Two recent Citizen's Views have contended that West Linn's city charter leaves no room for an in-house staff attorney. This is not the first time we have encountered this debate. Their conclusion is based on an erroneous interpretation of the charter. The bottom line is that the council may allow the city manager to have an in-house attorney on the city staff.
I agree that "our city charter is our constitution and holds the answer to the current conflict of our city attorney structure." West Linn's charter is based on the model charter for Oregon cities and is from the University of Oregon Bureau of Governmental Research & Service (BGRS). That model uses what is, in legal jargon, a "general distribution of powers" clause to a city council. This is the clause with which any analysis of council powers must begin. As an attorney with the BGRS for 15 years, I worked on the model and with many city charter review committees as they used it as a base for amending or drafting a new charter for their cities.
West Linn's general distribution of powers clause is Section 6 of Chapter II which reads: "Except as this charter prescribes otherwise ... all powers of the city are vested in the Council." Rules of statutory construction require the charter to be read as a whole. This means acknowledging that all powers of the city are vested in the Council "except as the charter prescribes otherwise." Does the more specific provision establishing the office of city attorney "as the chief legal officer of the city" (Chapter V, Section 23A) limit or otherwise prescribe the council's broad authority? It does not. By its own terms, Section 23A does not preclude even that officer from being a city employee. In cities that have charters like ours and that have in-house counsel, how he or she interacts with a city attorney appointed from a private law firm is a well thought-out arrangement.
Previous councils have chosen to appoint the city attorney from a law firm to provide all legal services. But nothing in the charter precludes the council from allowing the manager to hire an in-house attorney as a city employee.
The charter leaves open for council action what the council believes to be in the best interest of the city.
I have known the current city attorney for many years and I have the utmost respect for him and his firm's municipal law prowess. Likewise, as a member of the City's Historic Review Board, I appreciated the training provided and advice that our current in-house attorney gave to that board.
There are many reasons to promote either structure for delivering legal services. It is not unusual for budgetary constraints to enter the balance as to how best to provide legal advice.
Often an in-house attorney can give more cost-effective attention to the City's ordinance drafting, contracting and code interpretation needs, to name a few, because an in-house attorney's sole attention is to one city's needs. But, any city our size that does employ an in-house attorney also needs the services of a larger firm steeped in municipal law to care for litigation and other high profile concerns of the city.
Some argue that there are conflict issues with having an in-house attorney.
I am not persuaded on that point since the council can always turn to the city attorney for advice if it should feel a need to do so.
As one of the previous Citizen's Views addressing this issue noted, "the charter is our only common ground" for all to engage in this discussion. We can agree to disagree as to what our preferred structure should be, but there is no ground for asserting that the Charter requires only one answer.
Jim Mattis is a resident of West Linn, where he was formerly a city councilor.