This Fall, voters will flock once again to the polls to elect their County Supervisors, Legislators, Aldermen, Town and Village Board members, and other local officials. In schools, town halls, and firehouses, we’ll humbly pull the levers (or, more often lately, feed ballots into an electronic machine). We’ll leave the polling place feeling satisfied that for all its faults, our democratic system still functions as originally intended.
Then, around the first of the year, our freshly-elected officials will take the oath of office. The slogans and promises of their campaigns will still be ringing in our ears... But then the hard work of legislating begins.
After each election cycle, our bright-eyed-and-bushy-tailed new legislators face a dizzying array of budgetary constraints, committee assignments, grant applications, lawsuits, FOIL requests, statuatory requirements, upset citizens, motions, seconds, resolutions, and amendments. Just mastering a public body’s Rules of Order can seem like a herculean task.
Into this morass of regs and reqs strolls the Town (or City) attorney. Feeling besieged and even helpless, elected officials turn to their lawyer, for guidance and instruction. On the face of it, that’s necessary and proper. But over time, that need can become a dependence.
If you attend a local government meeting, one usually finds the lawyer—not the elected officials—doing much of the talking. In many towns, even trivial decisions seem to require a legal consultation, including the dreaded retreat into a closed-door “executive session” to discuss legal options out of the public eye.
The effect is to create a system of legislation by lawyer. Roll-call votes are still cast by elected officials. But for anything even remotely controversial, the “call” effectively gets made by their attorney.
Unlike politicians, who typically are built for combat, lawyers are built for compromise. Lawyers (with exceptions) tend to be conservative by nature, in the more traditional meaning of conservative. Deflecting controversy, assuaging governmental clients’ fear of lawsuits, not rocking the boat, protecting political patrons, and keeping their jobs are paramount. This tendency results in the blunting of candidates’ optimistic campaign promises of change, progress and reform. “It’s time for a change” soon becomes "You might get sued if you change that.” Debates center around how to play things legally safe, rather than finding bold, creative solutions.
Moreover, while politicians come and go, attorneys (or at least their firms) tend to stick around. The faces on your local Board or Council may change, but the cast of lawyers rarely does. As insurance against major electoral changes, many firms that rely on the sinecure of municipal work deliberately keep both Democratic and Republican lawyers on their rolls. When the donkeys throw the elephants out, or vice versa, the firm still retains the town’s business. They just swap out the partner from the losing party, and bring in another from the winning side.
Worse, conflicts of interest arise when the same handful of attorneys wear multiple governmental hats. In each county of the Hudson Valley, usually just two or three firms represent most of its constituent towns.
Consider a couple of local examples:
In a jarring 2009 voting rights fight in Columbia County one attorney initially represented both the Town of Taghkanic and the County Board of Elections, whose positions were at odds. At first the lawyer in question argued that his dual role was proper. It took a major public outcry and an ethics complaint to finally force him to pick, grudgingly, one client or the other.
More recently in the City of Hudson, most major decisions about the controversial future of the City’s waterfront have been made privately by the City Attorney and an outside planning firm. A hefty chunk of their work was underwritten by an industrial company with a big stake in the outcome. Meanwhile, consultation with the Hudson Aldermen has been token at best, with months or even years passing without the ostensible "lead agency" being updated on its own plan’s progress. By the time of each sporadic update, so much water (and technical mumbo-jumbo) has gone under the bridge that elected officials have little choice but to take their lawyer’s word for it that her decisions are correct.
Clearly, there are times when legal advice is useful, and even indispensable. But when a municipal lawyer becomes the de facto chief policy-maker, democracy is undermined. So what’s to be done about it?
• First, we need a change of mindset among elected officials, in which legal counsel is sought only when truly necessary, not as a matter of course;
* Second, we need a corresponding change of mindset among attorneys, that they exist to help officials actively achieve their campaign goals, rather than covering their rumps;
* And third, we need term limits for municipal lawyers and firms, so that counsellors don’t become political institutions unto themselves.
Thomas Jefferson once remarked that if we only take action when no lawyer objects, we’ll never take action at all. When left up to lawyers, politics becomes not the art of the possible, but of the impossible.
Photo: Joseph A on Flickr
