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Posted By: Professor Patricia E. Salkin
Most municipalities across the country are small and cannot afford separately retained legal counsel for its legislative body and all of its various boards, commissions and departments. While best practices might dictate separate and specialized legal counsel for the executive and legislative branches of municipal governments, as well as for the planning and zoning boards (where a disproportionate amount of municipal litigation occurs), the reality is that only the larger city and suburban towns routinely operate this way. There are no doubt, however, instances where the interests of two or more entities within the same municipality are in conflict, and in these cases, it is clear that each entity is entitled to its own independent legal counsel. Numerous state bar association opinions speak to this issue (e.g., when the zoning board is being sued by the legislative body). Recently, the Maine Supreme Court had occasion to address the issue of whether it is a violation of the Rules of Professional Conduct for a town attorney to represent the town in litigation stemming from advice the attorney gave to the zoning board of appeals. The facts are as follows:
On the advice of legal counsel, the Zoning Board of Appeals of the Town of Westport Island refused to grant standing to residents wishing to challenge the planning board’s approval a permit requested by the Town Board to make improvements to the public boat-launching site. Residents opposed to the issued permit argued, among other things, that the Town Attorney should be barred from representing the Town in litigation over the standing issue since he served as an advocate and legal advisor to the zoning board on the same matter.
The Court concluded that while the Maine Bar Rules do prohibit attorneys from serving certain dual roles, in this case the representation was not in conflict. Specifically, Rule 3.4(g)(2)(i) states:
A lawyer shall not commence representation is a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk. A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a nonjudicial adjudicative officer, arbitrator…or law clerk to such a person, unless all parties to the proceeding give informed consent.
The Court explained that since the zoning board is a branch of the Town, the attorney was simply doing his job as the Town’s legal representative when he advised the zoning board on the standing issue. The Court said that the attorney did not act in a judicial or quasi-judicial capacity and hence the Bar Rule was not implicated here and the motion to disqualify was properly denied.
Nergaard v. Town of Wesport Island, 2009 WL 1522707 (Me. 6/2/2009).
Posted By: Professor Patricia E. Salkin
The fact that personal vendettas have no place in City Hall was reiterated in a recent Sixth Circuit Court of Appeals decision finding that the Mayor acted with malice intent and violated the substantive due process rights of a resident. Both the City and the Mayor, in his official and personal capacities, were held liable to the Plaintiff for compensatory and punitive damages as well as for attorneys’ fees. The facts and summary of the opinion are as follows:
Joseph Dorr purchased a home next to Larry Salisbury, who was later elected Mayor of the City of Escorse. Dorr’s home was a 90-year old building in need of repair and was considered a legal nonconforming use. He obtained approvals and permit from the City to make significant repairs and improvements to bring the home up to code. Following completion of the repairs, Dorr received a certificate of occupancy from the City and he received a beautification award from a local civic association in recognition of the considerable work he did on the dwelling. Unfortunately, from the beginning, Dorr and Salisbury had a contentious relationship with Salisbury having sued Dorr for alleged zoning violations. The court tossed the lawsuit as frivolous and ordered Salisbury to pay actual damages and expenses to Dorr, including attorneys’ fees.
Dorr subsequently applied for and received a permit to construct a garage extension, and obtained approval from the City on his final garage inspection. Dorr decided to sell the home, entering into a purchase agreement. Pursuant to City ordinances, he was required to obtain a new certificate of occupancy and undergo standard building code inspections. Around this time, Salisbury was elected Mayor. Despite having passed all of the necessary inspections, Dorr was denied a certificate of occupancy both administratively and from the zoning board of appeals. Although Dorr then obtained a court order form the Circuit Court compelling the City to issue the certificate of occupancy, the City refused to issue the certificate. This precluded Dorr from selling his home.
Dorr sued the City and Salisbury, in his official and individual capacity, alleging they violated his substantive due process rights by unlawfully denying him a certificate of occupancy which prevented him from selling his property. Following a jury trial that found Dorr’s due process rights were violated, Dorr was awarded compensatory and punitive damages. The City and Salisbury appealed.
In upholding the decision of the District Court, the Sixth Circuit Court of Appeals found that Dorr did have a vested property interest in the certificate of occupancy. The Court noted that he had a valid building permit and in reliance thereon he completed substantive work on the property which passed all relevant building code inspections. Further, the Court acknowledged he has an order from the Circuit Court compelling the City to issue the permit. The Court also found that Dorr submitted evidence demonstrating that once Salisbury was elected Mayor, he changed the way the city enforced its zoning code. For Salisbury to be held liable under Section 1983, Dorr met the required showing that Salisbury possessed power by virtue of state law and that he misused that power in a way that violated Dorr’s constitutional rights. Dorr presented evidence demonstrating that when Salisbury was elected, he retaliated against building inspectors who had granted permits to Dorr. Further, Dorr proved that Salisbury knew the reasons being used by the building department to withhold the certificate of occupancy were the same ones deemed frivolous and intended to harass Dorr in Salisbury’s earlier lawsuit against Dorr. The Court found sufficient evidence to establish that Salisbury acted under color of state law, and that it was clearly foreseeable that Dorr would suffer damages as a result of the City and Salisbury’s refusal to issue the certificate of occupancy.
With respect to punitive damages the Court held that there was sufficient evidence presented to the jury from which they could infer malicious intent. Specifically, Dorr presented evidence that Salisbury terminated inspectors who approved permits for Dorr, and ended City contracts with firms that resisted Salisbury’s new policy of strict enforcement. The Court also noted that Salisbury testified that he was aware that the City’s building department was using the same grounds to deny Dorr a certificate of occupancy that the State Court of Appeals had held were frivolous and brought to “injure or harass” Dorr. Lastly, the Circuit Court upheld the award of attorneys’ fees as reasonable.
Dorr v. City of Escorse, 2008 WL 5397760 (C.A. 6 (Mich) 12/29/2008).
The opinion can be accessed at:
http://www.ca6.uscourts.gov/opinions.pdf/08a0788n-06.pdf
On Wednesday of this week, the California Supreme Court heard oral arguments in Morongo Band of Mission Indians v. State Water Resources Control Board, addressing the question of whether a staff attorney for an administrative agency may serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter without violating the due process rights of parties that appear before the agency.
If the Supreme Court agrees with the courts below that such conduct presents either real bias or the appearance of bias, it could have far-reaching impacts for state and local government lawyers. After all, it is quite common for full-time government lawyers to serve the agency in a variety of capacities including prosecuting violators and providing advice to the regulated communities and to the agency. The 2007 decision of a divided panel of the 3rd District Court of Appeal held it is a due process violation under the California Administrative Procedures Act to wear two hats. In the case at bar, the agency attorney was working on a matter to revoke a water rights license held by the Morongo Band of Mission Indians while at the same time advising the State Water Resources Board on a separate matter concerning flows on the American River.
Advocates have asserted that legal work on behalf of governments, especially in small agencies and small municipalities, could come to a screeching halt with a lack of personnel and a lack of resources to hire more personnel or outside counsel to separate the functions of lawyers who serve as prosecutor and as legal advisers.
This case attracted a number of amicus curiae briefs including a brief submitted by the California League of Cities and the California State Association of Counties.
The letter to the Supreme Court from the California League of Cities urging the Court to consider the matter and setting forth the interests of California municipalities here.
Read about the oral argument here
Stay tuned. A decision is expected in about 90 days.
Posted by: Warren Kraft, Assistant City Attorney/’HR Director, West Bend, Wisconsin
The column’s headline, from the current issue of Phi Alpha Delta’s “The Reporter” jumps out at me – “What Will Be Your Legacy?” It is a question that we pose to adult scout leaders who participate in an advance leadership training course. The question formed the basis for a reflective conversation with a friend as my one year “retirement” anniversary from the Oshkosh WI city attorney’s office came and went.
In his column about the Municipal Attorney List-serv, Dallas assistant city attorney Don Knight chronicled my personal and professional journeys. As part of the changing political winds in that community, I found myself the target of several unflattering columns by the local newspaper’s executive editor. And so, I was moved out, and I moved on. One of my former co-workers summarized my year of change by saying that while the door to Oshkosh city hall closed behind me that fateful October 2007 day, so many other, just-as-rewarding doors opened up to me. Meanwhile, the executive editor still writes his weekly columns criticial of local government officials, even those council members that his newspaper endorsed for election.
As collegiate journalism students in the early 1970s, we were taught to maintain scrapbooks of our published efforts that we wanted future employers to consider with our applications. I may still have a few of them stashed in the back of the garage attic unless the mice used portions for nesting materials.
So, I wondered to my reflective friend what would my scrapbook look like from these past 12 or so months, compared to what the executive editor could put into his. Though I left the public sector, my “retirement” was anything but private. Whereas his published works would show the same monotonous themes, what would I be able to show my grandchildren?
It would surely include a local newspaper clipping (yes, from THAT local newspaper) of a picture from last summer. One of “my” scouts standing arm in arm with me in the Bridger-Teton National Forest, outside Jackson WY, as part of a national scouting service project to build hiking and biking trails for the US Forest Service. Perhaps, a few scenes from lifeguard instructional classes at the local YMCA last spring, or the swim meets that I continue to annouce. Maybe some of the pictures when “we” installed a new pastor at a church I was assisting. Even a few choice phrases from some of the associates at the Madison WI law firm, where I am now “of counsel” after a summer fulltime stint so I can work fulltime in the public sector again in another community.
Legacy.
Rhona Hill, International Justice of Phi Alpha Delta, asked in her column what positive impact P.A.D. members would have in each stage of their lives as they closed one chapter and moved to the next. She writes about three fundamental principles, that are “indispensible ingredients of the character of the true lawyer.”
“INTEGRITY. Adherence to moral principl and character; honesty, honoor in one’s beliefs and actions. (her emphasis)
“COMPASSION. Deep sympathy and sorrow for another who is stricken by suffering or misfortune, accompanied by a stong desire to alleviate the pain or move its cuase.
“COURAGE. The quiality of mind or spirit that enable us to face difficulty, danger and pain, with firmness and without fear.”
Aren’t these some of the attributes that we seek in our friendships, in our personal relationships?
Bill Kearns moderates the Municipal Attorney Water Cooler using rules of conduct embodied in three words: civility, collegiality and courtesy. You can see those attributes played out as we support each other through personal and professional challenges, as friends sharing a common bond.
Would we need standing committees in our bar associations focused solely on encouraging our colleagues to practice these principles?
We teach our scouts “Leave No Trace” principles, in effect, leave the place in better condition than when you found it. Sometime our efforts fall a bit short, but we keep encouraging positive impacts.
IMLA names several of its more significant recognitions, awarded to deserving and oftentimes humbled municipal attorneys, after venerable people. Those individuals, who themselves, leading by principle, attribute and example, form our legacy of public service and commitment. Log in to the Municipal Attorney List and the Water Cooler to witness the continuation of those who have gone before us.
Surely every walk of life has its lunkerheads, but, at a time of the calendar when many people ponder the past, the present and the future, perhaps the operative question for each of us is:
What is in YOUR scrapbook?
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