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No Comments [ Add Comment ]City council needs independent legal advice
By DEBORAH BADGERThanks to the Standard-Examiner for its informative article describing how the Ogden City Council gets legal advice ("Use of private law firm by Ogden City Council irks Godfrey", Aug. 17 news story).
The article makes it clear that Mayor Matthew Godfrey understands neither the ethical obligations of attorneys nor the separation of powers between the legislative and executive branches of government.
All attorneys are bound by a strict conflict-of-interest rule that prohibits giving legal advice to two potentially opposing parties. Any Utah attorney who violates this rule is subject to sanction by the Utah State Bar.
Municipal attorneys therefore walk a very fine line whenever there is a potential disagreement between their two clients, the executive and legislative branches. Once they have given advice on a particular issue to one side, they cannot give advice on that issue to the other side. Furthermore, because the mayor has the power to remove the city attorney from office at any time, the city attorney's primary client is the mayor, not the city council.
City Attorney Gary Williams clearly recognizes this conflict of interest. He correctly told the Standard-Examiner that there are times when the council should go elsewhere for legal advice.
Some city councils go much further, employing their own staff attorney to provide legal advice on a day-to-day basis, and not relying on the mayor's attorney at all.
If you think about it, this makes perfect sense. The city council is the legislative branch of municipal government, analogous to the state legislature or Congress. As such, the council's main job is to draft, debate and pass legislation. An attorney should always be involved in drafting legislation, to ensure that the legislation is constitutional and consistent with other local and state laws.
I find it remarkable that the Ogden City Council routinely uses the mayor's attorney for this purpose, only rarely asking for independent legal advice. While sharing an attorney may be common in smaller municipalities, it is hardly necessary in a city that already employs several staff attorneys. Why not move one of these positions and its funding to the city council, so the council can obtain truly independent legal advice?
When a city council relies on its mayor's attorney for legal advice, that mayor can watch the council's every move as it considers what ordinances to pass, and take early action to support or oppose those ordinances. If a city attorney is drafting an ordinance for the council and the mayor thinks this ordinance is ill-advised, the mayor could ask the attorney to put obscure loopholes into it. Such a request would create an irreconcilable conflict of interest for the attorney.
Can you imagine if our federal government operated in the same way? Suppose that Congress employed no attorneys of its own, but rather went to the attorney general for help in drafting every piece of legislation it considers. This would give the president enormous control over what legislation comes before Congress.
While it's understandable that Mayor Godfrey might want this kind of control over the Ogden City Council, such a system is antithetical to the American doctrine of separation of powers.
Badger has a private law practice in Ogden. In the past she has worked as an attorney for Roy, Pleasant View and Riverdale.
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