Tuesday, September 6, 2011

Who is the Client? n/k/a When I Want Your Opinion, I’ll Give It To You!

This post was originally published in February 2011.  The original post is at the bottom in italics.  Given recent developments, I thought I would update it.

We are about to have a new city attorney.  Mayor Bach is presumably looking far and wide for the right person for the job.  Unfortunately, there are very few people who can meet the job requirements: a solid working knowledge of Colorado municipal law; Colorado and federal hospital and healthcare law; Colorado and federal utilities law and regulatory requirements; and traffic codes to name only a few of the subject areas.  Furthermore, this person must also have proven management abilities, as the city attorney supervises a professional and support staff larger than nearly every private law firm in Colorado Springs, if not the State of Colorado.  However, I strongly suspect that most of these requirements will be sacrificed for the person who is willing to work under the revised title of this post.

The danger, quite simply, is that the person appointed will be one who will find ways to rationalize and support the mayor’s point of view, and to accommodate his preconceived conclusions.  If this person was solely concerned with city affairs such as police, fire and public works, that might not be a very big concern.  The mayor, afterall, was elected to lead municipal government.  He should be able to direct the future of that government.  It is a huge concern when one realizes the impact a “Yes-Man” in the city attorney’s chair can have over Colorado Springs Utilities and Memorial Hospital.  These are areas over which the mayor’s office has absolutely no say, either under the new charter or under the electoral ordinance governing the hospital. However, a compliant city attorney can provide a back door manipulation of these enterprises.

Recent comments and developments by Mayor Bach indicate he may well be aware of this possibility and possess a willingness to use it.  He has recently involved himself in at least one area where he has no authority.  The electoral ordinance under which Memorial Hospital operates clearly provides that the day to day operations of Memorial Hospital are under the supervision and control of the Board of Trustees; subject to the general supervision and control of City Council, which appoints the board of trustees.  Nowhere does the electoral ordinance mention the mayor’s office.  Yet in the past several weeks he has appointed himself as a “collaborator” with the City Council’s Task Force on the Hospital, and forced the inclusion of others who also have no apparent knowledge of the healthcare field.

Council should take steps now to assert its role as the check and balance for the mayor’s office:  the city budget discussions will soon be underway.  Council should expand the city auditor’s office to add an attorney, who answers solely through the auditor to Council to provide City Council with legal advice.  It should assert its position as the Board of Directors for Colorado Springs Utilities to appoint an attorney for the Utility Board.  It should see that the Memorial Hospital Board of Trustees also appoints its own attorney, who answers solely to the Trustees.  If the mayor objects, Council should stand its ground.  The city charter and code still provides that it is City Council, not the Mayor, who sets the salary and compensation of the city attorney and his/her staff by ordinance.  It’s not likely the mayor will find someone willing to work for free.

Legally, Colorado Springs Utilities does not exist.  Neither does Memorial Hospital nor, for that matter, even the city streets division.  Legally speaking, the only entity that exists is the City of Colorado Springs.  For decades, the city attorney has represented the City of Colorado Springs.  Although appointed by the city council, the city attorneys have long enjoyed the broad confidence and support of the mayor and council.  So much so, that they have been free to provide legal advice that has focused on what the law is, and what is in the best interests of the city, and not any particular individual.  This independence has worked to the city’s advantage.  Over the past ten to fifteen years, Patricia Kelly has been the City attorney and has hired and maintained an outstanding staff.  (Just ask Doug Bruce what his winning record is against the city.)  (Hint: it’s almost an O-fer.) 

All this is about to change.  Coming in June, the new mayor will appoint a city attorney, who will serve at his pleasure alone.  By implication, all of the attorneys working in the city attorney’s office will be serving at the mayor’s pleasure.  The city attorney will then be forced to resolve an issue:  Who is the client?  The City of Colorado Springs, or the mayor, who holds the paycheck in his hands?  The consequences for the type of representation is huge and is likely to shift radically.  No longer will the city attorney be focused on what is in the city’s best interests, but on how to advance the mayor’s agenda.  If the mayor’s wife gets a speeding ticket, how does the attorney’s office proceed?  Louis XIV reportedly said: “I am the State.”  As Colorado Springs moves towards a strong mayor form of government, will the mayor be able to distinguish himself from the city he serves?


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