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An Appointed City Attorney?

Former Long Beach City Attorney Calhoun
Argues That City, Voters Should Consider It

By George Economides - Publisher

October 22, 2013 (Updated October 23, 2013) - Of the 482 cities in California, Long Beach is one of 11 that have an elected city attorney. Is it time for a change? Should the city attorney be an appointed position?

Yes, says John Calhoun, who worked as a lawyer for the city for 36 years, and who was elected city attorney in 1986, 1990 and 1994 – running unopposed each time. He says that the pool of qualified candidates is limited due to residency requirements.

John Calhoun served 13 years at Long Beach’s city attorney,
1985 to 1998, winning three consecutive elections with no
opposition. Citing several reasons, he claims it’s time
for the City of Long Beach to join nearly all other
California cities and appoint, rather than elect, their
city attorney. He says the pool of qualified candidates
would be huge.
(Photograph by the Business Journal’s Thomas McConville)

HCVT - Certified Public Accountants

“One of the problems here.” Calhoun says, “is that, as an elected office, it requires residency in the city in order to be eligible for election. You could have highly experienced people in the current city attorney’s office who don’t live in Long Beach who might be more qualified than anybody else you could think of.”

He notes that one reason the city manager’s position is an appointment is to ensure the city has access to the most qualified people in the country. “If you’re looking for a city manager in Long Beach that would be elected, you’d be running up against the wall trying to find qualified candidates.” Calhoun says the same thinking should apply when looking at the city’s top legal advisor.

“There is a big pool of highly qualified, very experienced municipal lawyers from which the candidacy for appointment could be developed,” he stresses. He also notes, “Out of the 471 cities that do not have elected city attorneys, most of them, if not all of them, seem to be doing pretty well. I don’t hear anybody clamoring to change their system and to provide for elected city attorneys.” He believes if the city appointed its top attorney, “The city would be inundated” with applications from qualified candidates.

The Long Beach City Charter – which is the city’s constitution – makes it fairly simple for any attorney to run for the office of city attorney. In fact, other than residency, an attorney who has maintained his or her license in good standing is considered qualified:

“Article VI, Section 601 – Qualification And Term Of Office Of The City Attorney. He must be qualified to practice in all the courts of the State of California, and must have been so qualified for at least five (5) years immediately preceding the first day upon which candidates for the office of the City Attorney are permitted to file nominating petitions for such office with the City Clerk.”

However, the duties of city attorney, as outlined in the Charter, point to how critical the position is to the operation of the city. In fact, some may argue the responsibilities of the city attorney are far greater, and more important, than those of the mayor or city councilmembers. Here are the duties as stated in the Charter, Article VI, Section 603, Powers And Duties Of The City Attorney:

“The City Attorney shall have the following powers and duties:

(a) To be the sole and exclusive legal advisor of the City, the City Council and all City commissions, committees, officers and employees with reference to all of their functions, powers and duties under this Charter, State and Federal law;
(b) To draft all ordinances, contracts, and other legal documents;
(c) To attend to all suits, matters and proceedings in which the City may be legally interested;
(d) To defend all suits for damages instituted against officers and employees and former officers and employees for acts performed by them in furtherance of their duty while in the employ of the City;
(e) To approve in writing the form of all bonds required by the City and all contracts before the same are entered into on behalf of the City;
(f) To investigate and enforce on behalf of the City all provisions of this Charter, of the general law applicable to municipal corporations, and of the ordinances of the City, in all courts in the State of California, except criminal cases.”

Calhoun says that the responsibilities are much greater when considering that Long Beach has an airport, port, health department, water department, etc. “We run the country’s third largest municipally operated gas utility,” he points out. “If you made a list of all the responsibilities, I don’t think even L.A. or New York City would match it.” Another key, often controversial area, for which the city attorney must be knowledgeable is the city’s tidelands and working with the California State Lands Commission and Coastal Commission.

Calhoun also argues that with an elected city attorney, “It’s either his way or the highway. The Charter does not provide for obtaining a second opinion, another opinion, to reassure.” If the position was an appointed one, the city attorney – or the city council – could get a second opinion.

“We need to go back to basics,” Calhoun says. “The law says that the Charter is not a grant of power. The Charter is a document of limitation. So whenever the Charter says something, whether it makes sense or it’s reasonable or not, that’s the way it’s got to be done. . . . The courts have said that the Charter of a city is the same as the constitution is to the state, and both are documents of limitation. Whenever it says something, that’s a limitation. When it says the city attorney is the sole and exclusive legal advisor and representative, that means nobody else is.”

Politics, or using the position for political reasons, also comes into play, according to Calhoun. “There is always the potential for you to get tied up with a donor or a special interest,” he says, adding that there is nothing keeping a city attorney from running for higher office, including the city’s mayor. “City councilpeople are doing it all the time,” he adds.

He also says that a political group could get behind an attorney who “spent the last five years doing divorces cases,” raise a lot of money and get him elected. “Let’s say you’ve got someone . . . who is obviously incompetent, incapable and ineffective. The only ways you can get rid of him is through recall or wait four years and vote him out of office, and that could be dangerous. It could be absolutely disastrous for this city.”

Calhoun notes that since serving as city attorney is not a high-profile seat where citizens get to know the person due to groundbreakings, ribbon cuttings, welcoming visiting dignitaries, etc. (similar to the roles of the mayor or councilmembers), the average voter may not know if a candidate is qualified. “At least with a city council appointment, there’s the job application review process, the interview process and so on,” Calhoun says. He adds that he would suggest at least a two-thirds majority vote of councilmembers to confirm an appointment.

Asked why he has not previously brought this idea forward, Calhoun says, “I’ve been thinking about this for a long time. . . . including during my time as a harbor commissioner, and as a plain old ordinary tax-paying citizen. I also have been somewhat nudged by all of this difficulty that has been going on with other elected city attorneys [he cited Oakland and San Diego as examples].’”

Calhoun acknowledges that the city attorney doesn’t have to be an expert in everything, because there is a staff of 20-plus attorneys and support staff, “but you do have to have a working knowledge of everything that is going on because the buck stops at your desk. . . . you’re also managing highly technical and trained independent-thinking people, so you’ve got to be able to manage those people with kid gloves sometimes and an iron fist at other times.”