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Legal inforelating to the law department in the Model Administrative Code prepared by the National Institute of Municipal Law Of- ficers: Department of Law he Department of Law shall consist of the Attorney who shall enforce all laws and act to protect the interests of the city and who shall: (I) Advise Council. Advise the Councilor its committees or any City officer, when thereto re- quested, upon all legal questions arising in the conduct of the City business. (2) Prepare Ordinances. Prepare or revise or- dinances when so requested by the Councilor any committee thereof. (3) Give Opinions. Give his opinion upon any legal matter or question submitted 'to him by the Council, or any of its committees, or by any City officer. (4) Attend Council Meetings. Attend all Council meetings in their entirety for the purpose of giving the Council any legal advice requested by its mem- bers. (5) Prepare Legal Instruments. Prepare for ex- ecution all contracts and instruments to which the City is a party and shall approve, as to form, all bonds required to be submitted to the City. (6) Prosecute Offenders and Defend Officials. Prepare, when authorized by the Council, all charges and complaints against and shall appear in the appropriate Court in the prosecution of, every person dlarged with the violation of a City or- dinance or of any regulation adopted under au- thority of the Charter, or with the commission of a misdemeanor as declared by the Charter or by \'irtue of its authority. In any prosecution for viola- tion of any regulation adopted by any Board or Commission created under authority of the Charter, the City Attorney shall act under the directions of sllch Board or Commission, subject to such para- mount control as is given to the Council by the Charter. (7) Settlement of Claims. Have the power to adjust, settle, compromise or submit to arbitratioH, any action, causes of action, accounts, debts, claims, demands, disputes and matters of favor of or against the City or in which the City is concerned as debtor or creditor, now existing or which may hereafter arise, not involving or requiring payment to exceed and with the per- mission of the Administrator may do likewise in matters not involving or requiring payment to ex- ceed provided the money to set- tle claims generally has been appropriated and is available therefor. (8) Make Reports. (a) Immediate report of dccision, Immediately report the outcome of any litigation in which the LEGAL SERVICES 405 City has an interest to the Administrator and Council. (b) Annual report of pending litigation. Make an annual report, to the Administrator and Coun- cil, as of the day of of all pend- ing litigation in which the City has an interest and the condition thereof. (9) Control Legal SerV/:ces'lncidental to Coun- cil Action. Have charge of all legal services auxil- iary to Council action in connection with the ap- propriating of property to public use and in the levying of assessments. (10) Workmen's Compensation. Prepare and ap- prove all workmen's compensation payrolls and shall investigate all cases in which workmen's compensation is involved and be responsible for the filing of all documents and papers required by the Workmen's Compensation Act of the State. (I I) Keep Records. (a) Suits. Keep a complete record of all suits in which the city had or has an interest, giving the names of the parties, the Court where brought, the nature of the action, the disposition of the case, or its condition if pending. and the briefs of cou nsel. (b) OPinions and Titles. Keep a complete rec- ord of all written opinions furnished by him and of all certificates or abstracts of titles furnished by him to the City, or any department or official thereof. (12) Deliver Records to Successor. Deliver all records, documents and property of every descrip- tion in his possession, belonging to his office or to the City, to his successor in office, who shall give him duplicate receipts therefor, one of which he shall file with the City Auditor.1 ""hen one adds to this statement of formal duties the informal activities of counseling de- partment heads and elected officials, instruct- ing officers and employees in the elements of public law, examining intergovernmental ac- tivities, and answering inquiries from the pub- lic in general, it is readily seen that the role of the attorney in city administration is indeed critical. ADVISORY FUNCTIONS Under statutes ,and charters, the attorney is the legal advisor to the municipality_ As such, one of his most important functions, if not the most important, is that of serving as ad- visor to the council, the administrator, to 1 NIMLO Model Administrative Code, NIl\ILO ;\lodCI Ordinance Service. National Institute of Municipal Law Officers, \Vashington, D.C. 406 MANAGING THE MODERN CITY boards and commissions, and, indirectly, to the citizens of the municipality. In performing this function, he often is required to be present at council meetings and at the meetings of boards and commissions to render immediate assist- ance. Even when not required to do so by charter or statute, councils and other bodies will request the attorney's presence at meet- ings, This advisory function is exercised in both formal and informal ways, and, when properly utilized, permeates the entire govern- mental structure. Attorneys by training and experience ac- quire skills that can be utilized by the admin- istrator in a variety of ways. The lawyer's skill as a negotiator in settling claims against the city can assist in labor negotiations or inter- jurisdictional disputes. The lawyer's abili- ties in writing are useful in important corre- spondence and in completing critical reports and applications. The legal mind, in spite of its reputation for hair-splitting, is trained to analyze problems and to separate critical is- sues from irrelevant ones. Finally, experienced trial attorneys have devoted their careers to rapidly acquiring extensive knowledge about widely varied subjects. This skill gives the ad- ministrator who has a good rapport with his attorney an "instant expert" who may master not only the legal aspects of a subject, but often its technical aspects as well. A good administrator will utilize the ad- visory nature of the attorney in yet another way. Experienced administrators know that they cannot always see a legal problem in a set of facts and, therefore, as a matter of rou- tine, "touch base" with the attorney on all sub- stantial ma tters. Private attorneys earn a large portion of their incomes and most of their esteem and respect from preventing legal diffi- culties, not correcting them after they have grown to major proportions. Municipal attor- neys are no different. Too often skilled admiri- istrators feel they have mastered all aspects of a situation, including the legal ones. This can have disastrous results. Formal Opinions. The city attorney is usu- ally given the responsibility of submitting for- mal written opinions on legal problems to the city council, the chief administrator, and other city officers. A request for a written opll1lOn asks the attorney to formulate, wi'th all the resources at his command, a recommendation which, in his professional judgment, consti- tutes the soundest course of action for the city and upon which the city may act with re- liance, Formal opinions should always be re- quested concerning proposed courses of action about which serious legal questions can be an- ticipated. A cit.y will be on much firmer legal ground when challenged if it can assert that it proceeded 011 t.he advice of counsel. Formal opinions should be requested only on matters of grave importance. Indeed, the attorney will render a formal opinion only in such cases since most matters can be handled satisfactorily by informal advice, and he is usually reluctant, and properly so, to devote the research effort involved in a formal opinion unless it is fully warranted by the circum- stances. "\tVritten opinions of the attorney do not, of course, have the force of law. A well-reasoned and researched opinion does, however, affect the body of municipal law since it will become known in the fraternity of city attorneys and will influence courts when brought to their at- tention. The administrator and his key de- partment heads should maintain an indexed file of these opinions as a working reference. Briefing Staff and Council on Legal Devel- opments. An important advisory function of the attorney is keeping the administrator and the council fully informed on important new developments in the law. Since municipal cor- porations draw all of their powers from the state legislature, new laws and bills before that body should be reviewed by the attorney and their implica tion brought to the attention of interested officials. No session of the Congress in recent years has adjourned without enact- ing some far-reaching piece of urban legisla- tion and no large city can afford to be unin- formed about available federal financial as- sistance. State and federal court decisions and ad- ministrative rulings often have a direct impact upon local government. The implication of a state court's clear intention to abandon a tra- ditional concept, such as governmental immu- - nity from tort liability for example, should be clearly and forcefully brought to the city's at- tention. The application of a reapportionment decision on council structure or FCC rulings on CATV are similar examples. Individual attorneys and administrators ld work out their own system of briefing fficials on legal developments, Some city at- torneys maintain a legislative bulletin serv- ice; others use regularly scheduled briefing sessions. Counseling with Bom'ds and Commissions. The attorney's relationship with independent boards and commissions is far from clear in most cities. Under some charters he is their legal advisor; in others, such entities are au- thorized to have their own legal staff. 'Vhat- ever relation exists, the administrator should insure that a constant flow of information on the activities of boards and commissions is ob- tained from the attorney (to the extent that the attorney is free to do this.) Relations with the Public. While it is not the duty of the city attorney to advise mem- bers of the general public of their legal rights or about the legality of municipal action, it must be recognized that a significant portion of his effort is expended in this field. In some cities, one of the most frequent sources of con- tact between the public and city government is the attorney's office. The public relations aspect of the office should not be overlooked. A startling example of the frequency of such contacts appears in records kept by the Kansas City Law Department. In 1953, the depart- ment received more incoming calls than any other city department-I,200 incoming calls per week, or about 60,000 per year, supple- mented by 40,000 outgoing calls for a total of about 100,000 annual calls." CIVIIL ACTIONS The city as a municipal corporation may sue or be sued; consequently, it is involved in coun actions that run the gamut of civil law- suits. 'Vhile the city council, as the govern- ing body of the municipal corporation, has the Reported in City A ttomeys alld Their Salaries, tional Institute of Municipal Law Officers, Report 146, 1960, pp. 9-10. LEGAL SERVICES 407 authority to make the basic policy decision about bringing or defending civil actions, it will, of course, rely heavily on the attorney's advice in such matters. The satisfactory handling of civil actions re- quires that adequate lines of communication exist between the city attorney's office and other city departments. "Vhen an action is brought against a city, the legal notice will usually be served on the chief administrator but whoever receives such a notice should im- mediately transmit it to t.he attorney. Civil actions against the city include actions on contracts to which the city is a party, tort actions ("tort" is a generic term used to de- scribe almost every kind of civil wrong other than breach of contract), miscellaneous ac- tions arising out of statutory duties and respon- sibilities, and actions in defense of city officers and employees. A steadily growing field of civil litigation invoh-es the defense of the city's land use regulations against challenges to their validity. T01't Liabilit)>. A tort may be defined as a wrongful invasion of the legally protected rights of others, other than a breach of con- tract, for which the law will afford a remedy in the form of money damages. The most com- mon type of tort action is based upon negli- gence, an unintentional breach of some duty or care owed by the defendant to the plaintiff. The law of torts with respect to t.he acts of a private corporation or person is relatively well established, but the legal principles gov- erning the tort liability of municipal corpora- tions, notoriously vague and inconsistent in the past, have, since 1957, been undergoing rapid change. For fully a century before then, no rule was more firmly established than that a municipal corporation was immune from torts committed by its officers and employees when performing' "governmental" functions, but was liable for torts committed in the course of performing "proprietary" functions. The classification of functions as governmental or proprietary varied from state to stale (and still does where the doctrine of immunity per- sists) and no satisfactory rationale has ever been advanced for the distinctions developed by the courts. 408 MAN AGING THE MODERN CITY lVhile a large number of states still retain the immunity principle, the trend is clearly toward the imposition of liability in this field. The courts of several leading states, including California, 1llinois, Michigan, Minnesota, Florida, and New York have abandoned the doctrine as it applies to municipal corpora- tions, and other states are rapidly following their example. In some states the void left by these decisions is filled by a statutory scheme governing the extent of and procedure sur- rounding municipal liability. Even where immunity is the rule, many states by statute permit cities to circumvent it by authorizing the purchase of public liability insurance, permitting or requiring the defense of police and fire personnel in tort cases, and permitting the indemnification of officers and employees in such actions. It must be noted that no matter what the status of immunity of the municipal employer, the officer or em- ployee who is himself responsible for the tort is still often personally liable. The city may feel a moral obligation to indemnify officers and employees when no willful wrong was in- volved and authority to indemnify permits this to be done even. when the city may not be legally liable. Finally, in those states where courts still recognize municipal immunity, that immu- nity is being restricted rather than expanded. The doctrine is almost entirely comt-made, and although courts are reluctant to overturn long-standing precedent, they do not hesitate to impose liability in situations where no prec- edent exists. Because of this trend toward increasing mu- nicipal responsibility in tort, and because of the vast exposure to liability of a large munici- pality, the number and magnitude of tort claims against cities have risen dramatically in recent years as has th~ magnitude of settle- ments and judgments awarded to successful plaintiffs, In many city law departments the defense of these actions has become the larg- est single activity of the department, and the payment of claims ancl insurance premiums a significant portion of governmental expense. The implications of municipal tort liability and its expansion for the chief administrator are many, but the most important are: (1) the administrator must establish a pattern of co- ordination and cooperation of all departments with the attorney; (2) he must systematically impress upon all employees the importance of safety as it applies to all municipal operations; (3) he must develop an efficient system of rec- ord keeping and reporting of all accidents; and (4) the chief administrator must continually review the adequacy of the municipality's in- surance program, either through self-insurance funds in the largest cities or by commercial in- surance in the typical city. The successful defense of tort claims depends primarily upon two things: the diligence of the city attorney, and the availability of evi- dence for use in preparing and trying the case. The attorney must have the full cooperation of other department heads in terms of access to records, availability of municipal employees as witnesses, and proper funding for an adequate program of defending tort claims. A well-conceived and carried-out safety pro- gram will have two beneficial effects in hold- ing down tort claims. Employees who are con- cerned about and trained to observe their own safety will be more likely to have the same at- titude about the safety of the public, for it is negligent, unsafe conduct by officers and em- ployees that is the basis of many tort claims against cities. In addition, safety-minded per- sonnel will tend to be more alert to unsafe con- ditions to which the public as well as themselves are exposed. The administrator also should impress upon his personnel that because of the broad exposure of municipalities to tort ac- tions, careless or negligent conduct is not only unsafe, but very expensive. An adequate record keeping and reporting system with emphasis on promptness and ac- curacy is vital to proper defense of tort claims. It is particularly important that early infonna- tion be obtained concerning accidents that may lead to claims so that a full investigation may be made by the law department while the evidence is still fl'esh. Since the trial of tort claims often follows the accident or happening by months and even years, the information lIlust be accurate and recorded in such a war that it can be properly presented in t.he future. Finally, the administrator must be sure that the risks of the city in the field of public lia. bility are adequately covered by insurance at the lowest possible premium cost. In this area the administrator, the attorney, the finance di- ector, and the representatives of the insurance ustry must work together, integrating safety programs, reporting and recording sys- tems and interdepartmental cooperation into a balanced program to reduce the expense of tort claims against the city. It should be noted here that some cities, particularly the very large ones, self-insure by either advance fund- ing or annual appropriations. The importance of safety and reporting is the same, however, whatever system of insurance is used. Not all tort claims go to trial. Some are pat- ently nuisance claims. Others involve such clear liability on the part of the city that an out-of-court settlement is advantageous. In still other cases, questionable liability com- bined with high potential damages dictate a settlement. The administration of claims varies from city to c}!y, but in aU cases it is the attorney whose judgment is important in deciding whether to reject the claim or settle. Safety, reporting, and cooperation play just as important a role in settlements as in litigation, for the, most fully informed judgment by the attorney in this area can mean great monetary savings to the city. As an example, in Minne- apolis, Minnesota, in 1992, there were 234 damage claims filed against the city in amounts totalling $1,509,808.61. The total amount paid on those claims after review and settlement was $14,709.70, In the same year, 76 claims went to trial asking $1,171,230 resulting in judgments against the city of $27,702.3 Workmen's Compensation. Closely related to tort claims against the city are claims by employees for compensation for injuries suf- fered in the course of their employment. The liability of the city in workmen's compensation cases is almost universally regulated by statute and is, generally speaking, the same as that imposed by the state on all employers. That is, it is a liability of the employer in fixed 3 Report of the City Attorney's Office, 1962, I\Iinl1e- apolis, Minnesota, p. 3. LEGAL SERVICES 409 amounts quite apart from negligence or wrong-doing on his part. The pattern of protection for the munici- pality in the workmen's compensation field is precisely the same as in the case of tort claims, A proper practice of personnel safety and prompt reporting of injuries will not only save lives, but reduce claims against the city resulting in considerable savings. Again, using the Minneapolis experience in 1962, there were 1,007 workmen's compensation claims filed resulting in payments of $148,156.42,4 Contmet Liability. Generally speaking, a municipal corporation is bound to the faith- ful performance of, its cont.ractual obligations in the same manner as a private person or corporation. Municipal contracting power, however, is circumscribed by a number of pro- cedural and legal limitations not found in the private sector, The doctrines of public purpose and ultm viries contracts, for example, deter- mine the power of a municipality to contract at all, and limitations on expenditures and bidding procedures have a direct bearing on the validity of the contract. These limitations are many and complex, and the administrator should defer to the expertise of the attorney in their application. \'\That the administrator can and should do about contract liability, however, is to have all contractual obligations of the city, large and small, reviewed in some manner by the law department. It is, of course" impossible to consult the attorney on every individual agree- ment the city makes. But the attorney can review procedures for routine purchases, for example, and assist in standardizing all con- tracting procedures for the city. Major and unusual undertakings by the city should, of course, be reviewed by the attorney. The administrator should be aware also that the primary service of the attorney in the contract field is in the nature of preventive medicine. The actual and potential contrac- tual obligations of a city are staggering, and in many large cities municipal government is the largest single purchaser of goods and serv- ices as well as the largest employer. In good 410 MANAGING THE MODERN CITY business-private or public-as in good health, it is far more pleasant and less painful to detect and correct a defect in its early stages than to undergo the trauma of major surgery. Litigation Involving Land Use Regulations. Accompanying the phenomenal urbanization of recent years has been a parallel explosion in the volume of litigation involving munici- pal regulation of land use through zoning ordinances, land subdivision regulations, and official street maps. In fast growing suburban cities particularly, a large portion of the effort of the city attorney's office is devoted to de- fending various attacks on regulations of this type. Although zoning and similar ordinances often carry the same criminal sanctions as other regulatory ordinances, they are seldom enforced by criminal prosecution, but rather violations are prevented by civil actions for injunction. Similarly, aggrieved property owners and their counsel, noting the readi- ness with which courts review council action in the zoning and planning field, seek redress not by amendment of the ordinance but by challenging its validi ty, usually on constitu- tional grounds. Municipalities have not been notably successful in defending such actions in recent years. The success of the city's planning program thus hinges directly on the ability of its land- use controls to withstand legal attack, and their vulnerability to attack is in turn directly related to the administration's care in build- ing a record of deliberative, well-documented, and reasoned action on its part and on the part of the legislative body. The attorney can be of invaluable assistance at every step of the process. He must, of course, have full coopera- tion from the administrative staff when land- use matters are tried before a court. Miscellaneous Civil Actions. There are a number of other civil actions and appearances which the law department will be called upon to defend or initiate. Some of these are: man- damus actions to compel official action; per- sonal defense of individual city officers; emi- nent domain proceedings to take land for public use; utility rate litigation before courts and administrative agencies; and antitrust litigation for damages, PROSECUTION OF ORDINANCE VIOLATIONS The activities of the city attorney relative to criminal or quasi-criminal cases are confined mainly to the prosecution of violations of city regulatory ordinances. He may be required by statute to prosecute minor violations of state laws, but felonies and other major offenses are commonly handled by a county or state at- torney. The only obligation resting upon the city attorney in such cases is to see that the complete cooperation of his investigative staff is given to the prosecution. Ordinarily the police, fire, health, or other inspection departments will report violations of city ordinances, and whenever the ordi- nance is one designed to be enforced by fine or imprisonment an investigation of the facts should be started immediately. Often the at- torney will rely on the investigation made by other city officeJ:s, but in some instances his own staff will make the investigation. The decision to prosecute or dismiss crimi- nal complaints is left generally to the discre- tion of the attorney. Here, as in tlle case of the settlement of lawsuits, he has the burden of determining when it would be to the city's financial or other advantage to press the mat- ter by court action. Criminal prosecution to secure compliance with regulatory ordinances is looked upon by most administrators and at- torneys, and properly so, as the last resort after persuasion, consultation, or summary enforce- ment methods such as violations bureaus have failed. Even if prosecution is all that remains, the attorney may recommend dismissing the charge because of the high cost of prosecution, small possibility of conviction, or other good reason. Successful prosecutions depend upon com- plete, well-presented testimony and evidence, and upon extreme care in obsen'ing the con- stitutional restrictions surrounding the rights of those accused of crimes. (The right to counsel and confession rules, undergoing de. velopment by the courts, have not yet been applied to all misdemeanors, but they do ;lP- ply to certain misdemeanors of a serious )1;1- ture.) The chief administrator, particularly where the city charter makes him the chief law enforcement officer, and the attorney have a joint responsibility to ensure that all municipal officers are fully trained in giving testimony in court and in properly informing accused persons of their rights. Many munici- palities have established training programs of this sort or utilized the in-service training facilities of colleges, universities, and related organizations, PREPARATION OF LEGAL DOCUMENTS An endless array of legal papers must be pre- pared by the attorney. Among these are con- tracts, leases, deeds, bills of sale, easements, franchises, forms, notices, releases, invitations for bids, and ballots. This kind of work is the lawyer's stock in trade and the municipal attorney regularizes the preparation of these documents to the extent that it appears quite routine. In fact, some routine matters can be covered by general instructions from the at- torney and left to responsible department heads and their deputies. Extreme caution should be exercised, how- ever, to prevent other than the most routine preparation of papers from being performed by anyone but the attorney. Defects of pro- cedure in legal transactions involving public bodies have far more serious consequences than similar defects where private parties are involved, As suggested earlier, the attorney's special skill in written expression can be utilized by the administrator in many ways. The attor- ney's help in the preparation of administra- tive manuals, departmental rules, and impor- tant correspondence should be obtained when- ever possible. LEGISLATIVE DRAFTING Municipal officials will often find it necessary to seek changes in the municipality's charter Or in state legislation affecting the munici- pality. The municipality's own legislative code is constantly in need of revision and amend- ments. In these tasks, the attorney has a central role. Charten or Statutory Changes, 'When the municipality's charter or basic incorporation act is found inadequate in some respect, the LEGAL SERVICES 411 attorney should be asked to draft proposed amendments. The procedural requirements for approving amendments vary from state to state, but the technique of draftsmanship is basically the same everywhere. Since legisla- tive 'drafting is a fairly recondite skill, the attorney may employ special counsel to assist him. 'When presenting drafts of proposed amendments to the council, the attorney should be asked to furnish an explanatory memorandum, detailing the precise effect of the draft and the degree to which it meets the council's wishes. In m'any instances, a new grant of statutory authority needed by one local government is needed by all municipalities in the state, vVhenever a municipality decides to seek new legislation, it should consult with its state municipal league about possibilities for as- sistance. The leagues can be extremely help- ful in all phases of the legislative process, from drafting to actually lobbying the bill through the legislature. Even when the bill is not one of statewide concern, the expertise of the league's legislative representative can be invaluable. Preparation of Ordinances and Resolutions. A common function of the attorney is the preparation of ordinances and resolutions. It is not necessary at this point to distinguish between these two forms of enactment. The distinction will usually depend upon the city charter or statutory procedure specified in state law. Many ordinances are routine in form-for example, a budget ordinance, authorization for the payment of bills, and formalities in connection wi th actions of the council. These do not constitute a difficult problem.. They should be prepared by the attorney in advance of council meetings and referred to the official to whom the particular matter has been delegated. < The preparation of regulatory ordinances, on the other hand, is not a simple matter. These are laws of local application, bearing the same binding effect as state law, and they must be prepared with great care. A defective ordinance is unenforceable and thus worthless, Once the decision is made that a new regu- 412 MANAGING THE MODERN CITY latory ordinance is needed, a memorandum .outlining its objectives should be prepared and given to the attorney. The attorney should then prepare a draft of the ordinance and review it with the officials who will en- force it. If the draft is found workable, it should be presented to the council with an explanatory memorandum. There are several important rules to follow in this apparently simple process: 1. Always have requests for new ordinances in narrative form; do not present the attorney with an amateur draft since he will always rework it and may in the process mistake the intent of the reg uest. 2. A lways ask the attorney to provide an explanatory memorandum with his draft. This will help avoid arguments about the precise meaning of the draft. 3. Never attempt to draft an ordinance by committee. The attorney will appreciate sug- gestions on the mechanics of the ordinance, but preparing the language is strictly a one- man job, 4. Try to ensure that the council does not attempt to amend the proposed ordinance without consulting the attorney. Legislative bodies often feel compelled to improve on grammar and style, In addition to dismaying the attorney, this practice can invalidate the ordinance. Codification of Ordinances. Reference has often been made in the preceding paragraphs to the city's "legislative code," or "ordinance code," An ordinance code is a systematic in- tegration of all municipal ordinances into a single book, organized by subject matter, tied together by a common numbering system, and thoroughly indexed. A municipal code is es- sentially similar in form to the statutory codes of federal and state laws. Responsibility for inte6'Tating new ordinances immediately into the code and repeals of existing ones should be assigned to the attorney. The advantages of codifying city ordinances are many and obvious. Citizens can be ex- pected to obey regulations only if they have some means of learning what these regulations are. The same principle applies to those charged with enforcement. Further, since many ordinance codes contain the city charter or enabling act and administrative as well as regulatory ordinances, they serve as a basic document for all key elected and appointed officials, as well as for interested citizens and grou ps. In spite of the obvious value of ordinance codes, a large number of cities still attempts to operate with nothing more than agglomera- tions of resolutions and ordinances. Such ag- glomerations usually contain laws of which some are mere anachronisms, some are plainly invalid, and others have been long since re- pealed, No city can operate efficiently under such circumstances. \Vhile the initial codifica- tion of ordinances is an expensive task, espe- cially when outside experts are utilized, as is often the case, the investment in money and ef- fort pays handsome dividends in effective mu- nicipal government. HEARINGS AND INVESTIGATIONS The city attorney serves the city in advisory and representative capacities in a vast number of hearings, investigations, and formal ap- pearances before administrative agencies and other q uasi-j udicial bodies. '<\Tithin the city structure there are many activities, judicial or semi-judicial in' nature, which require the services of legal counsel. Examples are zoning boards of adjustment and appeal, civil service commission hearings on discipline or suspension matters, council committee work on licensing, and investiga- tions of various kinds. The attorney must- and in fact is the only person in city govern- ment fully qualified to-ensure that legal requirements of procedural and substantive due process are full)' met. This is particularl)' important since failure to meet rigorously such requirements might negate the entire work of these boards and commissions. , Outside the city structure, the attorney is the legal representative of the cit)' in appear- ances before state and federal regulatory agencies. In this connection the attorney should be sure the city is notified of proposed rule making by state agencies and that the implication of proposed rules are explained to the city council and administration. If rules adverse to the city's interest are being pro- posed, the attorney should be authorized to make an appearance before the rule-making body and present the city's viewpoint. Appearances on legal matters on behalf of the city are often made by the chief adminis- trator, the mayor, or the council president. The advisory role of the attorney here is ob- vious. Regardless of who makes the appear- ance, however, close coordination should be maintained with the attorney so that the most effective presentation may be made. INTERGOVERNMENTAL ACTIVITIES Observations about the growing interdepend- ence of various levels of government in the federal system are rapidly becoming common- place. The concept of intergovernmental co- operation grows in importance each year as both a practical necessity in dealing with the phenomenon of urbanization and as a mean- ingful approach to the solution of regional and interjurisdictional problems. Here again, the problem of coordinated effort by govern- mental units is much more formidable than similar activity in the private sector, and again the attorney can playa key role. Relations with Other Local Governments. The attorney's advice should be sought when- ever legal questions or problems arise during the cot:rse of formal contacts between the city and other units of local government. Further; in addition to his legal expertise, the attorney is often the only official fully aware of the exact boundaries and powers of all of the various local governments, including spe.cial districts, with jurisdiction in or near the city, Thus his advice on questions involving the city's relations with its local government neighbors can be indispensable. In particular, there are two specific instances in which legal advice should be a prerequisite to action by the city. First, the attorney should be at the center of the negotiating and con- tracting that precedes joint undertakings by the city with other units of local government. Further, the attorney should keep the city advised of its responsibilities in executing such joint agreements and in discharging those functions, such as law enforcement, for LEGAL SERVICES 413 which it shares responsibility with the county or other unit of local government. Second, the attorney is uniquely qualified to assist the city in coping with the problem of fringe-area development, in formulating a proper policy toward the extension of city services beyond city boundaries, and in expanding city bound- aries by annexation. City-State Relations. Many of the functions of the attorney in the arca of city-state rela- tions have already been mentioned and need no further elaboration. But one point deserves special emphasis. Cities arc completely de- pendent on the state for the two inputs they must have to do their governmental job- legal authority and sources of revenue. The attorney is responsible for informing the city administration and council about a deficiency in the one and assisting the city in influencing an, equitable state policy toward the other. Both aspects require a familiarity with the state legislative process, and increasing em- phasis is being placed by cities on their at- torneys as legislative representatives. City-Federal Relations. There are few as- pects of municipal government that have not been affected to some degree by the intense activity of the federal government in recent years. The city attorney's office, geared as it usually is to keeping track of state legislative developments, is uniquely suited to perform- ing the same function for federal activity. Because eligibility criteria for participating in federal programs are matters of federal law and agency regulation, the attorney's services are indispensable, not only in deciding whether to utilize a particular aid program, but also in preparing the application and sub- sequently in administering the program. MISCELLANEOUS FUNCTIONS AND DUTIES There are a number of related activities that are the proper work of the attorney. These include participation in state and national organizations, participation in in-service train- ing programs for municipal personnel, and advice in executing a number of financial procedures. ParticiPation in State and National Organi- zations. The enlightened city attorney finds 414 MANAGING THE MODERN CITY active participation in his state organization of municipal attorneys (usually affiliated with the state association of municipalities) and in national clearing houses of municipal infor- mation, such as the National Institute of Mu- nicipal Law Officers, a necessity in order to keep abreast of developments. The publica- tions, conferences, schools, research services, and scores of other advantages which only united group action can provide, enable the city attorney and his staff to maintain a grasp of the rapidly growing field of municipal law. Tmining Functions. A knowledge of fun- damentals of public law is of immense value to every department head or other city official holding a position of responsibility. Training of this sort is valuable at all levels, from coun- cilman to typist, and a necessity in the case of inspection personnel and law enforcement officers. Obviously, the attorney should be a key element in any legal training program. The purpose of such training is not, of course, to make attorneys out of city officials. In this area, as in many others, a little learn- ing is a potentially dangerous thing. Legal first aid is often as necessary as medical first aid, however, and preventive measures can often save the doctor's-or the attorney's- call. The officer or employee who understands the legal requirements that surround the op- eration of city government and who appreci- ates the legal implications of his actions will be more likely to recognize legal problems and appreciate the need for legal assistance before a serious legal entanglement arises. Personnel training takes on special signifi- cance in the regulatory field. Police personnel must have regular training in such matters as the laws of arrest, searches and seizures, and the rights of the accused in general. The at- torney should be responsible for this training. Inspection personnel, too, need periodic train- ing in the rules of evidence, the meaning and practical requirements of the concept of due process of law, and the statutory and ordi- nance framework of the programs they en- force. In-service training programs on these subjects conducted by the attorney or other qualified personnel are highly desirable. Fiscal Procedures. The levying of taxes, administration of city accounts, issuance of bonds, and other fiscal procedures are so gov- erned by a multitude of state laws that careful attention to their legal aspects is necessary. Cities usually finance their capital acquisi- tions by selling bonds. Since the procedure for such sales is usually, if not always, specified by statute, the validity, and hence the market- ability, of the bonds depends upon these pro- cedures being followed exactly. The function of the attorney here is obvious, and his judg- ment and care are commonly substantiated by independent expert counsel whose opinion of validity is an integral part of the bond issue. Private bond attorneys frequently are retained for contimling assistance in all phases of bond proceedings, particularly those bond issues of any magnitude. The proceedings for the imposition of spe- cial assessments against benefitted property to finance public improvements must also be con. ducted with continuous counsel from the city attorney. Budgeting, funding, financial reporting, and fund management are all functions of the fmance department governed by more or less rigid statutory, charter, or ordinance provi- sions. The attorney can assist the finance offi. cer in conforming to them. CONCLUSION This section has examined the broad range of services provided by the attorney and his all- inclusive concern with every aspect of munici- pal government. It has been emphasized that the administrator can make valuable use of the attorney's combination of talents and skills. The need for close coordination be- tween the attorney and administrator has been demonstrated. All that remains is to state a few basic rules that administrators s,hould bear in mind when dealing with their attorneys: 1. Establish a regularized liaison with the attorney in the form of staff meetings, inter- change of memos, and related devices. 2. Keep the attorney informed of proposed regulatory programs, controversial matters on council agendas, and the status of on-going projects requiring his periodic review. 3. Channel all legal inquiries through the chief administrator or responsible deputy. A single response to common problems can sat- isfy everyone's curiosity, and prevent du plica- tion of effort by the attorney. 4. Rely on the attorney's judgment and never second-guess him. Sound legal advice is the cheapest insurance the city can buy, A half-serious but effective presentation of these points appears in Figure 16-1. Organization and Administration of the Law Department The city attorney; whether employed full or part-time, is a department head in his own right and, for that reason, a certain proportion of his time is taken up with matters which are not legal, but executive or administrative in nature, The size of a city law department varies, from that of the small municipality where the attorney is the department to the mammoth legal departments of the great met- ropolitan cities. The larger the legal staff, the more the chief legal officer tends to become an administrator rather than a lawyer. But even the one-man staff has need of adminis- trative skill since he must very often deal with other officials in his capacity as department head. THE LAW DEPARTi\lENT IN THE ADMINISTRATIVE STRUCTliRE Most students of public administration would agree that, ideally, the law department should be coequal with other city departments, with the department head-the city attorney- ap- pointed by the chief administrator and re- sponsible directly to him. This ideal is far from reality, however, and this fact has im- portant implications for the administrator. Attainment of the ideal is impaired largely by two factors: the process through which attorneys are usually selected, and the special nature of the attorney's role as legal advisor to the council as well as to the chief adminis- trator. Method of Selection, There is little uni- formity among municipalities in the method 1. If you are holding regular conferences with your attorney, stop doing so at once. This will keep him from finding out what you have in mind that would require legal guidance. 2. Call him at least once each day on minor prob. lems and always time the calls so that they are in mid-morning or mid-afternoon, never the first thing in the morning or the last thing in the afternoon. 3, When you call him never accept the statement from his secretary that he is in conference, in- sist in breaking in on him at any time, espe- cially if your question involves a very minor item. 4. Stop following up on projects which he is work- ing on, let him drift along without any informa- tion as to changes in plans on these projects. 5. Stop informing him of any proposals you may have which involve legal pitfalls, such as firing an employee with veterans' preference. 6. Proclaim new ideas or plans of action publicly before you check with your attorney on their legality. 7. Start campaigns of enforcement of minor laws or ordinances without warning. This should help to bring the wrath of the tax-payers down upon the attorney demanding legal interpretation of the law. S, Leave your attorney in the dark, especially in regard to legal points coming up at council meetings. This can be accomplished very simply by not sending him copies of the council agenda before the meeting. 9. Throw him a Jot of routine clerical work to do, such as drafting standard resolutions and con- tracts. 10. Avoid channeling legal inquiries from staff mem- bers across your desk. Have your employee go directly to the atforney and he can sort them out. 11. Destroy written decisions which you receive from your attorney. In that way you can make your attorney go back and resurrect his own files when parallel cases arise on which he has already rendered a decision. 12. Consult other legal sources to embarrass him. This may be accomplished quite nicely by getting written opinions from the League of Minnesota Municipalities office and memorizing case his- tories before you pop the question on your at- torney and thereby impress everyone with your excellent legal knowledge on minor points, while your attorney stalls for time. 13. After your attorney has rendered a decision show your dissatisfaction by stating that you still want an Attorney General's opinion in writing. 14. Always make your attorney give his legal opin- ions at public meetings, thereby putting him on the spot in case troubles arise later. 15. Answer legal questions yourself at city council meetings. This always makes for an interestingly embarrassing situation for your attorney who does not want to publicly point out your ignor- ance or make it appear that you do not know what you are talking about by his giving the cor. rect information which differs from what you have already said.