Saturday, September 13, 2014

Independent Legal Representation for the Council

The Council Governance Committee is hosting a policy discussion lunch on Monday, September 15, at Los Hermanos (71 E. Center St.) from noon to 1:00 PM. Gary Garrett and Dave Sewell will be joined by Mayor Curtis for a discussion about the proposed committee recommendation concerning independent legal representation for the Council. As time permits, other policy issues or items from Tuesday’s Council meeting may be discussed.

Council Member Dave Sewell summed up his thoughts on the recommendation in his recent blog post:

Provo is one of a handful of cities in Utah that has a Mayor-Council form of government – with a true separation of powers between the executive (Mayor) and legislative (City Council) branches.  The Council’s Governance Committee, which Gary Garrett and I serve on, has recently been asked to examine whether the City Council should have its own independent legal representation.
Smaller cities tend to rely nearly exclusively on the city attorney’s office for services to both the executive and legislative branches.  In these cases, the “client” of the city attorney’s office is the city, which includes both branches of government.  However, when the interests or priorities of the two branches differ, this can lead to challenges, as outlined in this article.
At the other end of the spectrum, larger entities (federal and state governments) almost always have separate legal representation for the executive and legislative branches.  Some larger cities do also.
Advantages to separate representation for the Council go beyond conflict of interest situations.  On some important issues it can be advantageous to get a second legal opinion or to utilize specialized expertise not available to the same degree in the city attorney’s office.  However, hiring full-time independent representation for the Council would be costly and might not efficiently utilize the resources available in the city attorney’s office.
Ogden’s City Council has relied heavily on independent legal counsel in the past, during a time when relations between the Council and Mayor were not good.  When the relationship improved, they utilized independent counsel infrequently.  Salt Lake’s Council has utilized independent legal representation for specific needs for many years – sometimes on a full-time basis and more recently on a smaller scale retainer basis.  In both cities, the model has been to rely on the city attorney’s office for most things.  Independent counsel has been utilized as needed – to resolve conflicts, due to differences in priorities, or simply to utilize special expertise needed by the Council.
For many years Provo had a full-time attorney that reported directly to the City Council.  During this time period, the Council attorney “did it all” for the Council without much reliance on the city attorney’s office.  About four years ago, when this attorney left to work for the Salt Lake Council, it was decided to have the Council rely on the city attorney’s office rather than hiring its own attorney again.  This decision saved significant tax dollars but also had some disadvantages in that the Council has not had a mechanism to easily access independent legal representation since that time.
We aim for the best of both worlds – blending the advantages of independent counsel with the tax dollar efficiency of relying primarily on our excellent city attorney’s staff.  We recommend that we:
  • Publicly express appreciation for our excellent city attorney staff, especially Brian Jones.
  • Get to know our city attorney staff better and give priority to utilizing that collective resource.
  • Allocate $10,000 for independent Council legal representation.
    • Would initially come from funds in already budgeted Council accounts.
    • Allocate additional funds if and when needed.
    • Next year allocate a larger amount in the Council budget, rolling over unused funds.
  • Develop a list of approved counsel with a procedure for adding names.  Perhaps like this:
    • Name recommended by Governance Committee and approved by Chair  OR
    • Majority vote of Council
  • Any Council member could access independent counsel on the list, up to $1,000 annually.
    • Two or three Council members could work together and pool their allocation.
    • Majority Council vote required for projects larger than the above

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