Kenneth C. Scheidig
City Attorney
Concord, California
League of California Cities
1986 Spring Conference
Palm Springs, California
THE
CITY ATTORNEY FORM
OF GOVERNMENT
Prologue
When Allen Grimes was the City Attorney for Beverly
Hills he presented a paper at the 1976 Spring Conference
of the City Attorneys' Division on the topic - '' The Image
of The City Attorney. "
In this paper Allen bemoaned to
some degree, as only Allen could, the fact that City
Attorneys are becoming more involved in management deci­
sions and being distracted from the pursuit of the law.
This paper will develop what I believe to be the fact that
City Attorneys are involved in management decisions and
that is a proper role.
I have been advocating the City
The
Attorney Form of Government for some time now.
following will inform you why that is and what are our
responsibilities in shouldering this task.
The City
Attorney's noblesse oblige as it were.
The
Historical Perspective
The City Attorney Form of Government has been
evolving over a period of years in accordance with the
Darwinian principle of the survival of the strongest.
However, prior to its devel opment - which is still not
complete - other forms of government have prevailed - and
of course still exist - in the state.
The other forms of
government have been (1) the commission form of govern­
ment, (2) the elected Mayor-City Council form, and (3) the
A brief discussion of
City Council-City Manager form.
each of these will provide a historical backdrop for the
most recent development of California government - CAFOG.
The Commission Form of Government was the earliest of
The City of Sacramento, for example,
the species.
incorporated this form into its charter in 1863.
Under
this form the City Council is elected by the people and
they proceed to divide up the City administrative pie.
Each department of the City would have a Councilmember
overseeing its activities.
If the Councilmember did not
have the time to deal with the problems of his (there were
no hers then) department then he would appoint a depart­
ment head, either on his own or with the cooperation of
his cronies.
This form of government did not last far
into the twentieth century since by its very form it is
highly unweildly.
As government became more complex and
the demands for service grew the Commission Form of
Government was not in a position to respond.
The part­
time Councilmember couldn't run his business and his
department efficiently.
The Elected Mayor-City Council Form of Government was
another form that has existed for some time in some
It is a species that is most often found in the
cities.
larger cities - Los Angeles, San Diego, San Francisco,
It is also possible to find it in smaller
San Jose.
cities where a popular Councilmember who has been selected
by his/her colleagues to be Mayor for one year or two
decides s/he does not want to share the wealth any longer.
Depending on how popular s/he is with the populace then it
can come into existence for no better purpose than to
demonstrate that oneupsmanship is alive and well and will
be perpetuated into the future.
This governmental form,
however, is still purest in the larger cities where the
Mayor has veto powers and gets to act like the Governor or
the President.
In all cases, the system has been modified
to allow someone with competency in governmental adminis­
tration to handle the nuts and bolts of day to day work.
This latter individual is either called the Chief Execu­
tive Officer (or similar title) or City Manager.
The City Council-City Manager Form of Government is
According to the
the most common and well known form.
International City Manager's Association ( I CMA) it is the
only form of government that has steadily gained in popu­
The idea began in Staunton, Virginia
larity since 1937.
in 1908.
However, its popularity only really occurred in
1914 when Dayton, Ohio adopted the form and made it work.
As we know, under this form the City Council acts like the
Board of Directors of a large corporation.
They set
policy but leave the day-to-day administration to a
The City Manager
manager who tries to be Lee Iaccoca.
appoints the department heads - except the City Attorney in most cities.
HOW
THE
CAFOG EVOLVED
Prior to the late sixties it was relatively easy to
All one had to know was a little bit
be a City Attorney.
about the subdivision of land, a little about land use,
how a public works contract was awarded, a few procedural
rules from Roberts Rules of Order, and a smattering of
materials from the Constitutional Law course from law
school.
The City Attorney was someone to consult when
trouble arose but otherwise a professional who was like a
good child - he (except for Carlyn Galway there weren't
many female attorneys in those days) would speak only when
spoken to.
The role of the City Attorney began to change in 1963
The Act came about because the
with the Tort Claims Act.
All of a
cities lost their defense of sovereign immunity.
sudden the emperor had no clothes and something to protect
the southern hemisphere was needed.
Although there was no
understanding of the situation at the time the Tort Claims
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Act presaged the beginning of the CAFOG.
It was the
embryo because for the first time City Councils and staff
realized that they may have to consult the City Attorney
before undertaking a project or making a decision.
From this simple beginning the development was
nurtured by the Legislature, the public, the courts, and
by the City Councils for whom we work.
The following is a
sample of the fodder which has been provided to help CAFOG
grow since the late sixties to the present:
1.
Legislation
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
1.
m.
2.
Initiatives
a.
b.
c.
d.
3.
Labor Relations - Meyers-Milias-Brown Act
California Environmental Quality Act (and
its Implementing Guidelines)
Coastal Act
Subdivision Map Act revisions and
recodification
Planning Act revisions
State and Federal Clean Water Acts
Fair Labor Standards Act
Title VII
Affirmative Action
Fermit Streamlining Act
Vested Tentative Maps
Development Agreements
Police Officers Bill of Rights
Proposition 13 - Jarvis (property taxes)
Proposition 4
Gann (fees and surpluses)
Political Reform Act
Coastal Initiative.
Court
-
Decisions
a.
Friends nf Mammoth v. Board of Supervisors
of Mono County (1§72) 8 Cal. 3d 247, 104 Cal. Rptr. 761
Strumsk,y v. San Diego County Employees
b.
Retirement Assoc. (1974) 11 Cal. 3d 28, 112 Cal. LRptr
805.
Skelly v. California Personnel Board (1975)
c.
15 Cal.3d 194, 124 Cal. Rptr. 14
v.
836
d.
Topanga Association for a Scenic Community
(1974) 11 Cal.3d 506, 113 Cal. Rptr.
Angeles
Los
e.
Applying 42 USC 1983 and 1988 to cities
f.
The anti-trust cases
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4.
g.
Inverse cases
h.
Tort claim immunity demise
Local Legislation
a.
Hillside Development Ordinances
b.
Rent Control
c.
Child Care
d.
Arts
e.
O.ffsite Street Improvement Program. (OSIP)
f.
Newsrack Regulation
g.
Adult
tion
h.
Massage Parlors and Topless Entertainment
i.
Gas
and Reading Material Regula­
Theater
Station Liquor Sal-es
There is virtually nothing that a City does which
does not require the input and guidance of the City
Attorney.
The plethora o:f rules, cou-ct decisions, and
administrative regulations that govern our daily lives is
such that City Councils and staf� constantly seek advice
or look to the City Attorney for assistance to accomplish
For example, the consideration of a zoning matter
a task.
may involve any of the following:
conflict of interest,
inverse, 42 USC 1983, slander, CCP 1085 or 1094.5, and a
development agreement.
Also depending on how active and
innovative the City Council and staff may be the City
Attorney is often the individual who has to devise a
method to reach the goal that is sought.
The City
Attorney has become an integral part of the entire deci­
It is a recognition of the role of
sion making fabric.
the City Attorney as an important ingredient in the
management process that has been overlooked in the past
and which now gives rise to the CAFOG.
REASSESS ING IMAGE OF THE CITY ATTORNEY
The image of the City Attorney is an important one
that must be nurtured by us since we are the ones who
The paper by Allen Grimes that I mentioned
project it.
earlier is one which is worth reviewing for insight into
The strangest conclusion that
how others perceive us.
comes from Allen's paper is his compilation of impressions
of City Attorneys by Councilmembers and City Managers.
They have a far more perceptive view of the City
It
Attorney's impact and role than I often think we do.
is time for the City Attorneys to realize what we are and
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what we do for our clients.
1.
Equality:
In the majority of California cities
there are only two positions that are appointed by the
City Council - the City Attorney and the City Manager.
The City Attorney is independent so that s/he can advise
the Council and staff from a position that is not first
filtered by the City Manager.
The City Attorney and the
City Manager must act as a team because of their unique
positions of being Council employees.
2.
The Renaissance Person:
Unlike our colleagues
in the private sector, or other staff members within our
own organizations, the City Attorney must be a person
Political skills are
skilled in a variety of areas.
necessary for survival since we all work for politicians.
Negotiation skills are needed to deal not only with the
Council, the City Manager and staff (so that they see and
understand our point of view), but also in dealing with
the public.
Part of the negotiation skills is the ability
to psychoanalyze people to determine the best approach in
a given situation.
Knowledge of the law in a large
variety of areas:
anti-trust, contracts, labor law, land
use planning (including subdivisions), political law,
election law, Federal and State court procedures, et
The ability to listen carefully during meetings,
cetera.
especially Council meetings, in order to anticipate what
may occur and protect the City accordingly.
The ability
to speak, and write clearly and persuasively.
To create
An ability to
findings from whole cloth when none exist.
project the qualities exemplified in Rudyard Kipling's
poem " I f".
3.
The Policy Taboo:
One of the axioms of local
government is that Council makes policy and the City
The City
Attorney shall only advise as to the law.
Attorney, under this axiom, was like Dracula when
confronted with sunshine, a crucifix, or a mirror - we
were supposed to scream and go into hiding.
However, I
would contend that there is a fine line between making
policy and providing advice on the law.
For example, when
my Council wanted to pursue a child care ordinance to be
imposed on new development and I was asked "can we do this
and if so how?", which was policy and which was law?
If I
said "no you can't do it" - is that policy or law?
When I
said "yes and this is how", which was I engaging in?
I
think that it is fallacious to treat the two as distinct
events.
Under present circumstances what is policy and
what is merely law are intertwined like fingers so that
you can not really say where one begins and the other
It is important that City Attorneys and their
ends.
clients realize this relationship.
4.
The Court Ace In The Hole:
There is only one
department in the City that can go into court, other than
as a witness - the City Attorney.
Given the costs for
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litigating issues in either the Federal or State courts
this is a powerful factor in the City Attorney's favor.
Unfortunately many Council and staff members perceive the
City Attorney as always being a negative person and using
While the courtroom is
"going to court" as a threat.
always a reality, the City Attorney has a duty to attempt
to achieve his/her client's goal recognizing the possi­
bility of court action, and providing sufficient coverage
of the hindquarters if litigation is necessary.
This is also known as
They Really Do Like Us:
5.
Contrary to the perception of
the Sally Field syndrome.
most attorneys, City Attorneys are a different breed.
We
We ride the
are the ones wearing the white hats.
We stand for truth, justice and the American
palomino.
way (unless, of course you happen to be a developer).
Because we hear so many negative statements against
attorneys in general I think that we attribute these same
It is time to call a halt to such
remarks to ourselves.
Our abilities are amazing, as
negative thinking.
indicated in Number 2 , and this fact is recognized by
For example, Charlie Martin is the City Manager
Councils.
of some cities and the City Attorney of others; Bruce
Liedstrand was City Attorney of Mountain View before
becoming City Manager; the City Manager of Brisbane is an
attorney (though not a City Attorney); and finally, the
ultimate feat was accomplished by Dave Self when he was
both City Attorney and City Manager of Oakland for a
While it is not
period of approximately six months.
necessary for City Attorneys to take this drastic a step
and become City Managers the ability to do so is there.
In addition, the fact that attorneys are becoming City
Managers is a recognition, I think, of the importance that
someone with a legal background can bring to dealing with
City problems.
As the
Tact is the key word.
Noblesse Oblige:
6.
old saying goes "If you got it you don't necessarily have
If that is not an old saying it is now!
to flaunt it. "
It is not necessary or advisable that we all run up to our
Councils and/or City Managers and tell them that they are
What is needed is for the Council to
unnecessary.
occasionally be reminded, by some brilliant advice or
deed, of the important role that you play in the greater
It is important to remember
scheme of municipal life.
that there are other players in the game and that while
CAFOG exists it is not necessary to beat the other players
over the head with that fact.
CONCLUSION
This is the age of coming out of the closet - every­
City Attorneys should be taking pride in
one is doing it.
It is a recognition of our
the fact that CAFOG exists.
The fact that
development and role in the grander scheme.
we are intimately integrated into the decision making
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process is not something to despair but to savor .
Finally, since the City Attorney Form o£ Government is the
last form to evolve it is also the most perfect - as it
should be.
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