Legislative Immunity, Local Government Attorneys, and Bell, California
Going by the reaction of the news media and the Pulitzer committee, the most serious government
ethics scandal of 2010 occurred in Bell, California, where the city's
top officials were paying themselves huge salaries, taking advantage of
an uneducated, uninvolved citizenry.<br>
<br>
Well, guess what. According to<a href="http://www.latimes.com/news/local/la-me-bell-attorney-general-20110506,…; target="”_blank”">
an article in Friday's Los Angeles <i>Times</i></a>, a Los Angeles County
judge dismissed the state attorney general's suit to recover some of
those huge salaries from Bell's top officials, partially on the basis of legislative immunity.<br>
<br>
It's worth recalling that legislative immunity is supposed to protect the public's
right to a public-interested representative by preventing people from
threatening to sue or suing a legislator and, thereby, causing the
legislator to put her personal interest in not being sued ahead of the
public interest.<br>
<br>
Let's play that out in the Bell situation. Legislative immunity is
being used to protect a local legislator's right to pay herself an outrageous salary (while hiding it from the public) by preventing the public's
representative (the AG) from suing legislators to get back
ill-gotten gains that no one would argue were in the public interest.
This is clearly not what was intended when the concept of legislative
immunity was created.<br>
<br>
<b>The Court's Decision</b><br>
The Tentative Ruling can be found on pp. 22ff of a League of California
Cities City Attorneys Department conference paper entitled <a href="http://www.cacities.org/resource_files/29713.5.2011%20Spring%20-%20Jame…; target="”_blank”">"Crisis
Management and Restoring Public Trust After Bell"</a> (May 6, 2011).
The court first makes a determination based on separation of powers (p.
28):<ul>
Plaintiff is asking the court to, in effect, substitute its judgment
for that of the legislative body of the City insofar as that
body's determination of the compensation of municipal officers
and employees. The court does not have this power....</ul>
Here is what the court wrote with respect to legislative immunity (p.
29):<ul>
Plaintiff has clearly alleged that defendants approved excess
compensation for themselves through City ordinances. ... Plaintiff's
allegations therefore trigger the doctrine of legislative immunity. The
fact that plaintiff characterizes the passages of those ordinances as
wasteful does not get around the issue.<br>
<br>
In sum, legislators cannot be sued for passing ordinances to raise
their own compensation. To permit plaintiff to bring such an action
would set a precedent by which local legislators throughout the state
could be dragged into court any time they pass an ordinance that the
Attorney General deems imprudent. Setting such a precedent would
undoubtedly impede the functioning of legislatures throughout the state.<br>
<br>
The conduct alleged by plaintiff in support of its first cause of
action may be reprehensible, but it is not actionable in civil court.
The proper means of reforming a legislature rife with greed and
ineptitude is the electoral process. There is no precedent for a civil
suit like this and the court declines to blaze a new trail today and
potentially open the floodgates of litigation for comparable actions.</ul>
The court might be leaving open the possibility of recovering the
excess salaries through a criminal action, which is pending. But the
judge does clearly say that the proper way of dealing with the matter
is at the ballot box, which would recover nothing, and which ignores
the fact that action has been taken, in which the state is involved, to
deal with the transition period before an election is held.<br>
<br>
<b>State "Interference" in Unethical Conduct</b><br>
What the court says is very reasonable. The AG can't undermine the
decisions of city councils across the state or create an atmosphere
where councils act in order to prevent state interference. And yet
there are situations where state interference is necessary. And these
situations include the situation in Bell, where
officials were putting their personal interests so far ahead of the
public interest that they were effectively stealing from them, and
where no local body or individual was doing anything about it.<br>
<br>
This decision does not, of course, affect the authority of local ethics
commissions, but it could be used to undermine the authority of state
ethics commissions. After all, state ethics commissions with
jurisdiction over local officials question the actions of local
legislators all the time. The only difference is that state EC
decisions are usually not about the content of a vote, such as the
amount of an official's salary, but rather about participation in the
vote. This is an important difference that should distinguish this case
from the great majority of state EC proceedings against local officials.<br>
<br>
The fact is that local legislators are dragged into proceedings by
state agencies all over the country, and this judge did not recognize this
fact. Reprehensible and merely irresponsible conduct may be dealt with
in ways other than elections, or even other than criminal actions, namely via government ethics proceedings.<br>
<br>
If local legislators want their salaries set without outside interference, perhaps they should hand the job over to an independent watchdog agency that operates with full transparency and without the legislators' participation.<br>
<br>
<b>The Responsibilities of Local Government Attorneys</b><br>
The conclusion of the city attorneys who drafted this paper is worth
sharing, since it speaks to the group of individuals I feel have the
greatest responsibility for preventing unethical conduct in local
government and who far too often do not accept this responsibility: local government attorneys.<ul>
Perhaps some of the most important lessons learned for city attorneys
and public lawyers are that you must remain vigilant and perform your
duties as required by law and ethical standards. A city’s attorney must
call out wrongdoing and non-best practices loudly and clearly. A city
attorney cannot be a shrinking violet with his/her clients or be a
legal advisor who goes along to get along.</ul>
If this were followed, which could only be done if local government
attorneys openly recognized that they do not represent the individuals
who appear to be their clients, but rather the public offices and the
public, there would be far less unethical conduct among local
government officials.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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