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.

77 thoughts on “Ralph Cooke: Oakland City Attorney should remain an elected position

  1. Naomi Schiff

    In practice, though, the elected city attorney hasn’t always been very responsive to citizens, but still seemed to represent entrenched interests. It makes another locus of empire-building in some ways.

  2. ralph

    Naomi, the Ethical Principles are very clear: The city attorney should discharge his or her duties in a manner that consistently places the city’s interests above self-advancement or enrichment.

    When the City Attorney is elected, the people have recourse. However, when the City Attorney serves at the pleasure of the Council and Mayor, the people have no direct recourse.

  3. ralph

    Naomi, also keep in mind that the City Attorney respresents the city’s interest, not individuals. Insomuch that the City Attorney has offered legal advice that is contrary to ill-advised wishes of Council and Mayor, then the City Attorney is representing the city effectively.

  4. Naomi Schiff

    My experience of requesting procedural clarity and information or navigational assistance from the city atty’s office has been quite depressing. They very often punt, saying they don’t represent citizens, they represent “the City” whatever that means.

    Among other things, city attorney’s office with assistance of city clerk’s office caused an unnecessary and huge flap over Oak to Ninth by making petition-for-referendum requirements unclear. After the subsequent lawsuit was abandoned (the city teamed up with a pricey anti-petition consulting law firm and a large developer’s legal team) the agreement was that the city attorney would post clear instructions on how legally to petition for a referendum. It never happened. To this day, you will not find info on how to do petition for referendum in Oakland, should you wish to overturn a council action. Yet many other cities post clear requirements. (http://www.sandiego.gov/city-clerk/elections/process/referendum.shtml)

    It was pretty clear whose side the city attorney was on, and it was not that of the 20,000 petition signers. He was defending “the city” then, but how you define that is not always what you would expect.

    Remember that we’d not had an elected city attorney until Meas. X was passed. So our experience is limited, and to a large extent the definition of what an elected atty sees as the city’s interest is the product of one person’s ideas, those of John Russo. He is a smart guy, but I question whether we citizens get full value out of the city atty’s office at present.

  5. Ravi

    “My experience of requesting procedural clarity and information or navigational assistance from the city atty’s office has been quite depressing. They very often punt, saying they don’t represent citizens, they represent “the City” whatever that means.”

    This might be true of any City Attorney in Oakland, whether elected or appointed. Different City Attorneys may have very differing ideas on what is best for the city as a whole, vs what some individual citizen or citizen group may want.

    The argument of the original post is unchallenged and I think essential: in the context of the current corrupt and incompetent government in Oakland, for which change is so badly needed, the City Attorney needs to be as independent as possible.

  6. Ralph

    Naomi, the City Attorney can not and should not represents the residents on a petition matter. The City is defined by the laws and policy enacted by the residents. In addition, the City Attorney must also advise Council and the Mayor when they consider taking actions that are contrary to state and federal law. In this respect, the City Attorney is protecting the interest of the City from future litigation.

  7. Max Allstadt

    This is a council power grab, plain and simple.

    John Russo butted heads with the council in ways that they found offputting, but that should not be a reason to change our entire framework of government.

    There is also a long list of examples where councilmembers pursued legally questionable courses of action and the City Attorney intervened, and where the public clearly approved of that intervention.

  8. livegreen

    Naomi, Oak 2 Ninth rested not only in the City Attorney’s offices, but also those of our elected leaders. Who approved the development? Once approved, would there have been a difference if the City Attorney were appointed or elected?

    And would those against the development have received a clearer/different answer if the City Attorney defending the City were appointed?

    My guess is there wouldn’t have been a difference, since either way the City Attorney would be defending the City’s decisions.

  9. BarryK

    Naomi: “My experience of requesting procedural clarity and information or navigational assistance from the city atty’s office has been quite depressing. They very often punt, saying they don’t represent citizens, they represent “the City” whatever that means.”

    Was that before or after Jean Quan and her long-time ally and unofficial legal adviser and pro-gang and criminal defender, Dan Siegel, took control of legal matters involving the Office of the Mayor and breaking the City Charter?

    Anyone seen that mystery poll (or results) for Quan’s $80 pro-parcel tax? Has the East Bay News Group moved forward suing Quan and Siegel yet?

  10. Naomi Schiff

    BarryK, that was during the Jerry Brown years. The city attorney should always be willing to clarify and facilitate standard procedures and processes for official actions related to city actions. We all have the right, for just one example, to circulate a petition of referendum. It is state law. The city of Oakland has found it impossible to set a clear framework for how this is done. People posting here might well want to avail themselves of it sometime when the city council does something with which you strongly disagree. Similarly, some of the transparency and procedural clarity that people on this blog have advocated for could be helped if we had a city attorney who was minding that part of his or her duties. I’m not sure these things are necessarily worse with an appointed attorney, and you might be correct that it would not be better. I was simply commenting that the elected city attorney also has its problems, such as the creation of another, equally fallible political fiefdom and locus of power, and may or may not serve the public well.

    (and Barry, I object to your characterizing Mr. Siegel as “pro-gang.” Defense lawyers defend defendants.)

  11. ralph

    Naomi, with respect to the referendum process, your issue is with the City Clerk and not the City Attorney.

    The problem is with the chain of command. If you want an open and easy to understand process with respect to referendums you need to press your claim with the office that has supervisory control over this position. It is not the City Attorney.

    I don’t disagree that the process should be open, but if one wants to change the process then one needs to go to the individuals who can do something about it.

  12. Justin Horner

    Obviously, all we really have to go on with this whole elected City Attorney business is John Russo. While I worked for more than a little time for Jane Brunner, and Jane and John didnt always get along, I personally have had no problem with Russo or his office. I liked a lot of what he did, including the Neighborhood Law Corps. I also supported him on the gang injunctions, which is an example of something he really couldnt have done with the current Council if he were appointed by them.

    Nevertheless, I have to respectfully disagree with the author. An elected city attorney has not created a “people’s champion” who defends us all from the terror of the Council. At its most basic what it has done is created another politician. Whether you believe what Oakland needs is more politicians, and fewer professionals, may color your view on this.

    If election is the only way to insulate someone from the “corruption” of the city council and Mayor, the logic of this argument could extend to electing each and every department head or city staffer. In fact, the only real check on a City Attorney’s legal advice and job performance is their conscience; winning a citywide election, or the 5 votes on the Council, isnt going to make much of a difference if you’re immoral. Running for office doesn’t make anyone a saint or less tainted than an appointed official. If that were true, we all wouldn’t be complaining about the Council so much, would we?

    And, remember, they say the whole elected city attorney concept was drawn out on the proverbial napkin by Jerry when he wanted John’s support for something. So much for purity.

    At the end of the day, the City Attorney is the attorney for the corporation of the City of Oakland. Why election makes someone a good muni law attorney or a good manager (the City’s the biggest law firm in town, I think) needs to be explained to me. I wouldn’t want to elect the City Administrator; you want someone with professional administrative experience, not a politician. The same’s true, in my opinion, of the city attorney.

    The question I have is how this is supposed to work in a Strong Mayor form of government. The Council and the Mayor used to hire the City Manager and City Attorney jointly, but now the Mayor basically does it. I couldn’t see the Council letting the Mayor get this one, too.

  13. livegreen

    We have a Strong Mayor form of govt in name only. New York has a Strong Mayor, who runs the govt. What we have could be called a “Strong Weak Mayor” (or the converse).

    But I digress. Justin, you seem to be making an argument against electing not just the City Attorney, but also the City Council…

  14. Naomi Schiff

    Good points, Justin. Our strong mayor measure was a mess as originally written, and its revision didn’t resolve all the problems with it. My question has always been why we’d want a strong mayor. Doesn’t seem to have worked better than the previous method, though perhaps not markedly worse.

  15. Ravi

    I don’t think Oakland’s governance problems have nearly as much to do with the details of its form as with the (lack of) quality in the people in elected office and the destructive political culture which they nurture.

  16. len raphael

    Would you favor changing to an appointed State Attorney General for the same reasons? Suppose if it’s good enough for the Federal Government why should it be good for state and local government?

    That was pretty scary how our Mayor and City Council were hell bent on industrial dope growing despite warnings from Obamba’s people. Elected office independence fortified Russo’s integrity.

    But yes, ultimately we’re depending on the integrity of the person serving.

    I don’t see how making it appointed is going to assure us of getting someone who is both a sharp attorney and a good administrator.

    One doesn’t usually find those skills in the same attorney regardless of how you pick ‘em.

    Watching our city council and mayors blunder thru the past decade makes me want to replace them with a competent strong city manager. But we’re too big a city for taking that easy path. Considering how the city’s employees have become more powerful than the residents, professionalizing elected positions isn’t the solution here.

    For me, it comes down to I like keeping it elected because it gives the voters an extra shot to “throw a bum out” .

    I would like to see a separate threat on proposing a charter amendment that would create a truly strong mayor.

    Ninth to wasn’t Russo’s finest moment supporting democracy, though it was a competent piece of legal work.

    Regardless of where one stood on that project, my understanding from non partisans of that project is that Naomi is correct about the City’s attorney office promise to issue clear guidelines on referendums.

    Without those guidelines, the legal costs for any referendum are prohibitive.

    Considering how this city council and mayor is showing no signs of coming to grasp with the depth and breadth of our fiscal and public safety problems, even supporters of Oak to 9th might have need of a referendum guidelines sooner than later. But referendums and charter amendments need a separate thread.

    Separately,

  17. Naomi Schiff

    Right, Len. Form of our city government has been under discussion at least since Elihu Harris was mayor. Before that, the controversy was about district elections.

  18. Aaron Priven

    My view is that there are so many elected officials that the ordinary citizen can’t keep track of them all. Ask the average citizen of Oakland how good a job the City Attorney is doing, and what kind of answer will you get?

    (And yes, I think all state constitutional offices except governor and secretary of state should be appointments)

  19. Max Allstadt

    Right now the Council is too powerful. They’ve been too powerful for a long time.

    They have no Term Limits.

    They’re allowed to get paid to do outside work, despite the fact that it distracts them and creates potential conflicts of interest.

    Their incumbency advantage is so strong that nobody has unseated an incumbent council member in well over a decade.

    Making the City Attorney appointed by the council would give them even more power. They have not done well with what they’ve got. Sorry, I say no way.

    The City Attorney and Auditor positions should be clarified and strengthened in the Charter. They should have a set percentage of the general fund. That’s how SF handles it, and they seem to be significantly less messed up than Oakland.

    We should also change the way we hire City Administrators. Mayor Quan, to her credit, has hired two professional City Administrators in a row. Mayor Dellums hired a loyalist with no municipal government experience. Mayor Brown bumped out a professional and left us with a corrupt slug who he had picked because she would be a rubber stamp.

    The right way to do it is the way SF does it: Their chief administrator is hired for a 10 year term, confirmed by the Mayor and 2/3rds of the supes, and can only be terminated by the same massive majority. That de-politicizes the office. We’ve been lucky that Mayor Quan has chosen real professionals in the field, but we need to set up the system to make it work reliably in the future.

  20. Ravi

    AP: One of the social costs of democracy is an informed electorate. People can choose not to be informed. And, sadly, perhaps most people so choose. So we get the government we deserve by default: in Oakland, in the state, nationally. Of course where the media fail to inform adequately we also suffer.

    On the other hand, your suggestion that we vote only for only one or two state offices takes us farther from democracy. Why not have just one choice for a state ruler? Whom we might call not the governor but the fuhrer. Going down this road certainly is more convenient. More time for watching TV and drinking beer; less time having to read and think.

  21. livegreen

    I would again like to point out that the referendum issues about Oak-to-9th was not just Russo’s. It was also the City Councils. If they hide behind Russo, they’re doing just that.

    Since the City approved Oak to 9th nothing would have changed with an appointed City Attorney. This is at least a tangental issue to the discussion here, and at most totally unrelated.

  22. Naomi Schiff

    While I wasn’t wholly satisfied with the outcome, it was extremely interesting to serve on the Measure X revision committee, and I learned a lot. Government structure is always a compromise and it is tempting to tinker with it, a characteristic of our nation that I find admirable. I loved listening to the discussions between informed people, which in that case included Henry Gardner, Helen Hutchison, Richard Winnie, Ben Fay, Zach Wasserman, and other veterans of city hall function and dysfunction. John Russo came and lectured to us too. It might be worthwhile to have some study sessions or convocations using League of Women Voters as a vehicle. While various thoughtful opinions are in evidence in this blog, it does require fairly serious study of municipal governance to make good comprehensive suggestions that work, and to consider the longer term ramifications of changing structure. We really struggled on that committee to separate the structural questions from the personalities and styles of the occupants of the offices–Brown and Russo et al. I’m glad to say that some of the Meas X revisions were successful. It was a pretty messy piece of legislation as originally constructed, and has left us with structural awkwardness in several areas.

  23. Naomi Schiff

    Livegreen, I was pointing out that Mr. Russo did not acquit himself too well in clarifying city rules and procedures, and helped create a very unpleasant situation. Surely the city attorney should be helpful in that regard, not taking sides, but in making sure that the state and local requirements are clear to everyone. It has been a little mysterious to me, too, that he decided not to show up to advise city council at their meetings, these last many years, but to delegate all of it to Ms. Parker. In the past, the (appointed) city attorney was present at most council meetings, as far back as I can remember. Helped connect the government’s departments, I would say, instead of balkanizing them.

  24. Ravi

    It is a good observation to point out that Oakland’s various departments are balkanized. On the other hand, I wouldn’t throw the blame for that at Russo. Just look at how balkanized or factionized the Council is so much of the time. I think that Oakland’s elected officials generally are poor leaders, poorly-experienced in management and rather immature–that is, narcissistic. They have a great deal of trouble seeing the whole picture, planning ahead and sticking to a topic. Like a typical adolescent. That’s a good environment for promoting balkanized governance.

  25. Max Allstadt

    Naomi,

    Russo avoided personal appearances at Council meetings specifically to de-politicize the City Attorney’s role as parliamentarian. He did it because he was the first Elected City Attorney in Oakland, and having no predecessor to refer to for precedent, he chose to operate the way they do in SF: parliamentarian duties are carried out by a deputy.

    And it worked. Barbara Parker and Mark Morodomi have operated apolitically as parliamentarians. Russo himself, had he been in that chair, even if he had operated apolitically, would have been accused of being political.

    The REALLY interesting part about that talking point:

    I never heard any Councilmember or Mayor object to the fact that Russo sent deputies to meetings until this year. He’d been following the policy for 11 years before all these objections came up.

    What really happened? The council LIKES having a deputy as parliamentarian. The only reason this talking point ever came into existence is because Councilmembers were pursuing a reckless cannabis cultivation ordinance, Russo rightly made a stink about it, and the Council needed some counterattack talking points.

  26. Naomi Schiff

    We must think beyond any particular occupant of the office. We need to think structurally, and plan for sound governance whether individuals elected or appointed are competent or less so. (It’s not that the question of city attorney showing up at council only came about due to the cannabis thing. Quite a few people had remarked upon it for years.) Structural change should be big picture, not personality politics. I get that you admire Mr. Russo; in some respects I do too, but that is irrelevant to these questions of structure.

  27. Ravi

    “We must think beyond any particular occupant of the office. We need to think structurally, and plan for sound governance whether individuals elected or appointed are competent or less so.”

    This is well along the road to a very bad idea. There is no way to design a government structure which will succeed independent of the character of those holding office. All of history shows that governments are made of men much more than of laws and other rules which always can be ignored or countered in many ways. If you are a progressive, tell me just how well the U.S. Supreme Court plays by the rules. Remember how Bush II first got elected?

  28. annoyed

    The council has power because the voters gave it to them. Council knows there are no repercussions for anything they do because you will reelect them no matter what they do. As for term limits, we already have them. It’s called voting the incumbent out of office. We don’t do that anymore in Oakland.

    As for an elected City Atty, there would be no gang injunctions if Russo had been appointed. On the other hand, if Jane Williams had won instead of Russo, there would have been no gang injunctions either. You pays your money and you takes your chances, as an old law prof used to say. Without a wholesale change in council and changes in city policies, it almost doesn’t matter whether this position is elected or not. The Mayor and Council managed to run Russo out of town. You have the government in this town that you deserve.

    In a sick kind of way, I almost hope the federal government brings Oakland to its collective knees over “medical” marijuana. If nothing else to see if this town really is composed of nothing more than a bunch of narcissistic, apathetic pot heads or if there is actually something that could get voters’ backs up enough to kick these elected clowns to the curb.

  29. Tab

    @Max: her no-nonsense approach notwithstanding, I’ve always thought of Barbara as a Parliamentarian Funkadelic.

  30. Ravi

    “Well, Ravi, then why change anything structurally, ever?”

    Democracy is a process among involved people. Structural change in government is a part of the democratic process, but it’s far from the whole of it.

  31. Ravi

    “And: annoyed, you certainly live up to your moniker!”

    Annoyed, after your last post, I think you should change your moniker to “Right-on.”

  32. Max Allstadt

    Naomi,

    1. I never heard that criticism once before the relationship between the City Attorney and the council went sour. The council had 11 years to demand that he attend. They didn’t do that.

    2. You don’t get to say this should be about the structure rather the occupant of the office if your own previous comment was about the occupant.

  33. Aaron Priven

    Len — yes, Secretary of State, because i think the elections officers need to be independent of the other elected officials. (Ideally I would change the name to a more accurate description, and make the incumbent or anybody who works for the office ineligible for re-election, or election to anything else, while in office.)

    Ravi — I believe people have a responsibility to know about their government, but at the same time paying attention to every elected official is practically a full-time job, and that’s not realistic. Quick, who is your BART board member? Your East Bay MUD member? Your East Bay Regional Park District representative? Your Peralta Community College District representative? In practice almost nobody knows these things, and so people end up voting based on their own ignorance.

    This is a very long document:
    http://www.lwvoakland.org/Who_Represents_Oakland.html
    (Even that’s not complete.)

    I believe that government has no justification without popular sovereignty. But at the same time, more democracy is not always better. People have a limited capacity for doing anything, and if we want people to have the reality of democracy and not just the name, the task of governmental oversight by the average citizen needs to be *practicable* and not just *possible*.

  34. Ravi

    Priven–Different people will have very different capacities, and how you lay out the possible vs the practicable seems quite absurd. Perhaps you are simply ignorant of the way involved citizens get involved.

    For example if I have a problem with EBMUD or BART I can look up the appropriate contact person very quickly on the internet. Further, I am indeed interested in water quality, watershed management and related issues as well as public transport and city planning. So I am a member of several nonprofit organizations which deal with these issues with both agencies. These organizations stay on top of things and keep me informed. They put together campaigns to improve management and to deal with all sorts of specific problems and I can always learn more about these agencies’ activities through the nonprofits.

    Government in the City of Oakland is another matter. It’s not just about the quality of the water and transportation planning, it’s about whether you and your family are safe on the streets, whether there are jobs for all the parolees coming back home to Oakland, about whether your taxes are being spent efficiently and so on. One might expect that someone who cares at all would know their City Councilmember’s name. And, of course, if you care about the quality of life in Oakland, there are many organizations with specific areas of interest that you can join forces with.

  35. CitizenX

    Thanks, Justin. Saved me a lot of typing.

    The argument that an elected City Attorney (or Auditor, for that matter) is the only way to save us from our elected officials is obviously flawed.

  36. Pat Kernighan

    I am writing to explain why I believe it would be better for Oakland to have an appointed City Attorney, and thus am co-sponsoring a ballot measure that would change the City Charter to do so.

    The fundamental point is that the City Attorney’s job is to be an attorney for the municipal corporation of the City–not to be an independent “watch dog” over the City Council. The watch dog function is the role of the elected City Auditor, who I agree must be completely independent of the City Council.

    The City Attorney’s job, on the other hand, is to be the attorney for the City Council and Mayor, who are elected to be the board of the City. The obligations of the City Attorney to his or her clients is the same as in any other attorney/client relationship and governed by the same Rules of Professional Conduct. An attorney is never “independent” of his clients. Rather, an attorney has a fiduciary responsibility to serve his clients.

    The City Council should be able to select its attorney based on who has the best professional qualifications, just as any business would select its attorney.

    My concern is that when an attorney needs to run for election in order to get the job, the attorney is now a politician and must look out for his or her own political future in addition to looking out for the best interests of the his client, the City. This creates a potential conflict of interest When the client (City) needs to take an unpopular position, does this attorney resist because it might adversely affect his/her political career? Hopefully not, but the pressure of dual loyalties are definitely present. This potential conflict of interest can also undermine the relationship of trust that is essential between the client and attorney because the client is not sure if the attorney’s advice is colored by his or her own political self interest.

    As a City Councilmember, I take my duty to the people of Oakland very seriously. In order to do my job well, I and the other Councilmembers need to have a professional attorney of the highest qualifications advising us. I don’t want to get legal advice from a politician. I want legal advice from an unbiased professional attorney.

    The citizens may or may not elect a City Attorney who is a competent professional. The City was lucky that John Russo was both a talented lawyer and manager and a capable politician. There are few people who are all of these. With an election, the outcome is very unpredictable.

    What if the person elected is not doing a good job? It takes a very long time to so a recall election. I remember the very unfortunate situation a few years ago with the previous elected City Auditor. He began to exhibit erratic and inappropriate behavior and most of his employees filed complaints and/or left the office. The City was left without a functioning City Auditor’s office for almost two years because only the voters could replace the City Auditor. While the City can survive a year or two without a City Auditor, the City cannot function even a month without a City Attorney, as the Attorney is integral to practically every action of the City. If the need arises, the City Council needs to be able to replace an attorney that is not doing the job properly.

    For these reasons, I strongly believe that the citizens of Oakland would be best served by a City attorney who does not have to run for office, but rather is selected on the basis of professional legal qualifications by a majority vote of the City Council.

  37. Max Allstadt

    @CitizenX

    That’s a strawman, and a lazy one at that.

    The argument is that maintaining a City Attorney that answers to the people, not the council, is a good way to keep the council from forcing the City Attorney to go along with their agenda when it’s illegal or unethical.

    Again:

    Ranked Choice Voting – Perata tried to shoot it down by using allied councilmembers as proxies. The elected city attorney independently released a strongly worded opinion supporting RCV.

    Pot Farms: Because an elected city attorney has a constituency and the power and clout that goes along with that, it is far more feasible for an elected city attorney to oppose the council when it tries to do something stupid, like taunt the federal government and risk arrest by granting licenses to grow acres and acres of weed.

    Also, a city attorney who’s beholden to the council could face obstruction from the council if there was a well connected person that deserved to be sued by the city. With this council, in this city, in this political climate, I think that’s the best and strongest argument we have.

  38. charlie s

    This is not an easy call. My own concern is that an elected city attorney would create a separate power base that could usurp the mayor’s ability to set policy. In a recent editorial, the Washington Post asks, for example, “What happens if the mayor wants to make a priority of improving the city’s housing stock, but the attorney general doesn’t follow up by vigorously prosecuting slumlords?” We’ve seen that when the two are at cross purposes, the result is that Mayor Quan turns to her own legal team, at a big cost to the taxpayers. No one disputes the argument that the city attorney must remain free of undue political interference, but there are ways — I think — to strengthen the office without infringing on the mayor’s prerogatives.

  39. ralph

    Charlie,
    The Code of Ethics holds that the City Attorney should not be building a palace. The City Attorney should also give advice consistent with the law. The City Attorney must also do this when the advice is unpopular but is supported by the law. See Max’s comments regarding the Pot Farm.

    What the City Attorney should not do is participate in policy making efforts.

    The National Civic League Model City Charter indicates that an appointed City Attorney is not the preferred model.

  40. ralph

    Charlie,
    Neither an elected nor appointed is an position to ignore legally defensible action. An elected City Attorney is less inhibited when the action that either the Mayor or Council wants to pursue is not supported by the law, constituent, or legislative intent. Because an appointed City Attorney relies on the Mayor and Council for his income, he has incentive to make arguments that are not supported and are ill-advised.

    For creative justifications, I direct you to NikNak.

  41. len raphael

    Pat’s makes some good points. But they made me think that maybe the best choice would be to make the position a civil service one.

    A Barbara Parker kinda career city attorney, subject to removal by the Civil Service Board (is there such a thing here?

    (Ralph, a link to the National Civic League Model City) Charter

    -len raphael, temescal

  42. Naomi Schiff

    I think Pat is right. Having yet another locus of political power has been confusing and expensive, and it has been very hard to tell exactly whom the attorney is representing.

  43. Ravi

    I have to disagree with Kernighan on the benefit to the city of an appointed city attorney.

    She says “I strongly believe that the citizens of Oakland would be best served by a City attorney who is selected on the basis of professional legal qualifications by a majority vote of the City Council.”

    It is precisely the lack of competence of the City Council in making so very many decisions and Councilmembers’ inclination to further their own political well-being that leads me to think that the people cannot help but be better at choosing a competent City Attorney than the Council.

    Kernighan’s contempt for the savvy of the public is matched by the public’s dismay at her and her colleagues’ continued failure as policy makers.

    That’s one reason why Oakland never moves forward. Only the public can break the Council’s and Mayor’s deathgrip on Oakland.

  44. len raphael

    Naomi. the only confusing parts were caused by Russo’ sticking to his positions on legal decisions

    Unlike Pat, I wouldn’t count on the professional ethics of a future city attorney to resign if their employer the Mayor or the CC tells them to take a high risk, high exposure position. Its hard to get a law job that pays 230k/k and you don’t have to work 7 day 10 hour work days.

    As for depending on a City Auditor to act as a check on the Council and Mayor, show me the money.

    Even if an auditor were so inclined and had the staff to investigate, the auditor has no power to investigate whether the CC or the mayor has put the city at risk for lawsuits, fines, penalties, unless such actions come within fairly narrow scope of the auditor’s office.

    What really rubs me the wrong way is that the Council is so eager to put this on the ballot, and not put any of several measures needed to address the structurally calamitous fiscal situation. eg. alllowing outsourcing of all non security services to any private or public vendor who meets standards in open bidding.

    gee thanks to the CC for abdicating their responsibilty to give voters a choice to abolish binding arbitration for cop and fire negotiations. I don’t see why a CC member would be concerned about a future City Attorney avoiding a decision unpopular to the voters when CC members seem to be more concerned with being popular with city employees.

    -len raphael

  45. Naomi Schiff

    No, the confusing parts (and I refer now to earlier episodes, not just the Quan mayoralty) were when atty’s office was busy building its own empire and locus of power, rather than sticking to its chief responsibility, that of advising the council, defending the city, and ensuring that city actions were structured in a legal fashion.
    ” Provide legal services, advice and representation to elected officials, City Administration, boards, commissions or other agencies of the City.
    Draft ordinances, resolutions, contracts and other legal documents.
    Defend the City against claims and lawsuits.
    Initiate lawsuits on behalf of the City.”

  46. len raphael

    Naomi, I’m guilty of not paying much attention to City Hall untill about 4 years ago. So i’ll defer to you on the background.

    But not on the fallacy of depending on the ethics of attorneys or the wisdom of their clients.

    Naomi, doesn’t it bother you just a little that Pat considers it a conflict of interest for an elected City Attorney to get pulled by their desire to please the voters?

  47. ralph

    Naomi,
    Can you explain what you find difficult to understand about whom the City Attorney represents? The charter is very clear and you can read just about any other city charter and the answer is same. It is how you described.

    Regarding the size of the office. The office needs to be sufficient in size to serve the city’s realistic legal needs.

    This move by council essentially amounts to a form of charter permitted pension spiking. The argument will be that only someone versed in the municipal legal issues (a sitting attorney on council for example) will be qualified to serve. Basically, council will appoint one of their own to fill the seat maintaining a clubby and insular body. To obtain the votes necessary does this person start to vote in the best interest of their district or their self interest.

    ———–
    The auditor and attorney serve two different purposes. The auditor can advise council about financial and performance issue. The auditor is not a trained attorney and would not be in a position to inform the City Council that a position is ill-advised and has been rejected by the courts. A smart, effective and independent, free of appointive pressures, City Attorney can.

  48. CitizenX

    @Max, the idea that an altruistic white knight of a City Attorney will somehow slay the evil dragons known as City Council and the Mayor is laughable. The electorate needs to take some responsibility for the politicians they vote into office. It is that simple. What makes you think that a politician City Attorney will somehow be more likely to answer to the people than a politician Councilmember? You’re dreaming.

    The former elected City Attorney thumbed his nose at the Charter and, thereby, the citizens of Oakland by refusing to sit at the dais at Council meetings. THIS WAS NOT HIS DECISION TO MAKE, Max, whether you personally think it made sense or not. THE CHARTER REQUIRES THE CITY ATTORNEY TO SIT AT THE DAIS — period. The City Council is also culpable for allowing the City Attorney to ignore the Charter, but that, in no way, makes a wrong into a right.

  49. Max Allstadt

    Citizen X,

    It isn’t necessarily about one politician being more altruistic than another bunch of politicians.

    It’s about setting up a power structure where two different politicians have competing interests. They have different things to prove to the voters, but because they’re all accountable to the voters, they’re equally matched if they end up in conflict.

    As for your abuse of the capslock key, I never said it wasn’t against the charter. I just said that nobody seemed to care about for ten years, until they suddenly needed something to use as a political attack.

    I would be rather stunned, incidentally, if the voters vote to take away their own vote, particularly in this case, where the Council hasn’t proposed an alternative that is anything other than a power grab.

    A sane compromise, to professionalize the office and keep the council and the mayor from pressuring the City Attorney from doing stupid things: make it a 10 year contract, make the appointment need ratification by the mayor and 2 thirds of the council. Make termination of the City Attorney require the same level of consensus. That would de-politicize the role, and make it very independent.

    But that’s not what the ballot measure does. The ballot measure gives the council too much power.

  50. CitizenX

    I think the best route for the City Attorney position is an appointed position with contractual protections — a healthy severence provision goes a long way towards ensuring the Atty can act with a degree of independence.

  51. Naomi Schiff

    Some of us really cared about the city atty’s absence from city council, and mentioned it repeatedly. When the city atty was appointed, if there were procedural or legal questions with something the city was doing, a citizen could ask the city atty about it and often even get an answer. The consistent response in recent times was that the city atty did not represent the citizens, and just go ask the city clerk (who rarely was the right person to ask). In a way the current structure was the result of a previous “power grab,” the JB era “strong mayor” measure, which was an awkwardly written and unworkable measure that needed revision shortly after its passage and brought us the ridiculous 8-member abstention-prone council. Elected city attorney only came in at the time of that whole change. Appointing an atty could be viewed as simply going back to a longstanding system, rather than a power grab. There certainly is a legitimate basis for discussing this office, how it should be selected, and exactly what its responsibilities should be. I am happy to see that we can skip a fulltime salary going to a city atty public relations person, which seemed to me an expensive and blatantly political idea. I also always wondered who paid for the widely mailed city atty holiday greeting cards. Was this a necessary part of the office, or a thinly disguised campaign outreach? Anyhow, I find myself really missing the late Richard Winnie, with whom I would have loved to discuss this issue.

  52. Ravi

    It isn’t unreasonable at all to have an appointed City Attorney with strong provisions for independence.

    But in the current situation, it’s clear that the Council has NOT been happy with the independence of the recent officerholder Russo. So this proposal is, at best, cynical and at worst, simply another instance of Council arrogance.

    With all of Oakland’s ongoing problems, all of which need a lot of careful policymaking attention, the Council remains committed to frittering around on the periphery of civic matters.

    Much citizen effort has gone into producing a Rainy Day Fund Charter revision, yet the Council is refusing to act upon it.

    Again, we can’t move forward as a city as long as our electeds fail to attend to what is most important and spend much time on the trivial.

  53. Frank Castro

    I revised Pat’s comment to exchange the terms “City Attorney” for “City Council member” and the term “City Council” for “citizens of Oakland”. Would Pat still agree with her analysis?

    “The fundamental point is that the City Council’s job is to be an advocate for the citizens of Oakland –not to be an independent “watch dog” over the citizens of Oakland. The watch dog function is the role of the elected City Auditor, who I agree must be completely independent of the City Council.

    The City Council’s job, on the other hand, is to be the advocate for citizens of Oakland. The obligations of the City Council to his or her clients (citizens of Oakland) is the same as in any other attorney/client relationship and governed by the same Rules of Professional Conduct. An attorney is never “independent” of his clients. Rather, an attorney has a fiduciary responsibility to serve his clients.

    The citizens of Oakland should be able to select its City Council members based on who has the best professional qualifications, just as any business would select its attorney.

    My concern is that when a City Council member needs to run for election in order to get the job, the City Council member is now a politician and must look out for his or her own political future in addition to looking out for the best interests of the his client, the citizens of Oakland. This creates a potential conflict of interest when the client (citizens of Oakland) need to take an unpopular position, does this City Council member resist because it might adversely affect his/her political career? Hopefully not, but the pressure of dual loyalties are definitely present. This potential conflict of interest can also undermine the relationship of trust that is essential between the City Council and the citizens of Oakland because the citizens of Oakland are not sure if the City Council member’s advice is colored by his or her own political self interest.

    We as citizens of Oakland, take our duty to the people of Oakland very seriously. In order to do our job well, the citizens of Oakland need to have a professional City Council of the highest qualifications advising us. We don’t want to get legal advice from a politician. we want legal advice from unbiased professionals.

    The citizens may or may not elect a City Council who are competent professionals.”

  54. len raphael

    Who was Richard Winnie?

    Curious was Oakland City Govt always this dysfunctional? For sure there was Mayor Carpentier giving away the entire waterfront right at the getgo, but weren’t there long stretches of a relatively decently function City punctuated by some bad periods?

  55. BarryK

    Kernighan’s post/reply received the following comments from a neighborhood listserv. I’m using “XX” as the person that replied to the Kernighan’s statements.

    **********

    PK: I am responding to your email in which you expressed your preference for an elected City Attorney. I am writing to explain why I believe it would be better for Oakland to have an appointed City Attorney, like Oakland did in the past, and like 95% of other California cities have.

    XX: Who cares what other cities do? They aren’t doing any better than Oakland so…unclear on why this matters! If these other cities have proven this way works better, then tell us how.

    PK: The fundamental point is that the City Attorney’s job is to be an attorney for the municipal corporation of the City–not to be an independent “watch dog” over the City Council. The watch dog function is the role of the elected City Auditor, who I agree must be completely independent of the City Council.

    XX:Unclear on your concept here Pat. Everyone knows that the City Attorney is not the ‘watch dog’ so your point is what??

    PK: The City Attorney’s job, on the other hand, is to be the attorney for the City Council and Mayor, who are elected to be the board of the City. The obligations of the City Attorney to his or her clients is the same as in any other attorney/client relationship and governed by the same Rules of Professional Conduct. An attorney is never “independent” of his clients. Rather, an attorney has a fiduciary responsibility to serve his clients.

    XX:I don’t see how our City Attorney is ‘independent’. Per their job description below, they “Provide legal services, advice and representation to elected officials, City Administration, boards, commissions or other agencies of the City.”

    PK: The City Council should be able to select its attorney based on who has the best professional qualifications, just as any business would select its attorney.

    XX:Pat, why should the City Council select? Oakland Citizens DO select our attorney based on professional qualifications by voting- what’s the difference? Do you believe the City Council is smarter or more qualified than your Oakland constituents??

    PK: My concern is that when an attorney needs to run for election in order to get the job, the attorney is now a politician and must look out for his or her own political future in addition to looking out for the best interests of the his client, the City. This creates a potential conflict of interest When the client (City) needs to take an unpopular position, does this attorney resist because it might adversely affect his/her political career? Hopefully not, but the pressure of dual loyalties are definitely present. This potential conflict of interest can also undermine the relationship of trust that is essential between the client and attorney because the client is not sure if the attorney’s advice is colored by his or her own political self interest.

    XX:You run for office too. Are you saying that you and your fellow council people don’t look out for your own political future when you vote on issues?? If the City Council has to take an unpopular position, do you resist because of YOUR political career?? Hopefully not, but YOU TOO have dual loyalties.

    PK: As a City Councilmember, I take my duty to the people of Oakland very seriously. In order to do my job well, I and the other Councilmembers need to have a professional attorney of the highest qualifications advising us. I don’t want to get legal advice from a politician. I want legal advice from an unbiased professional attorney.

    XX:Well, I could say the same thing!! I want the highest qualified people on city council too but guess what?!! YOU ARE POLITICIANS!! Can you honestly say EVERY decision you make is for the BEST interest of the city and NOT your re-election bid? Please.

    PK: The citizens may or may not elect a City Attorney who is a competent professional. The City was lucky that John Russo was both a talented lawyer and manager and a capable politician. There are few people who are all of these. With an election, the outcome is very unpredictable.

    XX::And you, the City Council will make a more educated choice for City Attorney why? Are you saying that we’re lucky these dumb Oakland citizens got lucky when they voted in John Russo?? Cmon!!!

    PK: What if the person elected is not doing a good job? It takes a very long time to so a recall election. I remember the very unfortunate situation a few years ago with the previous elected City Auditor. He began to exhibit erratic and inappropriate behavior and most of his employees filed complaints and/or left the office. The City was left without a functioning City Auditor’s office for almost two years because only the voters could replace the City Auditor. While the City can survive a year or two without a City Auditor, the City cannot function even a month without a City Attorney, as the Attorney is integral to practically every action of the City. If the need arises, the City Council needs to be able to replace an attorney that is not doing the job properly.

    XX:Interesting. What if the City Council person isn’t doing a good job? Geez! What if they exhibit erratic behavior?? We’d have to wait to replace you too. That’s politics. We could add a referendum that says that if the City Attorney who is voted in leaves Oakland, the runner up would be offered the position. If that didn’t work, have another election!

    PK: For these reasons, I strongly believe that the citizens of Oakland would be best served by a City attorney who does not have to run for office, but rather is selected on the basis of professional legal qualifications by a majority vote of the City Council.

    XX: Hmmm, maybe the City Attorney should appoint every City Councilperson so they don’t have to run for office. Why not? Aren’t attorney’s educated?!!

    Please leave the position of the City Attorney to the people. If we’re such idiots, how did YOU get elected?? Just wondering….. And don’t even get me started about Deanna J. Santana. Geez! Can I get 9.5 weeks of vacation and a quarter million dollar salary and, and, and??!! When is she working?? Just wondering….

    Pat, feel free to respond. I’d love to hear what you have to say! Thanks. Bye now.

  56. Naomi Schiff

    All snark aside, the thing about the city attorney position is that it comes with a professional requirement (unlike most of the other offices) that the person should be an attorney, and, one hopes, a competent one. Most elective offices don’t carry educational and licensing requirements like this.
    Second, for information: Richard Winnie was an appointed city attorney, and later became the county counsel. He also served on the Measure DD rewrite committee. He was a strong advocate for transparency in government.

  57. len raphael

    BK, does the new city admin really get 9.5 weeks of vacation ? i’m ok with the 250k

  58. BarryK

    Len- Last night, the Council approved her contract and also approved exceeding the pay and benefits package.

    *******
    FYI from Sanjiv Handa, East Bay News Service. This is the Thursday, July 7, 2011, edition of The Oakland Journal.

    Administrator to Receive $273,000 Base Pay — and $63,200 in One-Time Payments

    Deanna J. Santana, who will start her job Aug. 1 as Oakland city administrator, will receive a four-year contract with an annual salary of $273,000 — which exceeds the maximum authorized pay of $263,987.04 in the city’s salary schedule.

    Santana will also receive a bank of 100 hours of sick leave, 120 hours of vacation, and 160 hours of management leave. On her start date, she will accrue leave at the same rate as any employee starting her fifth year on the job.

    Santana will also be paid a one-time, $10,000 relocation assistance allowance. If she quits during the first twelve months, the money must be repaid.

    Santana is likely to get the right to cash out all unused leave at her hourly compensation when she leaves the job — currently pegged at $140 an hour. Her grant of 380 initial hours is a $53,200 bonus.

  59. livegreen

    Either the City made a bad deal or it was the only way to get Ms. Santana to come here.

    I thought there was supposed to be a “nationwide search”. Wasn’t there, and if so what were the results? (It seems odd that this received almost no coverage).

  60. annoyed

    XX made every point I wrote yesterday (and did not post) and more and expressed them far better than I could.

    I said there was little difference between an elected vs appointed City Atty given the current political climate but I’d prefer to vote for the CIty Atty than trust the City Council with another clusterfreck.

  61. annoyed

    Richard Winnie was an exceptional case and far and away more intelligent than anyone mentioned in the foregoing discussion.

    As for resonsiveness by the City Attorney’s office, for me, it was better under Russo. Why would you not be resonsive to the people who voted you into office?

  62. CitizenX

    @annoyed, I’m always concerned, that an elected City Attorney may be most responsive to the people who bankrolled his election. These people don’t always have the best interests of the people of Oakland in mind.

  63. CitizenX

    For kicks, you may wish to look at the list of contributors to the former City Attorney on the Secretary of State’s Cal-Access system. Developers, attorneys who have done millions in business with the City, attorneys who have opposed the City, lobbyists, employee unions, those who have done million dollar deals with the Coliseum, etc. This doesn’t give me a warm feeling that an elected attorney has the interests of the City and its citizens in mind.

  64. annoyed

    Okay. Let’s look at Jane Williams record. What did she ever do for “the people”?

  65. CitizenX

    In my mind, the City Attorney should be the attorney to the municipal corporation — end of story. The job is not the defender of the people, nor should it be the 9th Councilmember.

    I was not trying to bring personalities (Russo and Williams) into the discussion, but merely to point out an obvious downside (potential pay-to-play influence) to having an elected politician as City Attorney.

    I didn’t expect Williams to do anything for “the people”, but merely to do her job and be attorney to the municipal corporation.

  66. Ravi

    The money in politics will always be a corrupting influence until such time as we legislate to reduce it significantly. Thus I think X’s general argument is irrelevant.

    Much more important for this particular time for the city of Oakland is the current corruption and general managerial incompetence of the existing elected gang in City Hall. Oakland needs a City Attorney who is NOT beholden to the existing gang. Russo was not. I think that Parker also has great integrity.

    Until we have get most of the existing gang out of City Hall, we must be very wary of giving them more power to continue to make bad decisions.

  67. CitizenX

    Whatever one’s views on elected vs. appointed, we’ll have an opportunity to see how Oakland fares with an appointed City Attorney, Barbara Parker, for the next year and a half.

    @Ravi, let us know when you get money out of politics. Until that day, I’ll stick with my “irrelevant” argument.

  68. Ravi

    “@Ravi, let us know when you get money out of politics. Until that day, I’ll stick with my “irrelevant” argument.”

    No, it’s not just up to me. It’s up to you, too.

  69. MarleenLee

    I don’t have a strong opinion on this issue one way or another. But a lot of you seem to. Just FYI, if you want to submit an argument for the voter information pamphlet, the deadline is 5 p.m. next Tuesday. Yeah, that soon. Contact the City Clerk’s office if you’re interested.

  70. Patrick M. Mitchell

    Max!! You should be the one to submit the argument. You’re famous due to your many quotes on SFGate and elsewhere.

  71. Mkilian

    I too miss this blog a lot. I also do note that summer recess is effectively over for the City Council with the resumption of Council and Committee on September 13th.

  72. Ravi

    Until this blog rises from its grave, readers might well repeat this mantra: “Measure I, like Measure Y, is just another great big lie.”