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HomeMy WebLinkAboutNB01-City Attorney ORDINANCE NO. AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER 2.20 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO CITY ATTORNEY APPROVAL TO RETAIN OUTSIDE SPECIAL COUNSEL SERVICES. 1 2 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 3 4 5 SECTION 1. Chapter 2.20 of the San Bernardino Municipal Code is hereby repealed in its entirety. I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 6 7 Common Council of the City of San Bernardino at a meeting thereof, held on the 8 _ day of ,2001, by the following vote, to wit: 9 10 11 12 13 14 15 16 17 COUNCIL MEMBERS: ESTRADA LIEN MCGINNIS SCHNETZ SUAREZ ANDERSON MC CAMMACK ABSTAIN ABSENT AYES NAYS 18 19 City Clerk 20 The foregoing Ordinance is hereby approved this _ day of ,2001. 21 22 23 24 25 JUDITH VALLES, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN City Attorney 26 27 28 HTC/ealspcousv2.ordl (1/13/ J_ '_d I the officer or board appointing him, and when an appointment is made to fill a vacancy in an unexpired term, the person appointed shall, if it be an appointive office, hold for the unexpired term and if for an elective office until the next succeeding general municipal election, at which time the office shall be filled for the balance of the term by an election. (As amended by special election held November 4, 1924.) (Section 231 repealed by election held February 6, 1973) (Section 232 repealed by election held February 6, 1973) (Section 233 repealed by election held March 6, 1979) Section 234. Reimbursement For Expenses. That elective officers shall be entitled to receive reimbursement for their necessary expenses while engaged on Municipal business, including mileage in the City of San Bernardino, such expenses not to exceed the expenses authorized for other City employees or officers. (a) The Mayor and Common Council shall, with all due diligence, contract with the Board of Administration of the State Employees Retirement System, and do all things necessary to provide for the participation by the City of San Bernardino and the employees thereof, in the State Employees Retirement System, with full credit being given to the employees of said City for prior service rendered. (b) That any contract so entered into by said Mayor and Common Council with the Board of Administration of the State Employees Retirement System shall only be terminated by an ordinance adopted by a majority vote of the electorate of the City of San Bernardino. (As amended by elections held May 16, 1944, March 19, 1945 and March 7, 1989) Section 235. Qualification of officers. The City Clerk and City Treasurer shall have been qualified electors and residents of the City for a period of at least thirty (30) consecutive days prior to their appointment or filing of their nomination papers for election to office. (As amended by elections held February 6, 1973, and November 2, 1976) (Section 236 repealed by election held February 4, 1969) (Section 237 repealed by election held February 4, 1969) Section 238. Power to Reject Bids and Readvertise. In all cases where advertising is required for sealed proposals under Section 140 of this Charter, the Mayor and Common Council, or any board or officer making such advertisement, shall have power to reject any or all bids and readvertise in their discretion. (Section 238, Subsection (a) repealed by election held February 6, 1973) (Section 239 repealed by election held February 6, 1973) Section 240. Taking or Damaging Private Property. Whenever it becomes necessary for the City to take or damage private property for public use, the Mayor and Common Council may direct proceedings to be taken therefor under the provisions of the Code of Civil Procedure of this State to procure the same. (City Attorney Opinion No. 91-16) . Section 241. Employment of Legal Counsel. The Mayor and Common Council shall have power and authority to employ and engage such legal counsel and services [Rev. January 23, 1998] C - 33 /llt3/ J- 8-0\ and other assistants, as may be necessary and proper for the interest and benefit of the City and the inhabitants thereof. (City Attorney Opinion No. 89-11; City Attorney Opinion No. 87-59; City Attorney Opinion No. 87-36) Section 242. Qualifications of City Employees and Appointment. The Mayor and Common Council may prescribe the number, qualification and compensation of the deputies, clerks, assistants, employees and attaches of the City Attorney, City Treasurer and City Clerk. All deputies, clerks, assistants, attaches and employees of the City Attomey, City Clerk and City Treasurer shall be appointed by the respective officers with the consent and approval of the Mayor and Common Council, and shall hold office at the pleasure of the officers appointing them. (As amended by special election held November 4, 1924.) (Scott v. Common Council (1996) 44 Ca/.App.4th 684, 687-688, 696; City Attorney Opinion No. 93-19) (Section 243 repealed by election held November 5. 1974) Section 244. When Charter Takes Effect This Charter shall take effect from and after its approval by the Legislature of the State of California. Section 246. Civil Service Board - Appointment. A Civil Service Board is hereby created which shall consist of five members who shall be qualified electors of the City and appointed as hereinafter provided. The three members in office on the first Monday in May, 1959, shall continue to serve for the remainder of their respective terms. On July 1, 1958, or as soon thereafter as this Charter amendment becomes effective, the Mayor, with the consent and approval of the Council, shall appoint one member to serve until the first Monday of May, 1959, and one to serve until the first Monday of May, 1961, and thereafter, by rotation in the following manner: Two members shall be appointed on the first Monday of May, 1959, two on the first Monday of May, 1961, and one on the first Monday of May, 1963, each for a term ofsix years. On the first Monday of May, 1965, and every odd numbered year thereafter, the Mayor with the consent and approval of the Council, shall appoint the same number of members ofthe Civil Service Board for a term of six years as the number of members whose term of office expires at that time, who shall take office the first Monday of May of said year, or as soon thereafter as appointed and qualified. Members of the Board shall not hold any other public office. (As added by special election held November 4, 1924 and amended by special election held June 3, 1958.) (City Attorney Opinion No. 95-12; City Attorney Opinion No. 93-7.; City Attorney Opinion No. 93-7; City Attorney Opinion No. 91-8; City Attorney Opinion No. 91-4) Section 247. Civil Service to Organize and Appoint Secretary. Immediately after appointment and qualification the Board shall organize by electing one of its members chairman. The Board shall appoint a Chief Examiner who shall also act as Secretary of the Board. The Board may appoint such subordinates as the City Council may, by ordinance, prescribe. (As added by special election held November 4, 1924.) (City Attorney Opinion No. 95-12; City Attorney Opinion No 91-8; City Attorney Opinion No. 88-9.) Section 248. Classified and Unclassified Civil Service. The Civil Service of the City of San Bernardino is hereby divided into the unclassified and the classified service: (1) The unclassified service shall include: (a) (b) All officers elected by the people; All officers appointed for a definite term; [Rev. January 23, 1998] C - 34 Recreation and Community Services Department during the process of its preparation and make recommendations with respect thereto. B The Commission shall advise the Mayor and Common Council on: 1. Community needs and problems for the purpose of providing a basis for establishing departmental priorities, goals and objectives; 2 Programs and plans designed to meet stated goals and objectives in, but not limited to, the following areas of concern: youth affairs, senior affairs, consumer affairs, discrimination in housing and employment, and community service centers; 3 Coordinating on a City-wide basis the work of those community agencies and organizations engaged in the providing of human services; 4. Evaluation of all community agencies and organizations receiving City funds for the purpose of providing human services. (Ord MC-313, 11-7-83: Ord. MC-299, 8-15-83: Ord. 334793,1973) 2.18.040 No compensation - Meetings. Each member shall serve without compensation. Immediately after appointment and qualification, the Commission shall organize by electing from among its membership a chairman and a secretary. Regular meetings shall be held at least once a month. Five members shall constitute a quorum, but a lesser number of members may adjourn from time to time. (Ord. MC-299, 8-15-83; Ord. 334794,1973.) Sections: 2.20.010 2.20.020 2.20.030 2.20.040 2.20.050 2.20.060 2.20.070 2.20.080 2.20.010 Definitions. Chapter 2.20 SPECIAL COUNSEL SERVICES Definitions. Coordinated legal services. Requests for legal services. Retaining special counsel. Scope of legal services. Legal services procedures. Outside counsel. Confidentiality of matters related to prospective or pending litigation. A. "City" shall mean the City of San Bernardino, California. B. "City Attorney" shall mean the City Attorney or, in his or her absence, the Assistant City Attorney, or in the latter's absence, the highest ranking Deputy [Rev .July), 2000J 2-19 City Attorney available. C "Council" shall mean the Mayor and Common Council as that term is defined in Section 40 of the San Bernardino City Charter. D. "Special counsel" shall mean an attorney at law licensed to practice in the State of California who specializes in a field such as bond financing, workers compensation liability, public and property damage liability, water matters or other specialized field. (Ord MC-374,6-4-84.) 2.20.020 Coordinated legal services. The performance of all municipal legal services shall be coordinated, centralized and processed through the City Attorney, subject to the provisions ofthis Chapter. Any summons or claim served upon the Mayor or City Clerk or other City officer shall be transmitted to the City Attorney immediately upon receipt. (MC-374, 6-4-84) (City Attorney Opinion No. 89-11; City Attorney Opinion No. 87-59) 2.20.030 Requests for legal services. Requests for the performance of legal services for the City or any City officer or department thereof shall be directed to the City Attorney. Requests for legal services other than oral advice shall be made in writing. (Ord. MC-374, 6-4-84.) (City Attorney Opinion No. 87-59) 2.20.040 Retaining special counsel. Special counsel shall be retained by the Council pursuant to Charter Section 241 subject to the recommendation of the City Attorney that such counsel is necessary in instances when legal specialization not possessed by the City Attorney is required or when the City Attorney is unable or disqualified from performing such legal services. Special counsel shall not be retained when the City Attorney is willing and able to perform the legal services as a part of the ordinary professional functions of his or her office. The City Attorney shall advise the Mayor and Common Council as to the experience and qualifications of attorneys considered for retention as special counsel. (Ord. MC-374, 6-4-84) (City Attorney Opinion No. 89-11; City Attorney Opinion No. 87-59) 2.20.050 Scope of legal services. The scope and cost of the legal services to be performed by special counsel shall be authorized and delineated by the Council, and the scope of such services shall not be modified except when relevant to such authorization, as determined by the City Attorney. (Ord. MC-374, 6-4-84) 2.20.060 Legal services procedures. The product of legal services performed by special counsel shall initially be [Rev. July 5. 2000] 2-20 presented to the City Attorney for review and coordination before final submission to prevent duplication and to enhance the quality of legal services. Special counsel shall consult with the City Attorney concerning the legal services prior to completion. The City Attorney and special counsel shall be named as co-counsel in any court case or legal proceeding instituted. Any request or directions made to special counsel from any City officer shall be coordinated through the City Attorney. The City Attorney shall be briefed and informed prior to legal services being presented to or performed on behalf of any City official or officer. (Ord. MC-374, 6-4-84) 2.20.070 Outside counsel. Any City officer desiring legal services concerning City business from legal counsel other than the City Attorney shall first inform the City Attorney of such intended request for outside legal services to determine whether the City Attorney is willing and able to provide such services. No City officer shall be authorized to obligate the City for payment of services of outside counsel without the express approval of the Council. No City officer shall utilize outside legal services concerning City business without the approval of the City Attorney or Council; provided, however, that nothing herein shall preclude any City officer from obtaining outside legal services at his or her own expense concerning the personal or public rights, duties, privileges or benefits of such officer as an individual or as an office holder, or from obtaining at his or her own expense legal services of a private nature. (Ord. MC-385, 6-18-84; Ord. MC-374, 6-4-84.) (City Attorney Opinion No. 89-11; City Attorney Opinion No. 87-59; City Attorney Opinion No. 87-36) 2.20.080 Confidentiality of matters related to prospective or pending litigation. The Council at a public meeting may authorize and appoint the Mayor or not more than three members from the Council to act as its representative or representatives, subject to coordination with the City Attorney, in communicating or conferring with special counsel retained in special matters or court actions. Unless authorized or appointed by the Council to communicate or confer with special counsel, neither the Mayor nor any member of the Council shall confer with or give any direction to special counsel concerning the case or court action, unless done in a closed session held during meetings of the Council. This provision shall not limit the right of the Mayor or any Council member to obtain information concerning any such matter or court action from the City Attorney. The Council shall limit discussion of the City's position in litigation, except as to matters which are of public record, to closed sessions and shall keep attorney- client communications and discussions at such closed sessions private and confidential. (MC-374, 6-4-84.) Chapter 2.22 PLANNING COMMISSION' 5 For statutory provisions on City planning commissions, see Gov. Code 965150; for provision on City planning, see Gov. Code 965100 et seg. [Rev. July 5. 2000] 2-21 - -... D-~ .,,". . '-'. CITY OF S~ BERNARDINO . '., / , _.r~,. 300 NORTH "0" STREET. SAN BERNAROINO.CALlFORNIA 92418 JAMES F. PENMAN CITY ATTORNEY (714) 384-6355 June 30, 1987 'sS =- rn C") rn ~ <: m <::> I I a - ::::; a -< C> - r - rn \0 ;;0 'X Opn No. 87-36 10.37 700.1 Honorable Mayor and Common Council Re: City Council, Power to Retain Counsel QUESTION Can the Mayor and Common Council retain outside counsel? If the answer is in the affirmative, must the Mayor and Common Council first obtain the approval of the City Attorney before retaining outside counsel? ANALYSIS The question centers on the interpretation of two Charter sections which seem to conflict. Charter Section 55(d) provides: "The City Attorney shall be the chief legal officer of the City; he shall represent and advise the Mayor and Common Council and all Citv officers in all matters of law pertaining to their offices; he shall represent and appear for the City in all legal actions brought by or against the City . . . " (Emphasis added) Charter Section 241 authorizes the Mayor and Common Council to employ legal counsel: "Employment of legal counsel. The Mayor and Common Council shall have the power and authority to employ and engage such legal counsel and services and other assistants, as may be necessary and proper for the interest and benefit of the City and the inhabitants thereof." .5 -/0 ~ ~ Mayor and Common Council June 30, 1987 Page Two The courts characterize the seeming conflict between Sections 55(d) and 241 as a question of a public agency's authority to contract for special services where a regular officer or employee of the agency is obligated by law to perform such special services. The rule is: "Two sections of the Government Code . . . expressly authorize a general law city, and other public agencies, to employ and compensate personnel for the performance of 'special services.' . . . a public bodY mav not validly do this where a reqular officer or employee thereof is obliqated bv law to perform such services (citations) and is willinq and able to do so as part of the ordinary professional functions of his position. " [Tlhis proscription applies to a chartered city whose charter imposes upon one of its regular officers, the duty to perform the services in question " Montqomery v. Supreme Court. County of Solano (1975) 46 Cal.App.3d 657, 668, 121 Cal.Rptr. 44) (Emphasis added) When this rule and the general rules for the interpretation of Charter provisions are applied, Charter Sections 55(d) and 241 are not in conflict. The applicable rules of Charter interpretation are: "All provisions relating to the same subject must be construed together so as to harmonize with each other. If two apparently conflicting sections can fairly be given an operative effect through a different construction, that construction will be given to avoid the conflict. . ." (45 Cal.Jur.3d, Municipalities Sec. 59) The two sections harmonize where the Mayor and Common Council's authority "to employ such legal counsel . . . may be necessary . . . " is read to make the Mayor and Common Council's authority to hire contingent on a finding of~. The ~ test is the one stated in the Montqomery case. The Mayor and Common Council must find that there is no regular officer of the City required by law to perform the service or that the officer is disqualified or not willing or able to provide the legal service as part of the ordinary professional function of his position. When construed in this way, the apparent conflict between Charter Sections 241 and 55(d) is resolved. ~ ,-.. ...... Mayor and Common Council June 30, 1987 Page Three San Bernardino Municipal Code Chapter 2.20 is a specific expression of the Montaomerv rule as it applies to the City Attorney. San Bernardino Municipal Code Section 2.20.070 provides: "Any City officer desiring legal services concerning City business from legal counsel other than the City Attorney shall first . . . determine whether the Citv Attornev is willina and able to provide such services . . . No City officer shall utilize outside legal services concerning the City business without the approval of the City Attorney or Council . . . " (Emphasis added) In the absence of San Bernardino Municipal Code Chapter 2.20, the Charter mandates the basic relationship expressed in that section. Addressing the issue in another context, the courts have given an insight into the policy reasons behind the rule let out in Montaomerv: "The law will not indulge an implication that a public agency has authority to spend public funds which it does not need to spend; that it has authority to pay for services which it may obtain without payment; or that it may duplicate an expenditure for services which the taxpayers have already provided." Jovner v. Stockton (1961) 14 Cal.Rptr. 49, 54. CONCLUSION The Mayor and Common Council may retain outside counsel, but they must first obtain a determination from the City Attorney that he or she is either unwilling or unable to perform the desired service. Rl;.SP. ct.fUllY s.ubmitted, , --.)/~ L , 4 I ~'" ~ HN F. WILSON Deputy City Attorney JFW:ca cc: City Administrator City Clerk Concur: ~ , . ,,(t. "-.' I ft:.z...-..-.... .. City Attorney .~. - -.. ,-. Ll U.' , . CITY OF SAN; BERNARDINO 300 NORTH "0" STREET. SAN BERNARDINO. CALIFORNIA 92418 JAMES F. PENMAN CITY ATTORNEY 17141384-1355 November 17, 1987 ". ~ [T1 C"> ,." ~ :2 ~ n .,:.l -- \ c:-") co :~ ..< ." ("> -~ r- r;., m ;u U'1 -.,-: Opinion No. 87-59 10.37 JAMES F. PENMAN City Attorney Re: Power of Council to Employ Outside Attorneys ISSUE Th~ issue has been raised as to whether the Mayor and Common C~cil may employ outside attorneys at pUblic expense to perform duties which the City Attorney would normally perform and which he stands ready, willing and able to discharge. ANALYSIS The duties of the City Attorney are set forth in Section 55(dl of the Charter of the City of San Bernardino. As last amended on April 13, 1971, this subsection reads as follows: "(dl The City Attorney shall be the chief legal officer of the City; he shall represent and advise the Mayor and Common Council and all City officers in all matters of law pertaining to their offices; he shall represent and appear for the City in all legal actions brought by or against the City, and prosecute violations of City ordinances, he shall also act and appear as attorney for any City officer or employee who is a party to any legal action in his official capacity; he shall attend meetings of the City Council, draft proposed ordinances and resolutions, give his advice or opinion in writing when requested to do so in writing by the Mayor or Common Councilor other City official upon any matter pertaining to municipal affairs; and otherwise to do and perform all services incident to his position and required by statute, this Charter or general law." ~ ~ James F. Penman November 17, 1987 Page Two It is important to note that throughout this section the mandatory "shall" is used. In addition, Section 241 of the Charter provides: "The Mayor and Common Council shall have power and authority to employ and engage such legal counsel and services and other assistants, as may be necessary and proper for the interest and benefit of the City and the inhabitants thereof." The question then becomes, what Charter sections to each other? as follows: is the relation of these two The general rule can be stated "Whatever duties are imposed on officers by law must be personally discharged by them and the City cannot relieve its officers from discharging their regular duties by contracting by ordinance or otherwise with other persons to perform part or all of them." (2 McQuillin, Municipal Corporations, 3d Ed. Rev., Section 10.38, pg. 840; see also 52 Cal.Jur.III "Public Officers, etc." Section 57 and House v. Los Anaeles Countv (1894) 104 C 73. 78.) Nationally, with reference to legal officers the cases are mixed. However, it seems very clear that the decisions turn on the individual charter or statute involved. "It has in numerous cases been decided that where the corporation has regular counsel, charged with the duty of conducting all the law business in which the corporation is interested, contracts for additional or extra legal services are unauthorized. This role has frequently been applied to the engagements of attorneys by municipal boards, commissions, departments, or officials, for the performance of services within the proper sphere of activity of the city attorney, or city law department." (10 McQuillin, Municipal CorDoratio~, 3d Ed. Rev., Section 29.12, pgs. 244-245.) ~ ~ James F. Penman November 17, 1987 Page Three In the case of Denman v. Webster(1903) 139 C 452, the California Supreme Court considered the claim for compensation for legal services provided by Attorney Denman allegedly on behalf of the San Francisco Board of Education. The underlying question involved which individual had a right to a seat on the Board. The Court concluded that the question as to who had a right to the seat was not a pUblic question but a private one and, as a result, the Board did not have the authority to use public funds to employ counsel for this purpose. Since the Charter of the City and County of San Francisco imposed on the City Attorney the obligation to represent the Board of Education, Justice Shaw, in a concurring opinion, stated: "If the law provides an attorney upon whom the board may call when a defense to any suit is necessary, it cannot ignore this provision and put the district to the expense of paying some other attorney for services which it is the duty of the attorney thus provided to perform." (at page 456) In Dadmore v. City of San Dieao (1908) 9 Cal.App. 549, the City, by ordinance, created the office of Special Prosecutor and appointed Attorney Dadmore to that position. After performing the specified duties, he sought payment and was refused. The court reviewed the charter provision in question which authorized the city council to "employ other attorneys to take charge of any such litigation, or to assist the city attorney therein." The court stated: " . . . under the charter of the City of San Diego the City Council cannot relieve a Charter officer of the city from the duties devolving upon him by the charter and designate another to perform such duties." (at page 551) The court concluded that the authority in the charter provlslon did not authorize the employment of outside counsel to perform prosecutorial duties. In ~~en County v. Shinn (1891) 88 C 510, the Supreme Court in considering an old statutory provision relating to the power of boards of supervisors in general law counties concluded that such boards have the authority to hire outside counsel. But even here the court noted that such authority rested upon the ground: ~ ~ James F. Penman November 17, 1987 Page Four " . . . that the district attorney may be incompetent, or sick, or absent from the county, or engaged in other business, so that he cannot attend to it, or the business to be transacted may be outside of the county." (at page 512) FOllowing action by the legislature in amending the subject provision relied upon in Lassen, the Supreme Court once again considered the issue in Merced Count v v. Cook (1898) 120 C 275: "There is no doubt that the enactment of this amendment [limiting the power of boards of supervisors to hire outside counsell was occasioned by the somewhat common and indiscriminate action indulged in by boards of supervisors of hiring outside attorneys to conduct county litigation. There can be no question but that the district attorney of the county is the officer authorized by law to take charge of and conduct such litigation. He is an officer of the county elected by the people for that purpose and no board of supervisors had (sic) the arbitrary power to displace him in the conduct of its litigation and substitute other attorneys. . . . If the board of superivsors could portion out the legal business of the county as . appertaining to license matters to outside attorneys, it could likewise apportion to such attorneys all other branches of legal business in which the county was directly interested, and thus relieve and deprive the district attorney of the very labors which are devolved upon him by the law, and which he was elected by the people to perform, and which under his oath of office he is bound to perform" (at page 277-278) In the case of M~~ri~m v. Barnum (1897) 116 C 619, the Supreme Court rejected an agreement to employ outside counsel to give legal advice to the Fresno County Board of Supervisors since the court concluded that such responsibilities were included within the duties of the District Attorney. In the case of Rafael v. ~~ (1916) 31 C.A. 623, the City Attorney of the City of San Francisco gave certain legal advice to the City's Civil Service Commission, which advice was ~ '"' James F. Penman November 17, 1987 Page Five ignored. Thereupon, the Commission was sued on the basis of those actions. The City Attorney offered to defend the suit but the offer was rejected and the Commission hired outside counsel. The court concluded that such employment was outside the authority of the Charter and therefore illegal. In Montaomerv v. Superior Cou~ (1975) 46 Ca1.App.3d 657 a general law city took action to relieve its contract city attorney of the responsibility of prosecuting certain other violations, with the attorney's concurrence. The court, in considering this question, concluded: "Several authorities hold that a public body may not validly . . . [employ outside personnel for special services] where a regular officer or employee thereof is obligated by law to perform such services (citations ommitted) and is willing and able to do so as part of the ordinary professional functions of his position (citations omitted). "Although this proscription applies to a chartered city whose charter imposes upon one of its regular city officers the duty to perform the services in question (citation omitted), it does not apply to preclude a general law city from employing special counsel to perform prosecutorial duties where it has divested its regular city attorney of such duties." (at page 668-669) When read in light of the foregoing law, the Charter provisions of the City of San Bernardino first quoted mean that the City Attorney of the City of San Bernardino has the responsibility and must provide all the legal responsibilities of the City. However, upon his request, the Mayor and Common Council may employ attorneys to assist him in that duty both in-house and outside. This may occur when there is more work than he can do, when the work is beyond his expertise (such as bond counsel), or when he is legally disqualified. But the Mayor and Council may not employ independent legal assistance when the City Attorney is ready, willing and able to provide the service. This rule has been codified in San Bernardino Municipal Code Chapter 2.20 although it is clearly the law even in the absence of this provision. Section 2.20.020 requires the City Attorney --' ~ James F. Penman November 17, 1987 Page Six to coordinate all legal services for the City. Section 2.20.030 requires all requests for legal servies to be directed to the City Attorney. Of special significance are the provisions of Sections 2.02.040 and 2.20.070. These sections set forth the procedures and conditions for the employment of special or outside counsel. Section 2.20.040 provides as follows: "Special counsel shall be retained by the Council pursuant to Charter Section 241 subject to the recommendation of the City Attorney that such counsel is necessary in instances when legal specialization not possessed by the City Attorney is required or when the City Attorney is unable or disqualified from performing such legal services. special counsel shall not be retained when the City Attorney is willing and able to perform the legal services as a part of the ordinary professional functions of his or her office. The City Attorney shall advise the Mayor and Common Council as to the experience and qualifications of attorneys considered for retention as special counsel." Section 2.20.070 states: "Any City officer desiring legal services concerning City business from legal counsel other than the City Attorney shall first inform the City Attorney of such intended request for outside legal services to determine whether the City Attorney is willing and able to provide such services. No City officer shall be authorized to obligate the City for payment of services of outside counsel without the express approval of the Council. No City officer shall utilize outside legal services concerning City business without the approval of the City Attorney or Council, provided, however, that nothing herein shall preclude any City officer from obtaining outside legal services at his or her own expense concerning the personal or public rights, duties, privileges or benefits of such officer as an individual or as an office holder, or from Obtaining at his or her own expense legal services of a private nature." -- - /) . , :" ../ ,~ BERNARDINO 300 NORTH "D" STREET, SAN BERNARDINO. CALIFORNIA Q241B JAMES F. PENMAN CITY ATTORNiY 17141384-15355 April 14, 1989 Opinion No. 89-11 10.39 TO: Donald Burnett Chief of Police RE: Power of Departments to Employ Outside Attorneys ISSUE The issue has been raised as to whether individual departments may employ outside attorneys at public expense to perform duties which the City Attorney would normally perform and which he stands ready, willing and able to discharge. CONCLUSION Neither individual departments nor the Mayor and Common Council on their behalf, may employ outside attorneys at public expense over the objection of the City Attorney to provide the services that he is ready, willing and able to provide and which is his duty as the elected City Attorney under the Charter of the City of San Bernardino to provide. ANALYSIS The duties of the City Attorney are set forth in Section 55(d) of the Charter of the City of San Bernardino. As last amended on November 8, 1988, this subsection reads as follows: "( d) The City Attorney shall be the chief legal officer of the City; he or she shall represent and advise the Mayor and Common Council and all City officers in all matters of law pertaining to their offices; he or she shall represent and appear for the 1 - -- Chief Burnett Opinion 89-11 April 14, 1989 City in all legal actions brought by or against the City, and prosecute violations of City ordinances, and may prosecute violations of state law which are misdemeanors or infractions and for which the City Attorney is specifically granted the power of enforcement by state law without approval of the District Attorney, or those violations which are drug or vice related; he or she shall also act and appear as attorney for any City officer or employee who is a party to any legal action in his or her official capacity; he or she shall attend meetings of the City Council, draft proposed ordinances and resolutions, give his or her advice or opinion in writing when requested to do so in writing by the Mayor or Common Councilor other City official upon any matter pertaining to municipal affairs; and otherwise to do and perform all services incident to his or her position and required by statute, this Charter or general law." It is important to note that throughout this section the mandatory "shall" is used. In addition, Section 241 of the Charter provides: "The Mayor and Common Council shall have power and authority to employ and engage such legal counsel and services and other assistants, as may be necessary and proper for the interest and benefit of the City and the inhabitants thereof." The question then becomes, what is the relation of these two Charter sections to each other? The general rule can be stated as follows: "Whatever duties are imposed on officers by law must be personally discharged by them and the city cannot relieve its officers from discharging their regular duties by contracting by ordinance or otherwise with other persons to perform part or all of them." (2 McQuillin, Municipal Corporations, 3d Ed. Rev., Section 10.38, pg. 1113; see also 52 Cal. Jur. III "Public Officers, etc." Section 57 and House v. Los Angeles County (1894) 104 C 73, 78.) Nationally, with reference to legal officers the cases are mixed. However, it seems very clear that the decisions turn on the individual charter or statute involved. 2 - -- Chief Burnett Opinion No. 89-11 April 14, 1989 "It has innumerous cases been decided that where the corporation has regular counsel, charged with the duty of conducting all the law business in which the corporation is interested, contracts for additional or extra legal services are unauthorized. This rule has frequently been applied to the engagements of attorneys by municipal boards, commissions, departments, or officials, for the performance of services within the proper sphere of activity of the city attorney, or city law department." (10 McQuillin, Municipal Corporations, 3d Ed. Rev., Section 29.12, pg. 245.) In the case of Denman v. Webster (1903) 139 C 452, the California Supreme Court considered the claim for compensation for legal services provided by Attorney Denman allegedly on behalf of the San Francisco Board of Education. The underlying question involved which individual had a right to a seat on the Board. The Court concluded that the question as to who had a right to the seat was not a public question but a private one and, as a result, the Board did not have the authority to use public funds to employ counsel for this purpose. Since the Charter of the City and County of San Francisco imposed on the City Attorney the obligation to represent the Board of Education, Justice Shaw, in his concurring opinion, stated: "If the law provides an attorney upon whom the board may call when a defense to any suit is necessary, it cannot ignore this provision and put the district to the expense of paying some other attorney for services which it is the duty of the attorney thus provided to perform." (at page 456) In Dadmore v. City of San Diego (1908) 9 Cal.App. 549, the City, by ordinance, created the office of Special Prosecutor and appointed Attorney Dadmore to that position. After performing the specified duties, he sought payment and was refused. The court reviewed the charter provision in question which authorized the city council to "employ other attorneys to take charge of any such litigation, or to assist the city attorney therein." The court stated: " . . . under the charter of the City of San Diego the City Council cannot relieve a Charter officer of the city from the duties devolving upon him by the charter and designate another to perform such duties." (at page 551) 3 ,,- - Chief Burnett Opinion No. 89-11 April 14, 1989 The court concluded that the authority in the charter provision did not authorize the employment of outside counsel to perform prosecutorial duties. In Lassen County v. Shinn (1891) 88 C 510, the Supreme Court in considering an old statutory provision relating to the power of boards of supervisors in general law counties concluded that such boards had the authority to hire outside counsel. But even here the court noted that such authority rested upon the ground: " . . . that the district attorney may be incompetent, or sick, or absent from the county, or engaged in other business, so that he cannot attend to it, or the business to be transacted may be outside of the county," (at page 512) Following action by the legislature in amending the subject provision relied upon in Lassen, the Supreme court once again considered the issue in Merced County v. Cook (1898) 120 C 275: "There is no doubt that the enactment of this amendment [limiting the power of boards of supervisors to hire outside counsel] was occasioned by the somewhat common and indiscriminate action indulged in by boards of supervisors of hiring outside attorneys to conduct county litigation. There can be no question but that the district attorney of the county is the officer authorized by law to take charge of and conduct such litigation. He is an officer of the county elected by the people for that purpose and no board of supervisors had (sic) the arbitrary power to displace him in the conduct of its litigation and substitute other attorneys. ... If the board of supervisors could portion out the legal business of the county as appertaining to license matters to outside attorneys, it could likewise apportion to such attorneys all other branches of legal business in which the county was directly interested, and thus relieve and deprive the district attorney of the very labors which are devolved upon him by the law, and which he was elected by the people to perform, and which under his oath of office he is bound to perform." (at page 277-278) In the case of Merriam v. Barnum (1897) 116 C 619, the Supreme Court rejected an agreement to employ outside counsel to 4 - - Chief Burnett Opinion No. 89-11 April 14, 1989 give legal advice to the Fresno County Board of Supervisors since the court concluded that such responsibilities were included within the duties of the District Attorney. In the case of Rafael v. Boyle (1916) 31 C.A. 623, the City Attorney of the City of San Francisco gave certain legal advice to the City's Civil Service Commission, which advice was ignored. Thereupon, the Commission was sued on the basis of those actions. The City Attorney offered to defend the suit but the offer was rejected and the Commission hired outside counsel. The court concluded that such employment was outside the authority of the Charter and therefore illegal. In Montgomery v. Superior Court (1975) 46 Cal.App.3d 657 a general law city took action to relieve its contract city attorney of the responsibility of prosecuting certain violations, with the attorney's concurrence. The court, in considering this question, concluded: "Several authorities hold that a public body may not validly. . [employ outside personnel for special services] where a regular officer or employee thereof is obligated by law to perform such services (citations omitted) and is willing and able to do so as part of the ordinary professional functions of his position (citations omitted). "Although this proscription applies to a chartered city whose charter imposes upon one of its regular city officers the duty to perform the services in question (citation omitted), it does not apply to preclude a general law city from employing special counsel to perform prosecutorial duties where it has divested its regular city attorney of such duties." (at page 668- 669) The Charter of the city of San Bernardino makes it clear that the power to authorize new positions and to establish the duties of officers is reserved to the Mayor and Council and may not be exercised independently by other city offices (Charter Sections 40(x), 181, and 241; see also 3 McQuillin, Municipal Corporations, 3d Ed. Rev., Section 12.127, pg. 481). When read in light of the foregoing law, the Charter provisions of the City of San Bernardino herein quoted mean that the City Attorney of the City of San Bernardino has the responsibility and must provide all the legal duties of the City. However, upon his request, the Mayor and Common Council may 5 --- - Chief Burnett Opinion No. 89- 11 April 14, 1989 employ attorneys to assist him in that duty both in-house and outside. This may occur when there is more work than he can do, when the work is beyond his expertise (such as bond counsel), or when he is legally disqualified. But the Mayor and Council may not employ nor authorize an individual department to employ independent legal assistance when the City Attorney is ready, willing and able to provide the service. This rule has been codified in San Bernardino Municipal Code Chapter 2.20 although it is clearly the law even in the absence of this provision. Section 2.20.020 requires the City Attorney to coordinate all legal services for the City. Section 2.20.030 requires all requests for legal services to be directed to the City Attorney. Of special significance are the provisions of Sections 2.02.040 and 2.20.070. These sections set forth the procedures and conditions for the employment of special or outside counsel. Section 2.20.040 provides as follows: "Special counsel shall be retained by the Council pursuant to Charter Section 241 subject to the recommendation of the City Attorney that such counsel is necessary in instances when legal specialization not possessed by the City Attorney is required or when the City Attorney is unable or disqualified from performing such legal services. Special counsel shall not be retained when the City Attorney is willing and able to perform the legal services as a part of the ordinary professional functions of his or her office. The City Attorney shall advise the Mayor and Common Council as to the experience and qualifications of attorneys considered for retention as special counsel." Section 2.20.070 states: "Any City officer desiring legal services concerning City business from legal counsel other than the City Attorney shall first inform the City Attorney of such intended request for outside legal services to determine whether the City Attorney is willing and able to provide such services. No City officer shall be authorized to obligate the City for payment of services of outside counsel without the express approval of the Council. No City officer shall utilize outside legal services concerning City business without the approval of the City Attorney or Council; provided, however, that nothing herein shall preclude any City officer from obtaining outside legal services at his or her own expense concerning the personal or public rights, 6 -- -. Chief Burnett Opinion 89- 11 April 14, 1989 duties, privileges or benefits of such officer as an individual or as an office hOlder, or from obtaining at his or her own expense legal services of a private nature." In addition to the clear legal prohibition outlined above, as a practical matter, if each city department sought to hire its own independent counsel not only would the cost soon become exorbitant but the efficiency of having one office with the ability to assign attorneys to tasks as needed would be lost. Respectfully submitted, BARLOW City Attorney Concur: (1~ 7)~ ~y Attorney AB:br cc: Mayor City Council City Clerk City Treasurer City Administrator Department Heads 7 - -.. James F. Penman November 17, 1987 Page Seven CONCLUSION The Mayor and Common Council may not employ outside attorneys at pUblic expense over the objection of the City Attorney to provide the services that he is ready, willing and able to provide and which is his duty as the elected City Attorney under the Charter of the City of San Bernardino. Respectfully submitted, / DENNIS A Sr. Asst. RLOW City Attorney DAB:cm cc: Mayor City Administrator City Clerk