June 17, 2003
Re: Council’s ability to hire consulting attorney
Dear City Attorney,
Sid Hemsley has informed me that you requested more legal research into the authority of the
City Council to hire a consulting attorney. After reviewing provisions in McQuillin’s Municipal
Corporations, conducting an extensive search on Westlaw, and reading numerous court opinions
from various states, I have determined that the answer to whether or not the council has this
authority is unclear. Following is a summary of the legal authority I have consulted, with
relevant quotations.
For background information to assist you in weighing this authority, I note the charter provisions
addressing the position of City Attorney, found at Article IX, Section 2, which state in part that
the City Attorney:
shall direct the management, under supervision of the City Council, of all litigation in
which the City is a party, including the function of prosecuting attorney in the City Court
when it is necessary; he shall represent the City in all legal matters and proceedings in
which the City is a party or interested, or in which any of its officers are officially
interested; attend all meetings of the City Council, advise the council, its members and
committees, and the heads of all departments as to all legal questions affecting the City’s
interest, and shall approve as to form all contracts, deeds, bonds, ordinances, resolutions
and other documents to be signed in the name of or made by or with the City.
Article II, Section 1 of the City Charter contains the provisions addressing the corporate powers
of the City Council, and includes the following language:
(7)
(9)
To contract and be contracted with.
To expend the money of the City for all lawful purposes.
The Charter further provides that the Mayor shall appoint the City Attorney, at Article III,
Section 2. An ordinance was passed by City Council, No. 99-1884, which provides that the City
Attorney is an employee of the City, but is still to be appointed by the Mayor, confirmed by the
City Council, and shall serve at the pleasure of the Mayor.
Article VI, Section 1 provides that the City Council shall set the salaries of numerous officers
and employees listed, including the City Attorney, and may further “define the duties of all City
officials not inconsistent with this Act.” This section further states that the City Council “shall
establish and make provisions in the appropriation ordinance for such officers, agents and
employees as may be necessary...”
The earliest Tennessee case which addresses the power of a municipal governing body to employ
counsel is City of Memphis v. Adams, Dixon & Pike, 56 Tenn. 518 (1872). A law firm brought
suit against the city seeking payment for services rendered in the course of litigation in Arkansas,
concerning stock owned by the city. The Supreme Court states:
The question now being considered, however, is, whether the Corporation itself, through
its Board of Directors, had the power to employ counsel to attend to the interests of the
Corporation in another State? It may be conceded that there is no express power in the
City charter, authorizing the Corporation to employ counsel for the specific purpose of
prosecuting suits outside the State. But there is express authority for contracting
generallyBsuch a power is essential to the existence of the Corporation and is inherent in
it....These incidental powers are to be exercised by the Board of Aldermen, and with
discretion, for the benefit of all citizens of the town or city. In carrying into effect the
powers expressly granted, or to effect the purposes of its creation, there must be also
implied powers in the corporation, which are to be exercised under the discretion of the
Trustees of the Board of Aldermen....This doctrine as to the exercise of implied powers
by corporations is necessarily confined to cases, in which their exercise is necessary in
carrying out the legitimate purposes of its institution.
The Court concluded that the Board had the implied power to hire counsel to protect its interest
in litigation in another state. No specific charter provisions are discussed in the opinion, other
than the general power to enter into contracts.
Another Tennessee case addresses the power of the mayor to hire legal counsel to represent the
city on a contingency fee basis, Metropolitan Gov’t of Nashville v. Fulton, 701 S.W.2d 597
(Tenn. 1985). In the Fulton case, a citizen of the city brought action challenging the authority of
the mayor to hire counsel to seek collection of funds owed the city, when the contract for the
attorney’s services provided that he be paid a contingency fee for such collection actions. The
City Council passed a resolution authorizing the hiring, and the Plaintiff claimed the Council
should also be required to approve of the settlements reached in the suits and the payment of the
contingency fees. The Court held that the plaintiff had no legal standing to bring the suit, but did
note that the hiring of counsel did not violate any provisions of the city charter.
A Tennessee case which was appealed to the United States Supreme Court, City of Memphis v.
Brown, 87 U.S. 289, 22 L. Ed. 264 (1873), addresses the ability of a contractor for the city to hire
outside counsel for collection of unpaid accounts. The ordinances of the city provided that the
city attorney prosecute all suits to which the city is a party, or in which the city is interested.
Certain contractors were charged with the duty of collection of unpaid accounts and, “if not paid
within ten (10) days,” said accounts, “or so much as shall be due and unpaid, shall be placed in
the hands of the city attorney for collection under the city charter.” Brown, p. 319. Testimony
was heard at trial which revealed that the contractors were urged by the mayor and city attorney
to take whatever action was necessary to collect the amounts, and the contractors accordingly
hired attorneys to prosecute the matter, instead of delivering the accounts to the city attorney as
provided in the contract. Although the attorneys employed for collection discussed the matter
with the mayor and city attorney, the Court held that the contract was never modified so as to
allow the hiring of outside counsel and provide for any liability of the city to pay for such
services. Although the Court noted the ordinance provisions generally concerning the
requirement that the city attorney prosecute all suits on behalf of the city, the case was decided on
contract principals and is not particularly helpful with the issue currently under consideration.
The cases noted above are helpful, but are not directly on point with the current situation in your
City. The City of Memphis v. Adams, Dixon & Pike opinion reveals that cities have implied
powers to hire counsel to protect the city’s interests, but such implied powers exist in the absence
of express powers in the charter, which is not the situation in your City. As none of the
Tennessee cases on the ability of a city to hire outside legal counsel are on point, it is necessary
to explore other legal authority, from treatises on municipal law in general to case law from other
jurisdictions.
In his book Municipal Attorney Law, noted municipal law expert Charles S. Rhyne states:
the creation of a law department or city attorney with the duty to represent the city and all
of its departments is held to be a restriction upon the implied power of the agency or
board to employ special counsel.(p. 31)...Though a municipality may have an established
legal department or city attorney, the municipal council may find it necessary or
advantageous to employ outside counsel to assist the city attorney or represent the city.
As a general rule, a municipality may employ special counsel to assist the city or
municipal attorney when such services are needed, unless such employment is expressly
prohibited by charter or statute. (p. 33)....Many courts have held that a municipality has
an implied right to employ outside counsel. It has been held that the city council may
employ outside counsel to assist the city attorney in the prosecution or defense of an
action, or it may secure the opinion of outside counsel on legal matters, unless expressly
or impliedly prohibited from doing so. (p. 34)....Some courts have held that a special
counsel may be hired regardless of the duties of the city attorney. Thus in Sutherland v.
Winnsboro, 225 S. W. 63 (Tex. App. 1920), the court held that a municipality may, in its
implied discretion, employ outside counsel to represent the municipality before the
courts, regardless of whatever duties may have been assigned to the city attorney. (p. 35).
Mr. Rhyne’s observations concerning the issue are consistent with the treatment received in
McQuillin’s Municipal Corporations, 3d Ed., Vol. 10, ' 29.12, in which the legal treatise states:
According to authority, where the corporation has regular counsel, charged with the duty
of conducting all of the law business in which the corporation is interested, contracts for
additional or extra legal services are unauthorized. This rule has frequently been applied
to the engagements of attorneys by municipal boards, commissions, departments, or
officials, for the performance of services within the proper sphere of activity of the city
attorney, or city law department....However, there is ample authority to sustain the
proposition that additional or extra counsel may be employed in special matters and suits,
notwithstanding the corporation has officers charged with the duty of attending to all
legal affairs in which the corporation is interested.
Of the numerous cases cited by Mr. Rhyne and McQuillin’s, following are brief notations and
salient quotes from those cases which are pertinent to the issue at hand:
Thwing v. City of International Falls, 180 N.W. 1017 (Minn. 1921) - The city attorney is charged
under the charter with the duty of conducting all civil suits, prosecutions and proceedings in
which the city has an interest. Under state statutes, the county attorney is charged with the duty
of conducting proceedings for the collection of taxes. The court opined that the city had no
authority to hire an attorney to assist the county attorney in tax suits.
Scott v. City of Jamestown, 217 N.W. 668 (N.D. 1928) - Under statute, the city attorney has the
exclusive duty to represent the city in all matters. “It is the generally accepted rule, in the
absence of statutory provisions to the contrary, a municipality has the implied power to employ
additional counsel, if, in the opinion of the city council or other proper officials, the interests of
the city or other municipal corporation require such assistance.” (p. 672). Counsel fees were
appropriately paid from “miscellaneous” item in budget.
Clark v. Smith, 250 A.D.233, 294 N.Y.S. 106 (NY 1937) – “It has long been the settled law of
this State, and in other jurisdictions, that a municipal corporation has implied power to employ
counsel to render services in matters of proper corporate interest, including the prosecution and
defense of suits against municipal officers for acts done on behalf of the corporation while in the
honest discharge of their duties, whether or not there is any statute giving such direct authority.”
(N.Y.S., p. 109). Court concludes such power is not limited by appropriations statute.
Incorporated Village of Farmingdale v. Karp, 283 N.Y.S. 2d 267 (NY 1967) - Village board of
trustees “may employ an attorney other than the Village Attorney to perform special service and
to pay a reasonable compensation therefore.” (p. 269).
Puka v. Greco, 464 N.Y.S. 2d 349 (NY 1983) – “Notwithstanding lack of specific statutory
authority, a municipal board or officer possesses implied authority to employ counsel in the good
faith prosecution or defense of an action undertaken in the public interest, and in conjunction
with its or his official duties where the municipal attorney refused to act or was incapable of or
was disqualified from acting.” Absent allegation or proof that city attorney refused to act, was
incapable or disqualified from acting, board lacked proper authority and attorney’s contract is
void.
Godard v. Campbell, 196 So. 814 (Fla. 1940) - Cites McQuillin Municipal Corporations, 2d Ed.,
' 1276 “Where the law does not make it the duty of the official to perform the particular legal
services required other attorneys may be employed for this purpose at the expense of the public.
However, authority is not wanting to sustain the proposition that additional or extra counsel may
be employed in special matters and suits, notwithstanding the corporation has officers charged
with the duty of attending to all legal affairs in which the corporation is interested.” Hiring of
special attorney for prosecution of tax suits lawful.
Creighton v. City of Santa Monica, 207 Cal. Rptr. 78 (CA 1984) - City attorney conducts all
legal business of the city and is responsible for all litigation. Rent Control Board sought to hire
special attorney. Council passed ordinance giving board authority to hire legal staff. Although
ordinance was in conflict with charter provisions, Court looked to state statute under which rent
control board was established, and determined it was an elected and independent board in need of
independent legal advise. “The City Attorney, however, provides legal advice to the city’s
appointed boards and commissions. For the most part, these municipal agencies are not
empowered to initiate legal action. The city council therefore has control of all litigation
concerning those agencies, and the council and its members constitute the “client” whom the City
Attorney represents when the city is a party to legal action. Under the circumstances, it is the
innate characteristics and functions of the Rent Control Board that entitle it to employ an
independent legal staff.” (p. 84).
City of Birmingham v. Wilkinson, 194 So. 548 (Ala. 1940) - Court cites 43 C.J. p.890, ' 1620
“the employment of the other counsel is improper and unauthorized where the municipal attorney
or law department is charged by charter or statute with the conduct of all the municipal law
business, and there are no special circumstances which make the calling in of outside assistance
vitally necessary.” The employment of a special attorney was challenged by the city law
department as violative of the Civil Service Act, but no specific language was contained in the
charter which gave the city attorney authority over all litigation involving the city or city
interests. The court ruled that the employment of a special attorney was not improper.
Ex Parte City of Birmingham, 624 So. 2d 1018 (Ala. 1993) – “The City of Birmingham has the
authority to retain and to compensate attorneys to further the City’s interests.” (p. 1021). No
charter provisions are discussed, and case was dismissed for failure to state a claim upon which
relief may be granted.
Hanna v. Rewkowski, 365 N.Y.S. 2d 609 (NY 1975) - State statute provided that city attorney
“be and act as legal adviser of the common council and of the several officers, boards and
departments of the city.” Mayor filed a declaratory judgment action against the council,
represented by the city attorney, challenging the passage of an ordinance authorizing the council
to hire its own attorney. Court found that hiring of separate counsel by the city council was
authorized “where there is a clear conflict of interest,” as in this case.
Krahmer v. McClafferty, 282 A. 2d 631 (Del. 1971) - City council sought to hire independent
attorney. Court ruled that where city attorney had previously advised mayor that ordinances in
question were contrary to city charter, council was entitled to retain independent attorney to
represent it, despite charter provision which gives the City Law Department exclusive control of
all litigations involving the City. Court determined that city council had taken a position adverse
to the mayor, and that therefore the City Attorney would be disqualified from representing the
council due to the inherent conflict of interest which exists when branches of the government are
at odds. As an appointee of the mayor, the City Attorney is part of the executive branch of the
government, and cannot represent the legislative branch when a conflict arises.
None of these cases are exactly on point with the current situation in your City, but they are
instructive as to specific issues. If the city charter contains provisions indicating that the city
attorney shall handle all litigation and address all legal issues, in my opinion, the city council
may only hire an attorney if the city attorney is unavailable or unable to handle the matter. This
additional counsel may not usurp the city attorney’s authority, or take over the duties assigned to
the city attorney by charter. In my opinion, the council may only hire an attorney to assist the city
attorney or to consult on a very specific issue, after the council has determined that either an
emergency exists which necessitates the hiring, or the city attorney is unavailable or unable to
perform the services needed.
It appears in light of the legal authority cited herein that the city council may not pass an
ordinance enabling the council to hire an attorney for general consultation. The council must
rather identify a specific legal action, lawsuit, or issue on which the council desires to hire an
attorney for consultation, and concerning which the city attorney either has a conflict of interest
or lacks specific expertise necessary in the matter. A good example would be the hiring of bond
counsel. In my opinion, the city council does not have the authority to retain an attorney for
general consultation.
I hope this information is helpful. Please feel free to contact me should you have any questions
or need further information.
Sincerely,
Melissa A. Ashburn
Legal Consultant