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CITY OF SAN BERNARDINO - REQUEST FOR C,QUNCIL ACTION
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Jm: Councilman Ralph Hernandez. Third Ward
Subject:
Hiring of Outside Counsel
)ept: Council Office
>ate: May 18, 1994
.vnopsis of Previous Council Action:
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,commended Motion:
To discuss and take action to hire outside Counsel to cha1Ienge, in Coun, Section SS of the City Charter
penaining to the City Attorney representation of the Mayor and Council and all City officers.
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,tect P..on: CnunciJrnAn RaJDb HemandP.7
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NDlNG REQUIREMENTS: Amount:
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Agendllltem No.
TO:
The Mayor and Common Council
FROM:
Dennis A. Barlow, Sr. Asst. City Attorney
DATE:
May 23, 1994
RE:
Employment of Outside Counsel
The issue of employing outside counsel to perform services
that would normally be the responsibility of the City Attorney is
a long-settled area of law (see Opinions of the City Attorney Nos.
89-11 and 87-36, and 87-59).
The responsibilities of the City Attorney are outlined in
Section 55 of the Charter and with reference to this issue
specifically subsection (d).
A leading treatise in this area states the general rule:
"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)
And specifically with reference to attorneys:
"According to authority, where the [municipal]
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 wi thin the proper sphere of
activity of the city attorney, or city law department."
(10 McQuillin, Municipal Corporations, 3d Ed.Rev.,
Section 29.12, pg. 304)
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. Since the Charter of the
City and County of San Francisco imposed on the City Attorney the
DAB/j. [coun.el.MemJ~/~ :7"-2~ -J'~ #.;?-3
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To: The Mayor and Common Council
RE: Employment of OUtside Counsel
Page 2
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 the 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
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 relief 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
[limi ting 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
DAB/js [Counsel.Hem]
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To:
RE:
Page
The Mayor and Common Council
Employment of Outside Counsel
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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 give legal
advice to the Fresno County Board of Supervisors since the court
concluded that such responsibilities were included wi thin 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.
When read in light of the foregoing law, the Charter
provisions of the City of San Bernardino herein referenced mean
that the City Attorney of the City of San Bernardino haa the
responsibility and must provide all the legal duties of the City.
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.
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DENNIS A. ARLOW
DAB/js lCounsel.MemJ