By Michael Reiter, Attorney at Law
Jeff Thurman of San Bernardino asked me this question on my Facebook page, and I told him on Facebook I would write about here at the blog:
“Would be interested in your take on CA City Attorney Code of Ethics regarding Mr. Penman’s activities in the last election.”
I do not know Jeff Thurman, I only know that he posted this on Gigi Hanna’s campaign website, which I had seen before today:
“Jeff Thurman I campaigned for David McKenna – if you’d like my help, please contact me.”
Here is some Background for people unfamiliar with the context of this election: San Bernardino, a charter city in Southern California, had a primary election in November 2011. David McKenna was a candidate for City Attorney in November 2011. The incumbent, James F. Penman, won reelection. Gigi Hanna is a candidate for City Clerk in the San Bernardino City General Election in 2012, after having been one of the top two candidates in 2011. Amelia Sanchez Lopez was the top vote getter in the City Clerk’s race, and in the primary election, she shared elections signs with City Attorney James Penman. City Attorney Jim Penman was first elected in 1987 and has been elected every four years since; he defeated City Attorney Ralph Prince, who first won election in 1959. City Attorney Jim Penman’s opponents say that he is a polarizing figure, and have accused him of a variety of ills, including a lack of professionalism, including numerous ethics complaints to the State Bar of California over a number of years. However, he has no public record of discipline by the State Bar of California
This blog is neutral politically, my only loyalty is to my clients, and I do not currently represent the City of San Bernardino, nor have I since January 2, 2006.
Mr. Thurman is asking about is not the California Rules of Professional Conduct or the California Business and Professions Code’s mandatory ethics rules and duties that each attorney in California must follow. His reference of “CA City Attorney Code of Ethics” is to a document properly called “Ethical Principals for City Attorneys” adopted on October 6, 2005 by the League of California Cities City Attorneys Department Business Section, and I believe (since I was at the conference as Assistant City Attorney for the City of Redlands, but I could find no citation) ratified by the City Attorney Section of the League of California Cities by a voice vote in May 2006.
There is some misunderstanding about this document, particularly in San Bernardino, and what it means. First, the League of California Cities is not a governmental entity. According to the League itself, the “League of California Cities is an association of California city officials who work together to enhance their knowledge and skills, exchange information, and combine resources so that they may influence policy decisions that affect cities.”
The League does wonderful work, particularly with its conferences. I have attended a few League functions, and they are very educational. I have been both to a League of California Cities Spring City Attorney’s Conference and the Annual Conference. I was also the City of Redlands’ staff member for the League of California Cities, Inland Empire Division, Legislative Task Force for a period of time as Assistant City Attorney for the City of Redlands. I also contributed to the League’s California Municipal Law Handbook by reviewing a section during my time in Redlands (the book is now published by CEB).
However, its injection into San Bernardino politics, is a red herring, for a few reasons to be discussed later.
Here is the preamble: of the Ethical Principles for City Attorneys:
Preamble
A city attorney occupies an important position of trust and responsibility within city government. Central to that trust is an expectation and commitment that city attorneys will hold themselves to the highest ethical standards. Every effort should be made to earn the trust and respect of those advised, as well as the community served.
The City Attorneys Department of the League of California Cities has therefore adopted these ethical principles to:
- Serve as an aspirational guide to city attorneys in making decisions in difficult situations,
- Provide guidance to clients and the public on the ethical standards to which city attorneys aspire, and
- Promote integrity of the city and city attorney office.
City attorneys are also subject to the State Bar’s Rules of Professional Conduct. For an explanation of how the rules apply to city attorneys, please see Practicing Ethics published by the League of California Cities in 2004, available at www.cacities.org/attorneys. These aspirational ethical principles are not an effort to duplicate or interpret the State Bar’s requirements or create additional regulatory standards.
The role of the city attorney and the client city varies. Some city attorneys are full-time public employees appointed by a city council; some are members of a private law firm, who serve under contract at the pleasure of a city council. A few are directly elected by the voters; some are governed by a charter. When reflecting on the following principles, the city attorney should take these variations into account.
The city attorney should be mindful of his or her unique role in public service and take steps to ensure his or her words and deeds will assist in furthering the underlying intent of these principles.
Note the statement that these principles are “aspirational ethical principles.” Note also that the “role of the city attorney and the client city varies.” That is certainly the case in the relatively few cities in California which are elected City Attorneys. There are 11, and the link to the left tells you they are San Francisco, San Diego, Los Angeles, Compton, Huntington Beach, Oakland, San Bernardino, Long Beach, San Rafael and Chula Vista.
The preamble continues a “few are directly elected by the voters” which is a grudging nod to the peculiar institution of the elected city attorney in California.
To better understand what Mr. Thurman is talking about, former City Attorney candidate Marianne Milligan alleged, both in 2007 when she was running to be City Attorney and 2011 in an opinion piece in the Sun on August 25, 2011 that City Attorney James F. Penman, provided in part (I don’t have access to the full version, and this is only part of the version that is available elsewhere on the web):
It is important that we, the voters, understand that city attorneys in California are expected to abide by ethical principles adopted by the City Attorneys Department of the League of California Cities.
This universally adopted Code of Ethics states: There should be “no politicization” of the office of city attorney and more specifically states “the city attorney or persons seeking to become city attorney should not make campaign contributions to or participate in campaigns of that city’s officials.”
Marianne Milligan was my immediate supervisor at the time that I transitioned from a Deputy City Attorney in San Bernardino to become the Assistant City Attorney for the City of Redlands, and before that we were briefly Deputy City Attorneys together in San Bernardino (though she was of higher rank). In that time, and since, I never had any problems with her either as a boss or as a coworker. We last spoke when she was leaving Code Enforcement in 2010 and I believe that we are on good terms though we haven’t spoken since 2010.
I think that it is unfair to categorize a document which purports to be “aspirational ethical principles” and designed for the vast majority of city attorneys that are either in-house and appointed or are outside contract attorneys as “universally adopted.”
The “aspirational ethical principles” fail to take into consideration the needs of the eleven elected City Attorneys in California. And the basic fact is that an elected official inherently is involved in politics because they are elected. It is also incorrect to say that city attorneys in California are expected to abide by the principles; the use of the passive voice is no doubt intentional, even the preamble says that the “aspirational ethical principles are not an effort to duplicate or interpret the State Bar’s requirements or create additional regulatory standards.”
Here is the politicization principle: from the aspirational principles:
Principle 3 (No Politicization). The city attorney should provide legal advice in a manner that avoids the appearance that the advice is based on political alignment or partisanship, which can undermine client trust.
Explanation. The city attorney and the city attorney’s advice needs to be trusted as impartial by the entire council, staff and community.
Examples
1. The city attorney should provide consistent advice with the city’s overall legal interests in mind to all members of the city team regardless of their individual views on the issue.
2. Each city council member, irrespective of political affiliation, should have equal access to legal advice from the city attorney, while legal work on a matter consuming significant legal resources should require direction from a council majority.
3. The city attorney or persons seeking to become city attorney should not make campaign contributions to or participate in the campaigns of that city’s officials, including candidates running for that city’s offices or city officers running for other offices. For private law firms serving as city attorney or seeking to become city attorney, this restriction should apply to the law firm’s attorneys.
4. When considering whether to become involved in policy advocacy on an issue that may potentially come before the city, the city attorney should evaluate whether such involvement might compromise the attorney’s ability to give unbiased advice or create the appearance of bias.
The example in 3 shows why this does not apply to the City of San Bernardino because the City Attorney has to participate in the campaign of at least one city official, their own. A better guide of what the City Attorney should and should not do is the Charter of the City of San Bernardino.
The Charter of the City of San Bernardino, as amended in 2004, effective in 2006 reads:
Section 55. Position – Duties – Salary. (a) The office of City Attorney shall
be a full-time position, and the incumbent shall not engage in private practice.
(b) To be eligible to hold the office of City Attorney, the person elected or
appointed shall be an attorney at law, duly licensed as such under the laws of the
State of California, and shall have been engaged in the practice of law for at least
five (5) years prior to his/her election or appointment, and shall have been a
resident and elector of the City for a period of at least thirty (30) consecutive days
next preceding the appointment or the filing of nomination papers for election to the
office.
(c) In the event a vacancy shall occur in the office of City Attorney during
his/her term, such vacancy shall be filled by appointment by the Mayor and
Common Council, which appointment shall be valid until the next general municipal
election, at which time a City Attorney shall be elected for the remainder of any
unexpired term, or for a full term in accordance with Article II of this Charter.
(d) The City Attorney shall be the chief legal officer of the City; he or she
shall represent and advise the Mayor and Common Council and all City officers in
all matters of law pertaining to their offices; he or she shall represent and appear
for the City in all legal actions brought by or against the City, and prosecute
violations of City ordinances, and may prosecute violations of State law which are
misdemeanors or infractions and for which the City Attorney is specifically granted
the power of enforcement by State law without approval of the District Attorney, or
those violations which are drug or vice related; he or she shall also act and appear
as attorney for any City officer or employee who is a party to any legal action in his
or her official capacity; he or she shall attend meetings of the City Council, draft
proposed ordinances and resolutions, give his or her advice or opinion in writing
when requested to do so in writing by the Mayor or Common Council or other City
official upon any matter pertaining to Municipal affairs; and otherwise to do and
perform all services incident to his or her position and required by statute, this
Charter or general law.
(e) The salary of the City Attorney shall be fixed by the Mayor and Common
Council, but shall not be less than seventy-five hundred dollars ($7,500.00) per
annum. He/She shall be provided with office space and equipment, and clerical
help by the City.
That is the language of the Charter of the City of San Bernardino, and that gives the incumbent City Attorney some flexibility in operating. Former City Attorney Ralph H. Prince had one type of style, which I know only from reading old newspaper articles, hearing from former city officials and his son, and old City Attorney opinions. Current City Attorney Penman has a different style that he calls elected watch dog”. That style is a political decision, and if the voters do not like the style of the incumbent, they can vote the incumbent out or recall the incumbent. They can even try to change section 55, which the City Attorney’s opponents unsuccessfully attempted with Measure C in 2010.
Remember that the aspirational principles have not been adopted by any government agency, including the State Bar of California and the California Legislature, is not a fair question. It is reminiscent of the song lyric: “we thought that we had the answers, it was the questions we had wrong.” The introduction of these principles were a red herring to spread fear, uncertainty and doubt in the political process because these voluntary aspirational ethical principles are not “universally adopted” and because they should not apply to a situation like in San Bernardino. Voters should look to Charter section 55, and to the results of the office in judging the efficacy of an elected city attorney.
The proper method for evaluating the job of an elected city attorney is whether the legal advice given to the City as an entity is sound; whether the elected city attorney has done the things promised in their campaigns, whether the elected city attorney has observed the State Bar’s ethical rules, the dictates of the Business and Professions Code and the case law related to both, whether the elected city attorney is performing the duties given to them by the city’s charter, and whether the city attorney has performed the duties required by state law.
An appointed city attorney is a different creature than an elected city attorney. An appointed city attorney serves at the whims of elected officials. In a general law city with a five member council is just two votes from the unemployment line, if a quorum is three. The appointed city attorney must be political in a different way. However, it was the appointed city attorneys writing the voluntary aspirational principles, not the elected city attorneys.
Appointed city attorneys often just want to do their job (which is “political” with a small “p”) and avoid Election Politics. They don’t want to be hit up by everyone running for election. The preamble of the voluntary ethical aspirations states that it exists to “provide guidance to clients and the public on the ethical standards to which city attorneys aspire.” That means that if Council member A asks the appointed City Attorney to sign her nominating petition or make a donation to the campaign, appointed City Attorney can show her the voluntary aspirational principles and politely say that it is unethical to do so.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.
Michael Reiter, Municipal Attorney with Milligan, Attorney, Beswick, Levine & Knox LLP Blog 