the council were nothing but a rubber stamp. It doesn’t take a genius to predict how other elected officials, with their own authority under the charter, might respond.

So, when she dragged her feet on homelessness right out of the gate, the council passed laws requiring the city to provide for the homeless population during weather emergencies and setting deadlines for the administration to make such plans. When she initially put unformed plans with a price tag for the Trent shelter before them, they balked. When she surprised them by announcing the location of an East Central police precinct – after pledging to work with them on the final decision – the council passed a law giving itself authority over decisions about where to locate city facilities.

In a statement about that last matter, Woodward said, “This dangerous legislation is retaliatory and continues a consistent attack on the independent authority of the Office of the Mayor.”

Brian Coddington, Woodward’s chief spokesman, said the city attorney proposal is another part of that attack. Coddington said the charter envisions a council that sets policy and a mayor that runs operations, and the council has repeatedly stepped into the mayor’s lane.

He noted the current system calls for the city attorney to represent both the council and mayor, and said the city attorney’s office has assigned an attorney specifically to the council. Furthermore, he’s concerned that if the change passes, it allows both the mayor and council to contract with their own attorneys in special instances – raising the chance that there could be a divisive matter with three conflicting legal opinions.

As for the relationship between the council and mayor, he acknowledged that there could be improvements in communications but resisted the idea that the fault lay only on one side. He also said it’s not accurate to say there aren’t ongoing, productive communications between the two branches of government at City Hall.

“There is definitely room for improvement on both sides,” he said, adding that “The lines of communication are still open and still happening.”

To my view, divisions among council members and the mayor make the idea of a truly independent city attorney more attractive because that attorney is meant to advise and represent the mayor and the council – as well as all the agencies of the city. In a time of political conflict, the current incentives for a city attorney to see themselves as essentially on the mayor’s side are strong.

That is not to cast aspersions on anyone who is, or has been, in the role. This change would not affect the current interim city attorney, Lynden Smithson, who is temporarily replacing the retired Mike Ormsby.

Currently, the mayor nominates and the City Council approves the city attorney, but the attorney serves at the pleasure of the mayor as a member of the cabinet. Though the city attorney is meant to serve as legal adviser to both the mayor and council, in practical terms – the resolution says – the office is not independent. The influence of the person who can fire you is always greater than another’s influence, in essence.

The proposal would give the council authority to approve not only the hiring, but the firing, of any city attorney. The council would nominate appointees to the position, upon the mayor’s agreement; if the mayor vetoed the appointment, the council could not override it, to ensure that the position has the support of both branches.

The amendment also says the city attorney cannot start or settle litigation without council and mayoral approval. It also gives the mayor the authority to hire her own attorney without council approval for special matters, and vice versa.

And it sets a seven-year term for the job.

“It gives, essentially, the city attorney protection for seven years that they can’t be fired for giving the council or mayor advice they don’t like,” Beggs said.