Roles of the Mayor/Manager and the City or Town Council 101: Acquiring Legal Services

How do local governments obtain legal services?  With county government, it's easy, since the prosecuting attorney provides legal services and prosecuting attorneys are elected officials.  When it comes to cities and towns, though, the answer is not that easy.

The statutes that apply to cities and towns all recognize that legal assistance may be needed.  RCW 35.27.070 provides that a town mayor may appoint an attorney.  RCW 35.23.021 authorizes the city council of a second class city to enact an ordinance providing for the appointment of a city attorney.  In a mayor-council code city, "[p]rovision shall be made for obtaining legal counsel for the city, either by appointment of a city attorney on a full-time or part-time basis, or by any reasonable contractual arrangement for such professional services.”  RCW 35A.12.020.  In a council-manager code city, the options are the same, although a recommendation by the city manager is first required before the council can make its decision.  RCW 35A.13.090.  The charters and ordinances of first class cities will determine how those cities obtain legal assistance.

So, one way to acquire legal services is by the council creating the position of city or town attorney, to be filled like any other appointive office, with the selection made by either by the mayor or the manager, as the case may be.  The city or town council must determine the attorney’s compensation and provide for funding of the position.  In a council-manager code cities, the council can set the compensation level only after the manager makes a recommendation.  RCW 35A.13.090. Once the attorney’s position has been created and the compensation set, either the mayor or the manager, as the case may be, selects a person to fill it.

While the mayor or manager selects a person to fill the position, some councils have the authority to confirm appointments. Town and code city council-manager councils do not have the authority to confirm any appointments RCW 35.27.070; RCW 35A.13.080(2). Second class city councils may confirm the appointment of the city attorney (RCW 35.23.021), and the council in a mayor-council code city may confirm mayoral appointments if confirmation has been provided for by ordinance and the “qualifications for the office or position have not been established by ordinance or charter provision.” RCW 35A.12.090. If a position is subject to council confirmation, the mayor’s appointment is not final unless and until the council confirms the appointee; if the council does not confirm, the mayor must make a new appointment.

Filling the position as an "in-house" attorney is only one way to obtain legal services in a city or town.  A city or town may, alternatively, contract for legal services.  Contracting authority belongs to the city or town council   If the position of city or town attorney has been made an office, but one to be filled by a contract for services, the mayor or manager would select someone to contract with to fill the office, subject to possible confirmation and the approval of a contract by the city council. (Creation of an office, along with its authority, duties, and qualifications, is accomplished by ordinance passed by the city or town council or in a charter, if there is one.)  If the council does not approve a contract or confirm the appointee, the process to make a selection will need to be restarted.

If legal services are to be provided by contract (as decided by the council) and the attorney position has not been made an office by ordinance or charter provision, the council would have sole authority to decide who should provide the services and the content of the professional services contract (compensation, responsibility for ordinances and contracts, meetings to attend, etc.). See Koler v. Black Diamond. The mayor or manager may, of course, offer recommendations.

Who makes the decision to terminate the attorney or the legal services contract?  If the position of city or town attorney is an office or an employment, the mayor or manager would make that decision, and the decision would not be subject to council confirmation.  However, if the position is filled by contract, the contract may contain penalties for an early termination, and those conditions should at least be considered when making the decision to terminate.  Even though the mayor may choose to terminate the contract attorney, if he or she is an officer, the council might still have a role in the matter, since the council is the city or town’s contracting authority; this would certainly seem true, if the termination had financial consequences.

If the attorney services are obtained strictly by a professional services contract - no office has been created by ordinance or charter provision - the council would make the decision to terminate the contract, recognizing, of course, that there could be legal or financial pitfalls involved, if the termination is not consistent with the contract.

Regardless how a city or town obtains its legal services, both the mayor (or manager) and the council play important roles.  The extent of the role of each is dependent upon the decisions the council makes on how services will be obtained.  The mayor/manager may make the appointment, or the council may approve a contract for services, or each can exercise authority in obtaining legal assistance.