Council and the scope of city attorney’s powers
Monday, March 4, 2013
In his latest column Doug Allen mentioned Jim True’s recent opinion about whether term limits apply to a potential run by our mayor for a position as a non-mayoral councilman (“It’s time to step up,” Aspen Daily News, March 1). Mr. Allen wrote, “... it’s True’s job to read and interpret laws on behalf of the city, ...” That is correct; on behalf of the city, not on behalf of the mayor.
Did Mr. Allen read the City Charter’s job description of the city attorney position? The city attorney is required to act under the direction of the entire council, not under the direction of the mayor or on the city attorney’s own initiative.
Section 7.1 of the Aspen City Charter says, “The city attorney shall be the legal representative of the City and he shall advise the council and city officials in matters relating to their official powers and duties and perform such other duties as council may prescribe by ordinance or resolution.”
In simple terms, the city attorney works for the City Council as a body. He is not a free agent who is permitted to decide what issues to address. Nor does he work for a single member of the council, including the mayor, who is a member of council. Nor does the city attorney operate a public law office where citizens can walk up and get answers to their legal questions — not even to questions relating to interpretations of Aspen city law. He works for council and has to be directed by council to address an issue.
There are good reasons why the charter calls for this. It is a powerful thing for the city attorney to address an issue or controversy. If he acts against an adversary in litigation he brings to bear the city’s prestige and resources, placing a heavy burden on the adversary. Moreover, there can be policy implications from his publicly addressing an issue. If the city attorney has spoken publicly on an issue, that can make it harder or easier for council to pursue a policy position, one way or the other, on that issue. So the city attorney is not intended to be an independent agent, deciding on his own which issues to address, which parties to sue, which lawsuits to defend. These are the exclusive prerogatives of council.
The recent activity of the city attorney, penning an opinion advancing the personal, individual interests of the mayor, has violated these rules. It has constituted an appropriation of a public resource for the personal ambitions of one potential council candidate. Mr. Allen’s glib dismissal of these actions as constituting garden-variety activity for the city attorney is wrong, uninformed and misleading.