Harbor Area Attorney Noel Weiss Explains Why
As Los Angeles goes through the first charter reform process in more than a quarter century, a wealth of ideas have been considered and forwarded to the City Council for consideration to place on the ballot this November. But an even wider wealth of ideas have been proposed, reflecting a broad sense that much more needs to be done. The Charter Reform Commission itself has set forth a list of four areas that need to be addressed in the future, including “Reforming the city’s commission system.” But some additional reforms ought to be considered now, and one of them involves the city attorney’s office.
The commission proposes dividing the city attorney’s office in two, with an elected city prosecutor, handling criminal matters, and an appointed city attorney handling everything else. LA Forward, which has been deeply involved in the reform process, wants to go farther, splitting the office into three. The first would have a criminal branch along with a public rights branch, bringing public rights civil enforcement actions in the name of the people, a model followed by the City of Long Beach.
Second is an appointed corporation counselor, a model of used by most major cities outside California, which would have three branches, as described by LA Forward deputy director, Godfrey Blata:
“A municipal branch giving legal guidance to the municipal government, a civil litigation branch which manages the majority of claims and lawsuits for the city’s defendant and a real estate branch which advises elected official staff and non-proprietary departments on matters involving land use planning and estate and housing.”
Third, Blata said, is “a legislative council like peer cities in New York, Chicago and Seattle, responsible for drafting legislation and advising you all as council.”
This more sophisticated approach seems better suited to the variety of needs the city faces, and benefits from the existence of models showing how its different parts would work. But Harbor Area attorney Noel Weiss has suggested a number of other reforms, addressing problems such as conflicts of interest between different municipal bodies, which has long been a problem locally when the interests of the Port of LA and the people in the surrounding communities are directly in conflict.
Weiss highlighted, “the conflict of interest of the City Attorney borne out of the dual representation of the conflicting interests of a Charter Agency (DWP, Ports, Airports) and the City Counsel,” noting that “The Mayor has her own attorney. Now why do you think that is? Because the Mayor needs legal advice which is not diluted or polluted with politics. You would not have one attorney represent you and someone with whom you were in economic conflict – Neither should the City, or Charter Agencies.”
As a classic example, Weiss said, “Think ‘Palisades Fires’ (and DWP vs. LAFD) in the allocation of negligence liability to the people injured and whose property was destroyed or damaged as between the two agencies. Before the fires, the City Attorney had a theoretical conflict of interest in her dual representation of both DWP and LAFD (and the City Council). Now that conflict of interest is actual. [And it’s] impeding the ability of the City to get the negligence claims paid; the homes rebuilt, and the infrastructure of Pacific Palisades repaired. These involved complex (not necessarily complicated – just detailed) negotiations over the allocation of the risk of loss.”
Stating the obvious, Weiss noted, “This cannot be done when there is just one civil (City) Attorney representing all sides. No individual would tolerate this in their private lives. We should not tolerate it when it comes to governmental operations.”
Bifurcation, or even trifurcation, is not enough to solve this problem. Reformers “need to go the extra ten miles here and seriously debate and discuss whether the City Attorney’s office should be representing both the independent charter agencies, and the City of Los Angeles.” There needs to be a provision that “the City Attorney may not represent these charter agencies at the same time the City Attorney represents the City, any City Agency, or any City Official. Period, end of story,” Weiss said. One possibility would be that “Commissions and the Charter Agencies can be given the option of hiring their own independent counsel to render legal advice on specified matters.”
Weiss also advised going further than LA Forward’s idea for a legislative council, adding the responsibility to “issue written, formal public legal opinions on matters of general legal interest to the people, as per the request of any City Official, similar to the power exercised by the State Attorney General.” The key point, Weiss said “is that the LA City Attorney should be positioned to issue opinions on request of Councilmembers and City elected Officers. This could and should be built into the Charter.”
Finally, Weiss argues, there is “the really important need for there to be a Deputy City Attorney placed in each Council office (at the cost of each Councilmember) to provide legal advice ‘on the spot’ with regard to constituent issues. This position could be sanctioned (authorized – encouraged) in the Charter itself. Thereby rendering it a very prestigious position within the City governmental framework.” He noted that the mayor has her own lawyer, and added that the City Controller should also have their own lawyer as well.
“The core goal,” Weiss said is “responsiveness to the needs of the people. The legal issues are not always black and white, and even where a stark color contrast does appear, we get obfuscation in the form of ‘political advice’ being rendered in the form of compromised ‘legal advice,’ compromised because of the conflict of interests that exist.”