Monthly Archives: July 2011

Ralph Cooke: Oakland City Attorney should remain an elected position

“The City Attorney is to be elected by the people. This is a guarantee that the legal head of government will be able to fearlessly protect interests of all San Diego and not merely be an attorney appointed to carry out wishes of council or mayor.”

-  Excerpt from a 1931 election brochure, which asked voters to change the San Diego City Charter and elect an independent City Attorney.

On July 19th, Council Members Nadel and Kernighan plan to submit for Council approval, a resolution to present to the voters, a charter amendment entitled, “Returning the Elected City Attorney Position to an Appointed Position.” They acknowledge that the City Attorney serves as legal counsel to the City Council, the Mayor and each department of the City of Oakland (City). They cite that a City Attorney who gains the position through election by the public is subject to all political pressures experienced by any other politician. In addition, in the measure to be submitted to the public, they further cite as reasons for this change the following (PDF): the uniqueness of an elected City Attorney in California (2.5% elected) and the city attorney chooses his or her own boundaries ranging from legal to policy to politics.

For the reasons enumerated below, I respectfully ask that the residents of Oakland reject this blatant attempt to usurp power from other departments and people and eliminate this integral check and balance on the power of our elected officials.

Legal Counsel to City Council, Mayor and Each Department of the City

A City Attorney appointed by City Council and the Mayor cannot effectively serve each department of the City. When the City Council and Mayor appoint the City Attorney, the City Attorney works for and serves at the pleasure of the City Council and the Mayor. Thus, appointing a City Attorney does not eliminate the political pressures that our Council Members worry about with an elected City Attorney. If anything, these pressures are more pronounced and exacerbated when the Council and Mayor appoint a City Attorney, who serves at their will.

The City Attorney must feel free to offer independent advice, free of the pressure exerted by the City Council and Mayor, to the department heads he or she represents. When City Council and the Mayor have the ability to hire and fire the City Attorney, will the City Attorney provide counsel that is best for the department and the City or will it represent the interest of City Council and the Mayor, even if the position has no legal merit? An appointed City Attorney is subject to the political pressures of the individuals who appoint him. When the City Attorney is appointed there is a conflict of interest and invites the potential for abuse and retribution from the Council and Mayor.

The following is part of the discourse that occurred in the early 20th century when the City of San Diego debated these same issues.

“Ray Mathewson, the San Diego labor union representative on the Freeholder Board, described the role of the independent city attorney in a proposal he submitted to the Freeholder Board in which he recommended a “Strong Mayor –Council” form of government:

The duty of the city attorney is to give legal advice to every department and official of the city government on municipal matters. He also must act as the representative of the various departments before the courts. He should occupy an independent position so that his opinions would not be influenced by any appointive power. For this reason, he should be elected by the people. If elected, the city attorney is in a position of complete independance (sic) and may exercise such check upon the actions of the legislative and executive branches of the local government as the law and his conscience dictate.”

Only 2.5% of California cities elect their City Attorney

This is true but misleading. Five of the ten largest cities in California, including Oakland, elect their City Attorney. These five cities represent over 18% of California residents. In total, elected City Attorneys represent over 20% of California residents. To understand what can go wrong when the City Council and Mayor appoint the City Attorney, one need not look any further than the City of Bell. As the former administrator and other officials paid themselves high salaries, former City Attorney Edward Lee did little to restrain allegedly lawless behavior.  That 97.5% of the cities have an appointed City Attorney does not mean that it is a better structure.

Legal Advice versus Policy Making

According to the Ethical Principles for City Attorneys adopted by the League of California Cities, “The city attorney should be willing to give unpopular legal advice that meets the law’s purpose and intent even when the advice is not sought but the legal problem is evident to the attorney.

An elected City Attorney is the people’s last check to ensure that our elected executive and legislative branches do not embark on an action that is either legally incorrect or ill-advised. This will not happen when the City Attorney serves at the will of City Council and the Mayor. When the City Attorney is appointed, the electorate does not know if it is the best legal advice or the advice that will ensure that the appointed individual is retained by City Council and the Mayor. The public trust is critical to a functioning and thriving democracy; this trust is eroded when City Council and the mayor seek to wrest the power from the people.

Conclusion

The proposed ballot measure seeking a return to an appointed City Attorney is designed for one purpose and one purpose only — to wrest power from the people and consolidate power in the hands of the few. We deserve a City government that works for all residents of Oakland. We do not have this when City Council and the mayor collude to appoint a City Attorney who primarily serves their needs.  I urge you to contact your council member to voice your displeasure with this ballot measure and join me at the July 19 city council meeting to speak against the proposed ballot measure to return to an appointed City Attorney.

This guest post was written by Ralph Cooke, an Oakland resident and advocate for transparent government.