“Speedy talked in his soft voice [about the other world known as the Territories] … ‘You know those things you call the Daydreams?’ Jack nodded. ‘Those things ain’t dreams, Travellin Jack … That place is a real place … [i]t’s a lot different from here, but it’s real.’ ‘There’s people in this world have got Twinners in the Territories.’”
City attorneys operate in an alternate world with unique duties and responsibilities, pressures and stresses, colleagues and friends, and their own professional resources including the trail-blazing City Attorneys’ Department of the California League of Cities. Remarkably, much of the rest of the legal community goes about their daily business with little or no waking knowledge of this alternate world, except in rare instances, when they “cross over” to meet with their counterparts, or “Twinners” on the other side. So what is a city attorney?
A city attorney is the general legal counsel for a municipal corporation. Most cities are governed by a city council made up of five elected citizens. The client is the city council which directly hires and fires the city attorney, thereby ensuring the attorney’s autonomy.
City attorneys work with a large body of law, which keeps their practices fresh. Requisite areas include constitutional, land use, personnel, labor, police, fire, public works, parks and recreation, post-redevelopment, economic development, elections and code enforcement law. Statutes commonly relied on include the Ralph M. Brown Act, Tort Claims Act, Milias-Meyers Brown Act, Political Reform Act, Subdivision Map Act, California Environmental Quality Act and Public Records Act.
A city attorney drafts ordinances, resolutions and contracts; reviews and prepares staff reports for city council and planning commission agendas; provides written and oral opinions; confers with city council in open and closed sessions; and represents the city in negotiations, mediations, arbitrations, administrative hearings, court appearances and appeals.
Use of the “Police Powers”
One of the more interesting aspects of this practice involves the drafting of cutting-edge legislation designed to allow the elected city council members to accommodate unique constituent requests. Unlike school districts and private corporations, cities benefit from a broad enabling authority known as the police powers. Thus, the California Constitution provides: “A … city may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” A city attorney with a solid foundation in constitutional law and an appreciation for the elasticity of the police powers can craft unique first-of-a-kind legislative solutions to the delight of grateful council members. One example of reliance on the police powers is Richmond’s use of its powers of eminent domain (e.g., its ability to assume ownership of private property) to seize underwater residential mortgages from private lenders. Whereas other attorneys may operate on the premise that their clients need specific authority to act, city attorneys operate on the premise that their clients have general authority to do anything with respect to local matters, subject only to the constitution and existing general law.
Land Use Matters
In California, city attorneys tend to acquire expertise in planning and land use law. A city attorney typically attends planning commission meetings and gives legal advice concerning substantive and procedural issues. For example, because a zone change is subject to great deference by the courts due to being legislative in nature, it does not need much justification. “Any conceivable rationale basis” has been said to suffice. However, the denial of a discretionary use permit is subject to the “substantial evidence” standard of review, because it is considered “quasi-judicial” in nature. Accordingly, the commission must make findings justifying its decision supported by substantial evidence in the record.
One of the more interesting questions is whether a city’s land use regulation goes so far that its enforcement is a compensable “taking” of property. The complexity of this question has led noted land use attorney James Longtin to observe:
“The lawyer’s attempt to determine at what point a land use regulation becomes so onerous as to become a governmental taking is equivalent to the physicist’s hunt for the quark.”
Working in a Politically Charged Environment
The “city-manager-city council” form of government can present challenges for elected and appointed officials. Ideally, the city council makes policy which the city manager carries out. The city attorney is there to give legal advice, free from political pressure or undue influence. When these roles are maintained, a city can run like a Swiss watch. However, when a council member begins to micromanage city operations, or the manager or attorney decides to create policy, the lines of responsibility become blurred, and the operations bog down. Likewise, a council member’s attempt to influence the attorney’s legal opinions, however innocent or well-meaning, may cause unnecessary and continuing friction.
Job announcements often say the successful candidate for the city attorney position will be “politically astute–but apolitical.” The city attorney must understand the constituent pressures council members face, and the resulting need for the manager to think and act outside the box. But the city attorney must also understand that his or her role is to provide opinions and advice irrespective of the political consequences. The city attorney is in a unique position to outline respective roles at the outset and periodically meet with officials to reinforce those roles, while also demonstrating an ability to craft creative, out-of-the-box solutions to sometimes complicated issues, which are legally-defensible but which also take full advantage of the elasticity of the police powers.
City attorneys do live in another world, which deals with issues large and small. This author was responsible for a dog barking case while fully immersed in the Orange County Bankruptcy. The large variety of legal issues keeps the city attorney’s practice fresh and it is always rewarding to know that one’s opinion makes a difference.
Dave Larsen is a sole proprietor practicing as The Law Offices of David J. Larsen. His general practice emphasizes real estate, land use and municipal law. Education includes a BA and MA from Stanford University and a JD from McGeorge School of Law. See details at Dave’s website at www.dlarsenlaw.com.
 Longtin’s California Land Use, 2nd edition, p. 124.
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