CityWatch, July 29, 2011
Vol 9 Issue 60
RETHINKING LA - The recent debate over the City Council’s legal representation and the City Attorney’s obligations under the City Charter have dramatized the shortcomings of the current conflicted system.
Some members of the City Council would like a City Attorney that is loyal to their needs and their desires, not an objective legal presence with the potential to thwart their machinations. Their position is supported by Sec. 271 of the City Charter which directs the City Attorney to “represent the City in all legal proceedings against the City” and to serve as “the legal advisor to the City, and to all City boards, departments, officers and entities.”
Some members of the public have argued that the City Attorney serves the people of Los Angeles by enforcing the law, not protecting those who violate the law. Their position is supported by Sec. 271 of the City Charter which says 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.”
This City Charter mandate to both defend and to prosecute would not be a problem if the law was never broken and if the need to negotiate legal actions never came up but not a day goes by that the City Attorney isn’t required to straddle both sides of the legal fence.
During the City’s recent budget drama, Chief Deputy City Attorney William Carter made much of this dichotomy of loyalties when he pointed out that the City Attorney’s office defended the City’s right to impose furloughs on City staff even as the union representing LA’s Deputy City Attorneys condemned the furloughs.
Further clouding the debate is the position of Barry Sanders, Recreation & Parks Commission President and retired partner from the Latham & Watkins law firm, who defended his “Government Speech” park advertising scheme with a third interpretation of the City Attorney’s responsibilities. Sanders took the City Attorney to task for raising issues of legality, claiming that the City Attorney’s responsibility is to support Commission actions by working to remove legal obstacles, not enforce them.
Sanders singlehandedly made the case for the creation of a City Prosecutor for the City of LA.
Those involved in neighborhood councils have learned the hard way that the City Attorney has a client, it's the City of Los Angeles. NC Boardmembers can call the CA's office for advice but they won’t get support if their complaint is with the City of Los Angeles, that's when the public finds itself without representation.
The City Attorney owes fiduciary duties to the City's employees and its elected officials and that prohibits the City Attorney from taking any action against the interests of those people. The City Attorney may not even conduct an investigation that might reveal bad behavior by one of his clients, and if he does get such information during an investigation, he must hold it confidential.
Municipal authorities typically address this situation by having two separate offices. The County of Los Angeles has the District Attorney who owes no duty to the County Board of Supervisors while the County Counsel serves the Board and the Supervisors themselves.
In similar fashion, the City of Los Angeles needs two separate offices, one for the City Attorney and one for the City Prosecutor. The City Prosecutor would prosecute all the crimes which the City Attorney now prosecutes plus its jurisdiction would be expanded to cover felonies and grand jury investigations within City Hall.
The City Charter would need to clarify jurisdiction of the City Prosecutor and provide for felony investigations that involve the City of Los Angeles. Cities, counties, states and the feds can have concurrent jurisdiction, thus allowing the City Prosecutor to investigate and/or prosecute cases which involve or may involve the City, a City agency, or a City official. This must take place without divesting felony jurisdiction from the District Attorney or the State Attorney General.
As the people of LA continue the fight to establish a Ratepayers Advocate (RPA) and an Office of Public Accountability (OPA), it is important to remember that oversight and accountability means little, if anything at all, without enforcement authority and a mandate for prosecution.
Grassroots advocates have fought hard to bring the issues of open and transparent governance into the marketplace of ideas. Progress has been made but the impending success will be hollow if we do not continue the journey.
If the residents of LA are to move forward from awareness and into the arena of performance and accountability, it is essential that they are supported by a City Prosecutor that has the budget, the professional expertise, the legal clout and the mandate to do a meaningful job of representing the people.
(Stephen Box is a grassroots advocate and writes for CityWatch. He can be reached at: Stephen@thirdeyecreative.net.)