Should a Local Government Attorney Represent Both the Executive and Legislative Branches?

As I have noted again and again, there is no more difficult, conflicted role than that of a local government attorney. In small towns, there's not a lot that can be done. But in cities and counties, there are several things that can be done to lessen the local government attorney's conflicts.

This issue is currently being discussed in Hawaii County, by a charter revision commission, according to the Margaretwille Blog. The specific issue involves the county's corporation counsel representing both the executive and legislative branches. The corporation counsel is selected by and reports to the mayor, and sits on the mayor's cabinet. However, the corporation counsel also represents the council. There is a legislative research counsel to deal with legislation, but this counsel cannot contradict any opinions of the corporation counsel. The council can, by a two-thirds majority vote, hire special counsel, but this option is never used unless there is a clear, specific conflict of interest.

The current corporation counsel, faced with the possibility of a separate legislative counsel office or a deputy corporation counsel devoted to the council, sadly appears to be in denial. "I do not feel conflicted," he said, and he has a concern with the cost of a separate legal office. If he doesn't feel conflicted, it can only be because he hasn't thought about all the possible conflicts.

Yes, a mayor and council are both supposed to be acting in the public interest, but they are two distinct entities with different interpretations of the public interest, different obligations in representing their constituents, and a responsibility to oversee each other. Law is central to everything government does, and if one branch's interpretation completely controls the options of the other branch, there is a serious problem. And the corporation counsel's conflicted role is at the center of this problem.

The corporation counsel rejected two ideas that were floated, one to remove the corporation counsel from the mayor's cabinet, the other to assign an assistant to solely represent the council. He seems to have no interest in appearances of impropriety, nor a responsible view of government transparency. Take this exchange between a charter revision commission member and the corporation counsel:


Here's what the corporation counsel said soon after this. I think it reflects the common view of this topic among local government attorneys.


Filing a disciplinary action against a government attorney is not a reasonable safeguard. Not only should it be a last-ditch act, but it is useless in the case of an ongoing conflict such as the one being questioned by the charter revision commission. The fact that the corporation counsel had to exaggerate the conflict in his role by referring to every department (the departments are responsible to one mayor) and every council member (who only need separate counsel when a personal issue arises, such as alleged bribery) shows how little he truly cares about dealing responsibly with the actual conflicts that face a local government attorney.

What is the actual cost of having separate legislative counsel? If there is not enough work for a full-time legislative counsel, then the council can contract with a lawyer or law firm so that it has part-time counsel. If there is enough work for one lawyer, then one lawyer could be dropped or moved from the corporation counsel's office, and there would be no extra cost.

The rewards of separate counsel are great, and the costs low. Corporation counsel, both in terms of personal power and the power of the appointing mayor, will usually oppose this. But corporation counsel has a conflict with respect to this issue, and if he or she cares about conflicts, he or she should not participate in the matter.

Robert Wechsler
Director of Research-Retired, City Ethics

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