The Informant

Some of California's major cities have appointed city attorneys, others are elected. What's the difference?

People in the Bay Area who pay attention to local issues likely know the name of their city attorney–or at least, the name sounds familiar and conjures vague associations with city hall. That may be because San Francisco’s Dennis Herrera and Oakland’s John Russo make more headlines than a lot of their peers–and that may have something to do with how they got to office.

Herrera, now a candidate for mayor, has variously taken on and inserted himself in some of the major high-profile political issues of the day. In 2004, American Lawyer called his office “one of the most aggressive and talented city law departments in the nation.” When Proposition 8 passed, banning same-sex marriage in San Francisco, Herrera joined the lawsuit against it. Herrera also introduced San Francisco to gang injunctions. Using an interpretation of nuisance law pioneered in Los Angeles, Herrera has obtained civil injunctions that bar the movements of gang members in five zones throughout the city.

Russo’s fame (whether sought or not) has also come partially via gang injunctions. He introduced injunctions to Oakland last summer, winning an order to impose a hundred-block safety zone in North Oakland which would inhibit the movements of people identified to be with certain gangs. His most recent proposal, a similar injunction in the Fruitvale neighborhood, has become an unprecedented political and legal battle over the efficacy and consequences of gang injunctions. Throughout this battle, Russo has had varying support from his fellow city officials, like Mayor Jean Quan, who has yet to say whether or not she supports the injunctions, which she’s called “Russo’s project.” (The City Council is reportedly swaying pro-injunction.) Quan and Russo have also bickered over the city’s onetime plan to allow large-scale marijuana grows and over Quan’s decision to keep a legal advisor who’s not from the City Attorney’s Office, but whose firm is actively engaged in fighting the city’s gang injunctions.

Now, Russo, amidst admissions to various media outlets that he’s less than happy with his current job, is reportedly a finalist for a new position (one that’s similarly obscure yet quite powerful): city administrator in neighboring Alameda. And with the possibility of Russo’s departure, Quan has raised the question of whether Oakland even needs an elected city attorney–in other words, a city attorney that must also be a politician, potentially with ambitions for higher office, and a penchant for attention-grabbing behavior–or one that’s appointed and serves more or less as a legal advisor to the city.

Which begs the question, what exactly is a city attorney and what are they for?

As our own Ali Winston previously reported, about half of California’s city attorneys in major metropolises are appointed, and the other half are elected (though statewide, a vast majority of towns appoint their city attorneys). And at their most basic, the responsibilities of each are outlined in the city charter. San Francisco’s Charter spends about half of the section that describes the office outlining what to do in cases of conflict of interest, but also includes a list of responsibilities, including providing legal advice to any city official (when requested), represent the city in cases of civil liability, and generally representing “the City and County in legal proceedings with respect to which it has an interest.”

San Jose’s charter spends less time on the (appointed) city attorney, a lot less time on conflict of interest, and the outlined responsibilities are pretty straightforward: attend city meetings, make sure everything’s happening by the book, and advise officials on their roles. Unlike in San Francisco, which allows the city attorney to forge his or her own concept of the city’s “interest,” the city attorney’s role at its most broad in San Jose, is to “perform other legal services required by the Council.”

And there’s no doubt that there’s a difference between being elected and being appointed to the post.

Compare the websites of San Jose’s (appointed) Richard Doyle and LA’s (elected) Carmen Trutanich.

Trutanich has photos, videos, editorials on various facets of public policy, and a blog, steadily updated with the city attorney’s conquests –from fighting graphics being projected onto buildings to hosting a roundtable to get city leaders thinking about child abuse. (There’s even photos of Trutanich, in a Santa hat, handing out toys to underprivileged kids.) In contrast, Doyle’s site is, well, pretty dull–an obscure and sparse corner of the the City’s general site.

So which is better?

That debate has been actively going on in California since at least 1929, when the City of San Diego was rewriting its charter to usher in, in the words of an enthusiastic columnist of the day, “a new era in civic affairs here–an era in which the voice of the people is going to be heard, with a consequent silence on the part of the high-hatted Charlie boys who have been making fools out of us since Father Horton staked out the town.”

The new charter-writers struggled with the city attorney position–whether an elected or appointed one would be more democratic. A 2005 paper written by San Diego’s then-City Attorney Michael Aguirre outlines the different reasonings.

Those in favor of an elected city attorney argued that the office would be freer from influence of other city officials (who the person was supposed to advise on the legality of their actions) if he (or she, but he then) was “completely independent.”

Meanwhile, those who favored an appointed city attorney believed that a more competent attorney could be chosen if not “required to go to the trouble and expense of an election campaign.” And that the city’s lawyer “should be one who can work in harmony with the council and manager.” One might add, not have his or her own political ambitions that might color those relationships.

The charter’s authors decided to go with an elected city attorney. Incidentally, Aguirre, who made his mark in San Diego by going after city corruption, consistently said his role was not only as attorney for the city government, but also attorney for the people of San Diego. The people took that job away from him in 2008, following a vitriolic campaign in which Aguirre was accused of conflict of interest. Partially at issue was Aguirre’s aggressiveness (which some took as politics) in pursuing lawsuits that he said were in the interests of the public, if not the city’s leadership. (The State Bar later dropped all complaints against him.)

The most recent example I could find of a California city considering this question was last year in San Bernadino–which had a measure on the ballot to changer their city attorney from elected to appointed. Proponents said making the position appointed would streamline the city and eliminate some of the crippling politics at city hall. Opponents of Measure C, as it was called, pointed to the notorious example of Bell, California, which famously crumbled into corruption and has an appointed city attorney.  The measure failed (by a lot) and San Bernadino’s position remains elected.

What should Oakland, which switched to an elected city attorney in 2000, do? It depends on how people feel about their city hall when, and if, the issue comes up in a meaningful way: whether they trust the mayor and city council to check each others’ power without a “completely independent” city attorney; and whether they want more or less political (or more public political) fighting at city hall.