The corporation counsel shall defend
all actions or proceedings against the city... Upon request, the
corporation counsel may represent any officer or employee of the city
in any action or proceeding involving official duties.
The most important word here is "may" in the second sentence. Counsel
"shall" defend proceedings against the city, but only "may" represent
an officer or employee and only with respect to matters "involving
official duties." This means that there are reasons why government
counsel may choose not to represent an officer or employee. The two
principal reasons would, I think, be (i) because the interest of two
officers, employees, or government bodies conflict, and (ii) the
personal interest of an officer or employee conflicts with the public
interest, or the city's interest.
Conflict Between Obligations to Mayor
and Council
When asked by a council member to write a memo about the settlement,
the grievance commission said, the law department's division
chief "became possessed of the duty to explain a matter to the
extent reasonably necessary to permit the client to make informed
decisions regarding the representation." The division chief's memo only
discussed the public settlement, not the secret settlement, thereby
preventing the council from making an informed decision.
The conflict
here did not involve policy differences concerning the public interest,
but personal vs. governmental interests. The division chief chose
personal loyalty to the mayor over charter obligations to the council,
and failed to disclose or otherwise deal responsibly with this conflict.
Elsewhere in the complaint, the grievance administrator said that the
division chief "engaged in a conflict of interest by advancing the
interests of Kilpatrick [the mayor] as an individual over the interests
of the people of the City of Detroit, City Council, and the Office of
Mayor." This captures the problem in a nutshell.
Representing the Official or the
Office?
When a local government attorney represents the personal interests of
any official or employee, there is a conflict with her obligation to
represent the people, other "clients" in the government, and the office
of the individual. I think that this last is most important. A
government attorney does not represent a mayor or a manager or a
council member, but the office of the mayor, the office of the chief
executive officer, and the city's legislative body. The individuals in
these offices, when acting in their personal interest, are not
"clients" of a local government attorney, but instead individuals whose
personal interests are in conflict with the interests associated with
their office. No longer aligned with their office, they can no longer be said either to be a "client" of a government attorney or to be capable of determining the public interest.
Determining the Public Interest
Of course, it's not always easy to know when an official is acting in
his or her personal interest, but there are many situations where it is
clear, and this is certainly one of them. It is not reasonable to argue
that hiding a mayor's sexual affair, after he'd lied about it in court
and when it was the basis for an expensive settlement to be paid out of
public funds, could be in the public interest.
It is often argued that a government attorney is not in a position to
make a determination of what the public interest is. Why should an
attorney be able to do this better than an elected official? However,
when people say this, they are thinking of the public interest in the
wrong sense. It is not so much what is best for the public, as what is
appropriate in terms of process. And who can better determine the
appropriate process than a lawyer?
Here, for example, the issue was whether to provide the council with requested, necessary information, so
that the elected council could make the determination about whether the
settlement was in the public interest. No other process could have been
appropriate. No government attorney should stand in the way of having the public
interest determined by the council based on all the facts.
Freedom of Information Determinations
The city law department was also involved in a freedom of information
request, in other words, an ethics matter. Government transparency is
one of the three areas of government ethics, along with conflicts of
interest and campaign finance. Government transparency laws set clear
rules intended to guide officials away from their personal interest in
keeping government information secret.
The Detroit
Free Press asked
for all the settlement documents, but the city law department, acting
under the guidance of the division chief, only provided the newspaper
with the public documents, knowingly withholding documents solely to
protect the personal interests of the mayor.
With FOI matters, there is no conflict between clients, because there
is no client. There is a law, and that law must be followed. There are
cases where it must be interpreted, but in such a case, there is no
reason to believe that an official, whose personal interests the law is
intended to deal with, can better interpret the law than an attorney
with no personal interest in the matter.
Originally, the law department argued that the settlement was a draft.
But once it was finalized, there was no excuse, no reasonable
interpretation, only loyalty to someone who should not have been part
of the decision, due to his clear conflict of interest.
Of course, by this time, the law department was also protecting itself.
Process Is the Answer
The more I think about the difficult position of the local government
attorney, the more I feel that the concept of a "client" who deserves the
lawyer's loyalty needs to be thrown out the government door. That's a very hard
thing for a lawyer to do, but it seems easier than always being caught
between officials and bodies and the public interest.
Process needs to
be at the center of any solution to a local government attorney's
possible conflicts, because process is what an attorney understands
better than anything and anyone. And process is the best guarantee we
have, often even better than voting, that a government will act in the
public interest.
Other blog posts on the Detroit coverup
The Mayor's Unethical
Behavior
Duties of Ethics Board
Members
Responsibilities of a
Lawyer Representing a Public Official
The Mayor's Resignation
Robert Wechsler
Director of Research, City Ethics
203-230-2548
