Councils should take control over city attorneys

Only with unbiased legal advice can city leaders serve their constituents.

Your Black Diamond article (“Appeals court ruling says Black Diamond mayor ‘lacked legal authority’ to hire city attorney in 2016”, published Jan. 12) revealed an insider secret about local governments in Washington: the attorneys are running the show!

I first encountered this when, as a newly elected King County Councilman, I sponsored new laws to control sprawl and protect our environment. At the time, all of the council’s legal advice came from the county prosecutor’s office, which was very pro-development.

Eventually the council hired its own legal advisors over the objections of the prosecutor’s office, and what a difference that made! Most of my legislation, backed up with impartial and accurate legal analysis, was subsequently adopted.

In city after city, attorneys advise elected officials in ways that undermine the ability of elected representatives to represent their constituents.

Recently, a council member in Snoqualmie faced an ethics complaint filed by the mayor because she forwarded a memo to the state auditor that was unnecessarily marked “confidential” by the city attorney. The auditor later found evidence of wrong-doing by the mayor’s administration.

In another city, council members were advised that they could not disclose what was discussed in executive sessions that were closed to the public even when the content of those discussions were not covered by exemptions from open public meetings laws.

In Black Diamond, poor legal advice led to tens of millions of dollars in lost developer impact fees to support city and school services. Those lost fees will now have to be made up by taxpayers from Black Diamond and Enumclaw.

The powers of municipal attorneys are vast and need to be controlled and balanced with the public interest. One of the best solutions is for local governments to avoid reliance on a single attorney.

Cities need to do a better job of managing their attorneys. Many just let the mayor or city manager direct them, resulting in legal advice that supports the bureaucracy but works against the elected council members.

City council members are the most direct representatives of the people. It is healthy for them to question the bureaucracy, including attorneys. Attorneys must not be allowed to intimidate elected officials.

But that is exactly what happened in Black Diamond. For over a year the citizens of Black Diamond did not have a functioning democratic government. Their city council was not allowed to set agendas, publish public notices or even make motions and take votes without the mayor’s approval. The council was denied its lawful right to retain legal counsel, while the mayor’s illegally-contracted attorneys attacked and undermined the city council, leaving members open to personal lawsuits and even one politically-orchestrated recall.

This court ruling should serve as a catalyst for reform in Black Diamond. The council could get more involved in contract decisions to cut costs and improve service. The council could better control land development projects, reducing costs to taxpayers. The council could revise its rules to empower its members and encourage public participation.

And the council could finally start controlling its own legal services instead of being controlled by them.

Brian Derdowski