One of the trends these days in larger cities and counties finds councils seeking to have independent counsel from the city/county attorney. I lived through that when I was county attorney in Montgomery County. The issue discussed in this post seems to be among the reasons councilmembers seek to have their own attorney. I'll grant you that having their own attorney doesn't change either the ethics or the workload for whoever fills that role, but because the attorney is not the attorney for the city or county and only the legislative body, that body can adopt rules for how it wishes to handle one councilor requests. My inclination tends towards allowing the legislative body to adopt policy for how it wishes the city/county attorney to handle those requests, just as it should adopt a policy regarding confidentiality of communications between a lone councilor and the attorney's office. Rules of privilege and confidentiality will vary based on the form of government you serve as legislative privilege may preclude discussions between the legislative and executive branches where there are clear demarcations in the form of government between them. My perspective argues against having independent counsel for the legislative branch or for the executive and in favor of the city/county attorney acting as organization counsel and representing both. A solution for large cities/counties where the issue seems most likely to arise can be for the chief legal counsel to appoint someone to represent counsel and create a firewall between that attorney and other members of the department regarding confidential legislative matters while retaining the ability to serve the organization as a whole and provide the full expertise of the office. For larger cities/counties these are issues sometimes discussed as part of the Top50 agenda and I urge those representing the large of cities/counties to participate. For smaller communities, I think Pinita's suggestion makes sense as does Mark's (recognizing that Mark is from one of the largest cities in the US) and that his solution seems to be working there. My only worry there is this trend toward independent counsel. I worked under that arrangement for twelve years, it preceded me and grew with Council having at least three lawyers of their own. All of their lawyers were excellent, it was only a bit unwieldy when our advice differed and the disagreement became public. I'd like to add that when we disagreed while we were usually correct, I'm afraid to admit not always. From: Mark Stiles via Cityattorneys <cityattorneys@lists.imla.org> Sent: Friday, November 22, 2024 9:36 AM To: Pinita Maberry <pmaberry@rawlinswy.gov>; Ravinder Arneja <rarneja@imla.org>; cityattorneys@lists.imla.org; counties@lists.imla.org Subject: [Cityattorneys] Re: Responding to request for research from council members Hello, In Virginia there is a Legal Ethics Opinion from the state bar that states that because the local government attorney's duty is owed to the body and not to an individual member, the lawyer has a duty to advise the body of any significant drafting request so as to not surprise or disadvantage another member or members of the body. As a result, several years ago I wrote a letter to all members of the body advising them of the ethical rule and informing them that any request for the drafting of an ordinance or resolution or any request for research involving more than de minimis time and attention should be in writing and copied to the entire body. We don't request approval of the body except in extreme situations where the effort to satisfy the request would impact our ability to perform day to day obligations. However, by giving the notice, the body can take action to direct me not to undertake the work if it feels that effort is an unjustified use of public resources. I never had any push back from councilmembers because they understood the requirement was imposed by the ethical rules governing my profession; however, the Council recently adopted a formal policy addressing certain council operations, which included this subject matter and so now my request is their self-imposed rule. Mark D. Stiles City Attorney City of Virginia Beach Municipal Center, Building 1 2401 Courthouse Drive, Room 260 Virginia Beach, VA 23456-9004 Office: (757) 385-4531 Direct: (757) 385-8032 Facsimile: (757) 385-5687 E-Mail: mstiles@vbgov.com<mailto:mstiles@vbgov.com> This E-mail and any materials transmitted with it are confidential and are intended solely for the use of the individual or entity to whom it is addressed. The information contained herein is legally privileged and confidential under applicable law, protected by the attorney-client privilege, the work product doctrine, and/or any other privilege from disclosure recognized under the law. If you are not the intended recipient of this message, you are hereby notified that any review, use, distribution, forwarding, printing, copying or disclosure of this communication is strictly prohibited. If you have received this communication in error, please immediately notify the City Attorney's Office at (757) 385-4531 or by return e-mail to mstiles@vbgov.com<mailto:mstiles@vbgov.com>, and purge the communication immediately without reviewing, using, distributing, forwarding, printing, copying or disclosing the contents of the communication. Thank you. ________________________________ From: Pinita Maberry via Cityattorneys <cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org>> Sent: Thursday, November 21, 2024 5:16:31 PM To: Ravinder Arneja <rarneja@imla.org<mailto:rarneja@imla.org>>; cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org> <cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org>>; counties@lists.imla.org<mailto:counties@lists.imla.org> <counties@lists.imla.org<mailto:counties@lists.imla.org>> Subject: [Cityattorneys] Re: Responding to request for research from council members CAUTION: This email originated from outside of the City of Virginia Beach. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hello, I would also like to know how other attorneys handle this issue. In my city, council members are elected and generally only meet twice a month. Council is required to act as a group through consensus or majority vote rather than individually in requesting research or work product from staff, including the City Attorney. It can be a hard line to draw, especially when a city attorney would like all members of council to be educated on issues, particularly because they spend such limited time on city matters. My city has no formal policy on the issue, but I generally will provide limited research to individual councilors when it takes me less than an hour or two to complete. For anything that takes me over that threshold, I politely advise the councilor that additional research or review on the matter should be requested by the entire body and will sometimes point them in the direction of additional resources to continue review on their own. I also try to educate councilors on the option to also table matters if more information is needed for an informed decision, which can sometimes lead to the group requesting the city attorney that additional research be conducted for the various perspectives. If someone has figured out a way to handle this issue tactfully, I would like to know, too! Kind regards, Pinita Maberry-Nave CITY & PROSECUTING ATTORNEY Rawlins City Attorney's Office PO Box 953 521 West Cedar Street Rawlins, WY 82301 Tel: (307) 328-4515 [cid:image001.png@01DB3CD0.FB2658A0] From: Ravinder Arneja via Cityattorneys <cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org>> Sent: Tuesday, November 19, 2024 2:51 PM To: cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org>; counties@lists.imla.org<mailto:counties@lists.imla.org> Subject: [Cityattorneys] Responding to request for research from council members This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. ________________________________ Hello, everyone, A member would like to know if and how other municipalities process/screen/respond to a request for research or the drafting of an ordinance or policy from a lone council person. Does your local government have a threshold that must be met in order to reduce the time staff spends researching and drafting issues the majority of the council has no interest in pursuing? If you have any information on this, please send them to me at rarneja@imla.org<mailto:rarneja@imla.org> and I will pass it along. 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