Municipal Law Q&A
Who gets to choose the municipal attorney?SHORT ANSWER:
Illinois courts have recognized that the selection of a municipal attorney principally resides with the mayor,  village president or with the manager in a statutory form manager municipality. Courts have held that the mayor, president or manager can select the attorney whether that position is being carried out by a person serving as a municipal officer or, more commonly, by a person or law firm serving as an independent contractor. Where a municipal attorney functions as an independent contractor, has not taken an oath of office or posted a bond and does not receive a W-2 Form, or receive IMRF benefits, no prior contract with that individual or law firm is automatically extended beyond the term of the mayor or president. Courts have taken that position even where the selection of a new attorney was not confirmed by the council or board.
The courts have also found that, where the members of a city council or village board are dissatisfied with the actions of the municipal attorney and they have sufficient votes to override a mayoral veto, they can employ their own attorney as legislative counsel.
The issues raised by the appointment of the municipal attorney are complex and interesting and are more fully described and explained in the article which follows, and provides the Long Answer.
LONG ANSWER:
LAWYERS, LAWYERS EVERYWHERE:
WHO HIRES THE MUNICIPAL ATTORNEY
WHEN THE MAYOR AND THE COUNCIL DO NOT AGREE?
By: Stewart H. Diamond and Keri-Lyn J. Krafthefer
The section of the Illinois Municipal Code which relates to the appointment of a municipal attorney has recently been the subject of controversy. Section 3.1-30-5 of the Municipal Code, which provides that the mayor (1) may appoint an attorney (2) with the advice and consent of the city council, was enacted with the thought that the mayor would appoint a municipal attorney, the council would have confidence in the attorney and consent to the mayor's appointment. The municipal officials could then channel their attention and energies to the business of governing. Most municipalities in Illinois function exceedingly well with an attorney or a law firm chosen by the mayor and approved by the council. The attorney is viewed as providing independent advice to all elected and appointed officials, and neither the compensation for the attorney or the nature of work to be performed results in any dispute.
In other municipalities, however, the appointment mechanism contemplated by the Municipal Code simply does not work. This generally occurs when the municipal attorney proposed to be appointed or retained is perceived as being too closely allied with the mayor, or as only representing the interests of the executive branch. In this case, communication and trust break down between the executive and legislative branches. Unless both factions can agree on a compromise, or receive direction from the statute or the case law, municipal business can suffer. Some municipalities have attempted to resolve the dispute through the passage of ordinances and have ended up in court. The Illinois Supreme Court first tackled components of this issue in 1976 in the consolidated cases of Pechous v. Slawko and Dumke v. Anderson, 64 Ill.2d 576 (1976). Those cases, two recent appellate court decisions and one trial court decision, which will all be discussed below, have defined the roles of the mayor and the council in the appointment of a municipal attorney. Although these rulings do not definitively answer all the questions about the employment of a municipal attorney, they do establish the following general principles:
1. What can the Mayor do?
A. Under Illinois law, except in a statutory manager form of government, only the mayor may choose the attorney to principally represent the community. In a statutory manager form of government, that authority resides with the manager. The legislative body of an Illinois municipality cannot choose the municipal attorney. However, as discussed below, this does not prevent two-thirds or more of the council members from selecting an attorney or firm to give advice related to their legislative functions.
B. The attorney or law firm selected by the mayor is entitled to be paid in a reasonable and competitive manner for competently provided services, even if the legislative body does not agree with the municipal attorney's opinion or advice.
C. The council cannot encroach upon the mayor's right to select, use, or direct the municipal attorney on issues related to the mayor's executive functions.
2. What can the Council do?
A. A council which has enough votes to override a mayoral veto may select and pay an attorney to provide competent advice on a broad range of issues related to the power and duties of the legislative body. In governmental forms where the mayor does not possess veto power, a council majority should be able to accomplish this independent selection.
B. Since the legislative body must approve nearly all formal acts of the municipality, the services of such a legislative counsel can be quite extensive. However, the council cannot prevent the mayor from instructing the municipal attorney to provide advice on issues related to the mayor's executive and administrative powers, nor can it assign the general corporate work of the executive branch of the municipality to the legislative counsel.
C. In matters of litigation either involving a dispute between the executive and the legislative body, or between a municipality and a third party, both the municipal attorney and the legislative counsel may generally appear and express their clients' divergent views.
3. What can the Manager do?
A. In a statutory manager form of government, the manager has the power to appoint the municipal attorney.
B. The manager's selected attorney or law firm is entitled to be paid in a reasonable and competitive manner for competently-provided services.
In short, the courts appear to be willing to allow both the mayor and the council to hire attorneys of their own choosing to represent them in their distinct executive and legislative roles. However, the courts are intolerant of attempts of either branch to encroach upon the ability of the other to receive adequate counsel.
The courts first addressed a variation on this issue in 1976 in the consolidated cases of Pechous v. Slawko and Dumke v. Anderson, 64 Ill.2d 576, 357 N.E.2d 1144 (1976),which arose out of disputes in the City of Berwyn and the Village of Oak Lawn, respectively. In Berwyn, the council adopted ordinances removing certain city officers and appointing replacements for them. In Oak Lawn, which has a managerial form of government, the village board passed several ordinances designed to replace the village attorney (an officer appointed by the manager) with an independent contractor attorney hired by the village board.
The trial court found that all of the ordinances were invalid as they encroached upon the appointive power granted to the mayor/manager. In considering the consolidated Pechous and Dumke cases, the Illinois Supreme Court reiterated that the appointive powers were vested in the mayor (or manager in the manager form of government) and that legislative attempts to divest the appointive powers would be unsuccessful. However, the decision in these two cases did not give guidance to aldermen or trustees as to how they might lawfully get legal representation if the mayor is not cooperative with the majority's desire for independent representation.
These cases represented established law for many years. However, neither the Pechous nor Dumke courts directly considered the fact that most municipalities receive their legal advice from law firms or attorneys who serve as independent contractors instead of as sworn municipal officers (3). Historically, and frequently by local ordinance, the attorneys who function as officers and those who function as independent contractors are appointed by the mayor or president and confirmed by a vote of the board or council. The distinction between an attorney's characterization as an "officer" or "independent contractor" was thought to be critical, because while mayors clearly have the power to appoint officers, the council members could always argue that they, not the mayor, have the power to contract with an independent contractor who is not an officer.
In the recent case of Village of Westmont v. Lenihan, 301 Ill.App. 1050, 704 N.E.2d 891 (1998), an Illinois Appellate Court addressed this distinction. In the Westmont case, the ordinances of the municipality provided that the mayor was to select the attorney to represent the municipality. The mayor removed the law firm which had been serving as the village attorney, and did not submit a new name for approval to the village board. Instead, the mayor designated a different law firm to perform the village's legal work as an independent contractor. After the mayor continued this practice for ten months without putting the firm's name before the board as an officer, the village board adopted a resolution hiring a different firm (the previous village attorneys) to perform duties as village attorneys.
When the dispute landed in the appellate court, it held that the board of trustees acting alone could not unilaterally terminate a relationship with an attorney employed as an independent contractor and upheld the entry of a preliminary injunction requested by the mayor. The Westmont
court strongly suggested that, whether the principal attorney for the municipality was called an officer or an independent contractor, that person or firm could only be selected by the mayor or president. In the case of a statutory manager form of government, based on the 1976 cases, that power resides in the manager. The case reiterated that any effort by the legislative body to control the appointment of that legal advisor would not be permitted. The decision in the Westmont case strongly supports the ability of all Illinois mayors or statutory managers to select the attorney or law firm of their choice. Under these circumstances, what is a council or board majority to do if it disagrees with the views of the municipal attorney or does not have confidence in the firm selected by the mayor or statutory manager?
This very issue was addressed shortly after the Westmont decision, in Sampson v. Graves, ___ Ill.App.3d ____ (No. 1-98-0655, 1st Dist., 3/31/99). The Sampson case arose in the City of Harvey, where the members of the city council felt they needed to seek legal advice beyond that provided by the municipal attorney. They passed an ordinance, over the mayor's veto, which gave the chairman of the finance committee the power to hire an attorney to provide counsel to the aldermen on matters relating to legislation. The mayor argued that this ordinance was illegal since it interfered with his power to select all individuals providing legal advice to the municipality. The appellate court disagreed, finding that there was no inconsistency between a community having both a municipal attorney and a legislative counsel. The court's opinion suggested that there was no reason why a municipality whose citizens had chosen individuals with differing views as mayor and aldermen should not benefit from a government where both factions were receiving adequate legal advice.
The Sampson court based its decision in part upon the case of Rudd v. Sarallo, 111 Ill.App.2d 153, 249 N.E.2d 323 (1969), a 30-year old case that our law firm had the pleasure of trying, and which established an important principle of Illinois law. The Rudd decision recognized that there is a separation of powers in Illinois municipalities between executive and legislative bodies and that, like our federal government, each branch is to function under a series of checks and balances. Building upon this important principle, the Harvey court confirmed that a legislative majority can establish by ordinance the position of legislative counsel, who may provide a broad range of legal services to a city council or village board which has the need for independent legal advice. So long as the legislative counsel does not attempt to interfere with the duties of the mayor's appointed attorney, that lawyer should be able to provide all of the assistance required by the legislative majority.
The murkier issue, that of compensation of the attorneys, has not been entirely resolved. The Appellate Court cases have not dealt with whether a council or board, which was not happy with the municipal attorney, could attempt to destroy the effectiveness of that position by failing to pay for the services performed by the community's main attorney. While this issue is not fully resolved, the 1993 trial court decision in Steele v. Ahern (No. 93 CH 142, Cir.Ct. Rock Island County, 1993) provides us with some guidance.
The Steele decision, which involved the City of Silvis, supports both the argument that the mayor is not only entitled to an attorney of his or her choice, but that the attorney is entitled to adequate compensation. In the Steele case, a lawyer who had served as the municipal attorney under a previous mayor sought to remain in that position even though the new mayor wanted to appoint a different individual. The city council argued that, unless the council ratified the mayor's appointee, the former attorney could continue to served as a "holdover officer." In discussing the distinction between an officer and an independent contractor, the trial court judge found that the "holdover officer" was not an officer at all, but rather an independent contractor whose contract had, under any circumstances, expired. The court further found that the mayor's failed appointee was entitled to served as city attorney on a temporary basis, even if the council would not confirm the appointment.
The implication of the trial court judge's decision in the Steele case is the same as that in the Westmont case. The position of mayor or president or statutory manager is simply too important to be allowed to function without legal advice from an attorney in whom that official has confidence. In a practical sense, such an official, stripped of a reliable source of legal advice, can greatly harm the municipality through either inappropriate action or inaction. While there is no guarantee that such a well-advised official will always behave lawfully, or even that the advice given will always be correct, these cases tell us that public policy favors a legally- advised executive officer.
Perhaps the most important section of the Steele case is the Judge's order that directs the council not only to recognize the new attorney as being the valid legal officer of the municipality, but to pay the invoices submitted by that individual. Actually, once the public policy argument is established that a mayor or statutory manager should be entitled to an attorney of his or her choice, the person so selected might also be entitled to compensation under a variety of legal concepts like quantum meruit and the private attorney general doctrine, both of which legal doctrines are used by courts to allow individuals to receive their just compensation even in the absence of specifically- approved contracts. In summary, these cases teach us that the municipal executive, whether mayor, president, or manager, has the right to appoint the regular municipal attorney, whether that lawyer or law firm functions as an officer or an independent contractor. Courts will not allow council majorities to interfere with the duties of that attorney or the attorney's reasonable compensation.
If the majority of a board or council have sufficient votes to override a mayoral veto, they may create the position of legislative counsel and assign to that individual or firm a wide range of duties which will assist the local legislators. A mayor who refuses to sign a check for such a legislative counsel will find that the courts will order him or her to do so (4).
Both executive and legislative governmental officers function better when they receive adequate legal advice. In those communities which need this double representation, the ultimate cost of all legal fees may be far less than what the community would pays in damages to third parties if it engages in inconsistent, or hesitant, decision-making. This can easily happen if one or the other principal branches of government feels that it has not been receiving adequate legal advice. In some instances, if the different branches receive the same legal advice from both of their attorneys, the involvement of two attorneys may actually foster a more harmonious relationship between the factions. While these new cases do not provide us with all of the answers, they provide us with a solid framework for the resolution of disputes involving municipal attorneys.
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(1) The terms "mayor" and "president" are both applicable and interchangeable for the purposes of this article, as are the terms "city council" and "board of trustees." For consistency, we refer to the mayor or president as "mayor" throughout this article, and refer to the city council or board of trustees as "council."
(2) The cases now make it clear that the mayor may appoint an attorney or a law firm to serve in the role of the municipal attorney. For the purposes of consistency, when we refer to "attorney" we also intend that term to include any law firm which may be appointed to serve as the municipal attorney.
(3) Municipal attorneys can serve in one of two capacities. Some municipal attorneys are actually officers of the community. As officers, they are appointed for a specific term (not exceeding that of the mayor), they take an oath, post a bond and file an annual ethics statement. The majority of attorneys who serve municipalities, however, while often called city or village attorneys, actually function as independent contractors. They are neither officers nor employees and do not receive benefits or contribute to IMRF. They perform their services for the community under a contract or agreement which typically outlines the scope of their services and their compensation.
(4) The practical issue of the compensation of a legislative counsel selected by a simple majority of a council, in a community where the mayor has veto power, which is not likely to be overridden, has not yet been resolved.
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