When the City Attorney Stops the Legitimate Will of the Elected Representatives

From The Capital Times:

On April 27, six days after the meeting, the city attorney issued a memo saying according to state law, it's impossible to delay these exemption cases any longer because after 90 days, the claims are considered denied regardless of whether the city has taken action, which happened on April 20 with Madison Turners and will happen on April 29 and 30 for the other two.

The memo and essential declaration that the City Council's actions were null and void ...

When I became mayor in 1973, Ed Conrad, known as Dr. No, was city attorney. He said 'No' to a number of major policy initiatives. When we wanted to set up a Madison Development Corporation, Ed Conrad said 'No.'  When we wanted to do an on-street parking permit system exempting neighborhood residents from the two hour parking restrictions, Ed Conrad said, "No."

The relationship between the elected officials, the mayor and the city council, and the city attorney is a critical one.

The city is the client; it should respect the opinion of the city attorney. But in those cases where there is fundamental public policy that the city elected officials wish to advance and reasonable people can come to legal conclusion that the position, while risky, does have a foundation in the law, the city attorney must do one of two things.

The attorney must accept the policy decision of the elected officials and make a good faith effort with all of his skills and zeal possible, to represent the position of the client.

If the attorney does not feel comfortable doing that because it violates his professional standards, the city attorney should advise the city council and the mayor that they should hire outside legal counsel that is comfortable with their position.

After Ed Conrad retired things changed. Now the Madison Development Corporation is over thirty years old. Now downtown residents can get on-street parking permits.

The competence of the city attorney is not the issue.

The underlying disagreement about taxing non-profits is not the issue.

The technical expertise of the city attorney is not the issue.

The position of a majority of the council on non-profit housing is not the issue.

The issue is that a city staff member, having expressed this opinion, is interfering with ability of the policy makers, the elected officials. City attorney Michael May could be correct. Having said his piece, he should abide by the will of the policymakers or get out of the way.

This is a classic dilemma in public management and administration. There may be differing opinions on the non-profit housing issue but there is no debate about the role of the bureaucrat.

Comments

[rich]

Excellent post. Madison is often hamstrung by a self-imposed "We can't" mentality.

'We can't' build density on East Wash b/c of the Capitol view. Or b/c of Truax flight patterns.

'We can't' turn East Wash into a boulevard b/c it's a highway. We can't!

'We can't' put underground parking on the East Isthmus b/c of the water table.

'We can't' afford bold, visionary leadership b/c village sensibilities recoil at new & different, the exceptional, and the colorful. Who would rent buy or build if the city was, you know, interesting?

None of those objections bear scrutiny. All allow Madison to be hamstrung by Lilliputian considerations imposed by Lilliputian minds. The growth and vitality of the central city lifts the economic prospects of outlying municipalities and the region as a whole. Nowhere else do subordinate concerns overrule the larger interests of the major polity.

More like this post, please.

[Brenda Konkel]

ABSOLUTELY!! Thanks for the post Paul.

[Kristin Czubkowski]

A very interesting post, but I have a question. The state law says outright in 74.35(3), "In this subsection, to 'disallow' a claim means either to deny the claim in whole or in part or to fail to take final action on the claim within 90 days after the claim is filed." It was my impression that Attorney Michael May was informing the council that according to state law, the claims will be denied on April 29 and April 30 because the City Council did not take final action -- that it's something that happens automatically. Whether this should have been more clear to alders at the April 21 meeting or whether there could or should have been a special meeting after it was clear are separate questions, but what I'm curious about here is whether you think the attorney is actively going against the City Council's decision in this case or informing them it was not a decision that could have been made?

[Noel Radomski]

I agree with Brenda, this is an excellent perspective that needs to be discussed. I can only hope that the alders, especially the president and president pro tem appreciate and exercise their legislative role.

[Personal Attorney]

This is a very thought-provoking post. I appreciate your insights, I feel like I understand the situation a little better than I did before.

[Stu Levitan]

Mike May has also been a hindrance on finding a solution to the prosecution of the Majestic for non-payment of the fee for encroaching into the public right-of-way (by its landmark-protected marquee). This is a perfect example of why electing City Attorney is a terrible idea. (sorry, Cap Times -- you're wrong wrong wrong on this one).