To: City Council and Mayor
From: Chater Review Committee
Date: 4/29/2024
Subj: City Attorney position ballot measure review
From the inception of the Charter Review Committee, the issue of the position of City Attorney has been on our agenda. It was one of the original requests from the City Council for us to determine any potential alterations to this position.
Initial request
The original request was whether this body should recommend to the City Council that the question of whether the position should be appointed rather than elected should be placed on a ballot. After a few meetings discussing this, including a study of all California Charters to determine how each of the ten cities with elected City Attorneys provided for them in that document, it was agreed that the question of elected versus appointed be given to the voters to decide by a six to one vote.
While this was not necessarily an endorsement of that position by the members voting in favor, the underlying concept was that the voters should decide this issue, even if it had been rejected in the past. It should also be noted that of those seven votes, only five of those members, Strutzenberg, Dawidziak, Maroko, Narain and Pinzler are still on the Committee.
Additional issue considered
As we worked with our consultant, Michael Colantuono, and we studied the issue further, through a sample of what might be used as ballot language, an additional issue arose regarding legal advice. Specifically, in our Charter, only the City Attorney can hire legal counsel for the City.
The question arose as to whether our City Council should be able to obtain advice from anyone other than the City Attorney. The rationale for this question is that if the Council decides it has not been provided the legal advice it needs or considers complete, its only recourse would be to ask that same City Attorney providing the original advice, whom they may not completely trust, to hire outside counsel for them.
Two other cities with elected City Attorneys are dealing with this issue. They are Huntington Beach and San Diego. While the issues that brought these concerns to the forefront are different from each other, the result is the same: a concern on the part of elected officials as to whether having legal advice residing solely in the office of the elected City Attorney is appropriate.
The proposed ballot language of a measure that includes both of these issues is attached.
By the time of the vote to approve this language, the membership of our committee had changed to its present form. When we voted once again as to whether to forward the document, the vote was still to recommend it. However, the tally was now four to three.
Council response and new request
When presented to the City Council in November 2023, the response was to not proceed with that question. Instead, the Committee was asked to investigate whether the City Prosecutor’s position now operating within the office of the City Attorney should be made a separate charter position and be elected. (This became known as the Long Beach model.) Some of the concern of some members of the Council was that certain crimes are considered by the present District Attorney’s office to be minor and prosecuting them would be not in keeping with a program to reduce jail overcrowding. In addition, two statewide initiatives also intended to reduce that same corrections problem, seem to have made it more difficult to prosecute activities sometimes called “quality of life” crimes. To the Council, these crimes were not getting the attention and action that the residents of the City seemed to be demanding.
Our City Attorney made a presentation about the structure of not only his office but how these prosecutions are handled throughout the County. He made a presentation and noted that 10 cities within Los Angeles County had set up these separate prosecuting authorities to handle these specific types of cases. He also indicated that while most of these had been set up before the election of the present District Attorney, there were now other cities that were attempting to contract with those cities having existing City Prosecutors to deal with the lack of action on the part of that District Attorney.
In the presentation, the City Attorney also discussed the present rationale and functioning of our existing Prosecutor’s office. He discussed the pros and cons of separating the offices.
He also arranged a presentation by the City Prosecutor of the only city in California that has such a dual-elected structure, Long Beach. Until we heard from him, any conclusion was deferred.
The Long Beach City Prosecutor was well aware of the status of his city as a unicorn among California charter cities, which are the only entities that could implement such a structure.
He also noted that the existence of these two elected positions is of long standing in that city and the lines of their distinct responsibilities have long been established, although there have been times when the dividing line between the two offices has been somewhat blurred.
A good part of the discussion with the Long Beach City Prosecutor and afterward was centered on financial, personnel, and jurisdictional issues. Very few cities in California even have a separate City Prosecutor, so the range of subjects for review was limited. It should also be noted that some of the cities that have Prosecutors are not charter cities, The office was created in those cities within their appointive attorney system.
A robust discussion of the merits was undertaken. Since there was only a sample of one city, much of the discussion was by necessity speculative. For example, at present, if the City Council wishes to get a legal opinion, it must obtain that through the City Attorney. They cannot seek that opinion on their own. But now, with two attorneys, will a Council try to “pick and choose” the one they prefer? Whose opinion has precedence, especially when the jurisdiction between the two offices may not be clear? And, since both would be elected, both could claim that superior position.
That question was raised with the Long Beach City Prosecutor, and he indicated that their experience with these split roles had established those rules. However, he also indicated that should two less collegial officials get elected, that could be problematic.
The committee also delved into the issue of cost. In our City Attorney’s presentation, some potential added costs were highlighted, including duplication of activity and additional overall headcount. With only one sample to review, and that being a city much larger than ours, we could only conclude that there would be an additional cost.
It was also discussed that the increased activity in the prosecution of misdemeanors and minor felonies at the city level may be, in part, a function of the politics of the specific DA in office today. Should that person no longer be in office following the election taking place in November of this year, the issue may not have the relevancy that it has today. However, if there is a desire to place this issue on the March 2025 ballot, should the present DA make it through the first round of voting, it will not be determined in time for placing it on our balloit.
Following consideration of all these issues, the Committee voted unanimously to forward a response indicating that the establishment of two elected offices was discussed and that we had decided that we would not recommend putting this on the ballot. Primarily, the rationale was that the creation of such a system would be financially burdensome and potentially lead to jurisdictional issues regarding Council legal advice.
Summary and timing
Concerning the questions regarding the office of the City Attorney, we believe we have provided the advice requested. The question of placing any of these items on a future ballot is for the Council to determine. However, the timing of those ballot measures could be a more intricate task than it might seem on the surface.
Because of the corruption that occurred at the City of Bell decades ago, the State Legislature required that any “change of status” of an elected department head be decided on an even year November ballot (Presidential or Gubernatorial.) This would include a change of an elected City Attorney to an appointed one. And while that would imply that we could place that on this November’s ballot, a different problem emerges. Since the certification of the election would not occur until after the process had begun to select the next elected City Attorney, including the posting of the requirements for the position, the result of that election perhaps would have to wait until the conclusion of that term in 2029, if it could be voted on at all.
However, whether to have the office of City Attorney broken up into one that would have an elected City Prosecutor could go forward in March of 2025 because it is not a “change of status” of an elected official.
But, if the goal, as has been stated by members of the City Council, is to make the Prosecutor position elected and City Attorney appointed, unless it is done in that order (or in one ballot measure at a future November election), one could not be sure that that specific transition would take place.
As stated above, the Committee does not recommend splitting the department and creating two offices. However, if the Council wishes to do so, the timing of these steps must be kept in mind.
This report was approved by the Committee by a vote of five to two. If you have any questions, please let us know.
Alternative Charter language amendment on City Attorney with the proposed amendment to strike language within paragraph (b) as recommended by independent advising counsel Michael G. Colantuono, of the law firm Colantuono, Highsmith & Whatley PC and approved by the Charter Review Advisory Committee:
Sec. 11.2. City Attorney.
No person shall be eligible for the office of City Attorney unless such person shall have been admitted to practice as an attorney at law before the Supreme Court of the State of California and shall have been engaged in the active practice of law in the State of California for at least five (5) years preceding such person’s appointment or election.
The City Attorney shall devote the City Attorney’s full time to the duties of office and shall not engage in private legal practice during the term of office, except to carry to conclusion any matters for which the City Attorney has been retained prior to taking office.
The City Attorney shall have the power and shall be required to:
(a) Represent and advise the City Council and all city officers in all matters of law pertaining to the respective offices/duties.
(b) Represent and appear for the city and any city officer, employee, or former city officer or employee, in any and all actions or proceedings in which the city or such officer or employee, in or by reason of such person’s official capacity is concerned or is a party. The City Council, at the request of the City Attorney, may employ other attorneys to assist in any litigation or other matter of interest to the city.
(c) Prosecute on behalf of the People any and all criminal cases arising from violations of this Charter or city ordinances; the City Attorney shall prosecute violations of State misdemeanors unless otherwise directed by the City Council. (d) Attend all meetings of the City Council, unless excused, and give the City Attorney’s advice or opinion orally or in writing whenever requested to do so by the City Council or by any boards or officers of the city.
(e) Approve the form of all bonds given to, and all contracts made by, the city, endorsing the City Attorney’s approval thereon in writing. (f) Prepare any and all proposed ordinances or resolutions for the city and amendments thereto.
(g) On vacating office, surrender to the City Attorney’s successor all books, papers, files, and documents pertaining to the city’s affairs.
The City Attorney may appoint such assistant city attorneys or deputy city attorneys who shall serve the City Attorney. Such assistant city attorneys or deputy city attorneys shall not be included in the classified service and shall be subject to removal by the City Attorney.
The City Attorney shall perform such other duties of a legal nature as the Council may by ordinance require or as provided by the Constitution and general laws of the State. *11.2—as amended by election 4-15-75, 6-5-84 and 3-7-23.