By: Marcus W. Norris*
This article offers general advice for a new city attorney or assistant city attorney on coping with some common hurdles encountered in a municipal law practice. Of course, the reader should always comply with your office procedures and practices manual or superior’s orders, if different from these reflections.
- You are the Government. Everything you learned in law school about the Constitution now applies to and constrains your actions and the advice you offer to client city departments. Disciplining a city employee for social media comments, deleting citizen comments from the city’s Face Book page, or regulating citizen speech in a public hearing? These all implicate the First Amendment. Simultaneous civil and criminal investigations of an employee? Beware of the 5th Amendment and Garrity rights. Know the current precedents in your federal circuit.
- Communication & Information is Key. People will come to you with hidden agendas; they will lie, confuse the chronology, and state opinion as fact. You must listen, withhold judgment, and ask questions. Don’t become the advocate for the first “side” that gets to your office! (A) When a vendor, developer, or citizen complains about a city department’s action, say that you are sorry to hear they encountered a problem. Do not commit to or validate their assertion. Say that you will look into it or refer the matter to a manager, as appropriate. When a city employee complains about those folks just mentioned, then use the same procedure. (B) Ask the complainant if he has talked with higher-ups on the other side. It is surprising how often this does not occur. When you arrange for such to happen, you will often see misunderstandings clarified or a compromise emerge. (C) When a non-managerial employee asks you about a policy or law, you must ask, “what does your chain-of-command say about this?” Otherwise, you may find yourself being a pawn in the internal argument of a city department. Not a good position for you. Refer that employee back to the department to either put the query in a memo or to file a grievance. (D) When a department head contacts you about a personnel issue, make sure HR is included in the discussion, lest contradictory positions or advice emerge within the organization. If you facilitate communication as described here, you will become known as a problem solver.
- Beware of Citizen Demands to Use Power. Many citizens overestimate the power of local government and want you to use that power against their enemy, neighbor, fellow church member, etc. Their beef is not necessarily the city’s beef. If you take the bait, it may get the city sued. Remember the Swingers vs. Christians. (A story I will tell you at lunch.)
- Know Your Client. Your client is the municipal government entity. It expresses itself through the collective voice of the elected governing body, appointed executives, and in some instances department heads, but none of those individuals (or other city employees) are your client. Your loyalty is to the good of the organization. Do not blindly promise confidentiality when anyone opens a conversation asking for such, because she may share something that impacts the organization and you will have a duty to disclose it to others. Consult your superiors or another city attorney you know well. Study the Disciplinary Rules of Professional Conduct, especially the rules regarding confidentiality, organization-as-client, and governmental attorneys. You will become known as an attorney of discretion and high ethical integrity.
- Follow the No Secrets/No Surprises Rule. Promptly (meaning the same business day) tell your superiors when: (A) a council member, city manager, or news media contacted you (superiors may need to know that a particular person is interested in a matter); (B) you have heard of a potentially serious or sensational matter (so your superiors are not blind-sided); or (C) you have made a mistake. Your superiors have the better position and broader experience to: do damage control to protect the client; figure out the root cause — it may not be all your fault; and, protect you from fall-out by early intervention. You will become known as an honest person and a team player.
- Keep the Roles Straight. (A) Council determines policy and gives leadership direction. City management makes it happen. You are their legal advisor. Describe alternatives in a fair, evenhanded, dispassionate manner. Be prepared for the possibility that they may weigh the issues differently or even make a poor choice among alternatives. Clients have that freedom. Maintain your situational awareness: always think political but always act apolitical. (B) Avoid political or campaign questions from elected officials. But if the city secretary or city manager asks, then you may respond or refer them to your superiors for election law advice.
- Go. Get a proper hard hat and reflective traffic vest. Then go see the broken equipment, controversial zoning site, or the drainage ditch at issue between the city engineer and a developer. Alternatives and solutions will more easily come to mind when you see, touch, or hear the problem. Rule of thumb for locating the edge of public right-of-way or utility easement: utility poles are generally set 1-6” inside the outer edge. You will become known as an attorney who wants to understand problems and doesn’t mind getting her hands or shoes dirty.
- Run the Bases in Correct Order. When asked to solve a problem, many government lawyers get into the sad habit of always starting with the law books. (That is the right approach only when construing a law or regulation is called for.) When there is no readily discernible answer in the law book, that lawyer is left with the lame answer of, “it can’t be done.” The remedy to such unimaginative bureaucratic thinking is to run the bases in correct order. First Base: do #2 & #7 in this article. Second Base: determine where the legal, equitable, just, or moral values are in the situation. Third Base: now go to the law books to find a legal doctrine, rule, definition, or exception that provides a means to achieve that legal, equitable, or just solution. You will become known as a practical lawyer who “really knows the law” ─ because you find a legal basis for accomplishing good outcomes. Caveat: There is a right time to just tell your client “no”: when there is extreme urgency, no time to run the bases, and you don’t know the law (such as the 3 a.m. call from a police supervisor confronting a live situation). That may be a time to consider saying, “no, don’t do that.” Why? In most instances, it is more difficult for the government to be sued for doing nothing than it is when the government acts. Use this tool sparingly. The officer may grumble but he knows it is a close call or difficult question; otherwise, he would not be calling you. He will get over it and you will have protected your client as best you could under poor circumstances. Employees will not always agree with your answers, but will respect you for making the tough decision and stating it clearly.
- Strength in Numbers. A unique problem is actually a rarity. It may be new to you, but someone somewhere has likely encountered the municipal problem confronting you. Unlike competitive private law firms, city attorneys are a collegial group. Pick up the phone or email someone. If they are out-of-state, then differences in state law may affect the precise shape of a remedy in your state, but you can gain ideas from others to use or adapt. Become an active member of the Texas City Attorneys Association, International Municipal Lawyers Association, and the IMLA ListServs. You will become known as a savvy city attorney who is aware of trends and solutions from across the state and nation.
- It’s Good to be King. If you represent a home rule city, never underestimate the broad constitutional basis of that home rule authority. The city is empowered to write ordinances as necessary to remedy a host of issues, so long as the ordinance does not violate the constitution or general laws of the state. When writing an ordinance, pause to anticipate and avoid unintended consequences of your words, organization, or sentence structure in that legislation.
- Choose the White (or Less Black) Hat. On occasion, the city will be at risk of suit from each “side” on an issue or may face differing causes of action, depending upon how the city decides the matter. In that case, choose your best hat: which alleged sin would the city rather defend in public? Examples: A sex offender threatens to sue if not hired as a pool lifeguard. Thus, Equal Protection versus protection of children. Or, a question of the city’s legal authority arises. Choice X seems to better protect certain third party legal rights but may jeopardize more lives or property, while Y has a weaker basis in the law but is more likely to protect lives and property. Endorse the course that best protects life or property under the known facts. The city may never get sued. But if it happens and even if a judge concludes the city violated someone’s civil rights, then that can be remedied with money. You will become known as a lawyer has right priorities and the courage of your convictions when the stakes are high.
- Enjoy. You are in a position to improve your city, both internal to the city hall organization and externally to address community problems. Unlike private practice, not every decision or outcome is driven by the client’s financial interests. You will be privileged to wrestle with constitutional issues, matters of public policy, and questions of good governance. Enjoy the adventure!
*Marcus W. Norris has practiced law since 1985, with the last 23 years focused on local government law. He is the former city attorney of Amarillo and Killeen, and a past president of the Texas City Attorney’s Association. In 2015, he was named Government Lawyer of the Year by the State Bar of Texas. He now works with the Municipal Law section of the Underwood Law Firm, providing legal services to approximately 30 cities, hospital districts, and economic development corporations.