Elect or appoint?

Sparks residents are voting on whether to continue electing their city attorney or not. The ballot measure is just a straw poll. The change would still have to be made by the Nevada Legislature, which has already made every city attorney in the state except Reno and Sparks appointive.

Public counsel—lawyers who serve the public—are mostly appointive, from the U.S. attorney general to local levels. But state attorneys general and local prosecutors are usually elected.

When the Nevada Legislature considered a 2017 bill to make the Reno and Sparks city attorneys appointive, the Sparks City Council opposed it, but only because it had not come from the council’s own initiative.

During a hearing on that bill, Clark County Sen. Richard Segerblom—who originated the bill—argued that having city attorneys responsive to the public is not a good idea, that the city attorney should be responsive to the city council: “It is a question of whether the current structure of electing the city attorney is appropriate in this day and age where people would want, in my opinion, their elected officials to have confidence in the legal advice, attorney-client privilege, and that the city attorney does not report to any constituency. … [E]lected city attorneys do answer to their constituencies. It is a policy issue.”

Washoe Sen. Julia Ratti, a former Sparks city councilmember, made a similar argument: “We do not get the benefit of neutral, nonpartisan legal counsel that is so critical to the governing operations of a city through popularity contests. It is different and distinct from a mayor or a city councilmember who are truly representing the people. In the case of city attorneys, they should be representing the city itself.”

Some governing bodies prefer appointive public counsel because they think they will get advice that is more congenial to the policy sentiments of the members of that body. The Washoe Airport Authority originally was advised by a deputy of the elected district attorney, Maureen Griswold. Then, it switched to choosing its own lawyer from local law firms. The consequence was not favorable. Some members of the board felt that the new counsel aligned himself with one faction on the board and the staff.

“Oh, the counsel was, I think, totally in with staff,” said former board member Tina Manoukian. “I think there was a real conflict with staff, and I feel that counsel told us what staff wanted us to know. … I think things were a lot better when we had Maureen.”

This debate is taking place at a time when the role of public counsel has been evolving for many years away from its traditional role. Many public counsel argue that cases arise when they must represent the public against government instead of representing government. Former Alabama attorney general William Baxley has written, “Government, both federal and state, has increased in size and, while becoming involved in more aspects of our private lives, has become more removed from our immediate control. As a consequence, the state’s attorney has had to assume an ambivalent posture in some instances. Quite simply, the actions of governmental entities are now often at odds with the public interest … because a government entity derives its legitimacy from the public, or the people, when the public’s interest is in conflict with that of the governmental entity, the state’s attorney is obligated to represent the public.”

This evolution has become acute enough that a former federal judge, Bruce Einhorn, has proposed that the U.S. attorney general become an elective position, particularly because of dubious machinations in the Department of Justice during the Bush II and Trump administrations.

“Enough is enough,” Einhorn wrote. “The attorney general is head of the U.S. Department of Justice. … He should be the nation’s shield against those in power who use their positions for corrupt purposes, who try to skirt the rule of law and who attempt to exceed the constitutional limitations of their offices.”

This raises another question—whether appointed lawyer who depend for their jobs on those who appoint them will provide advice based on law or on what the employer wants to hear. It is easier for independent, elected counsel to tell a public body what it does not want to hear.

Former federal financial regulator Bill Black once said sardonically, “People who will give you the wrong answer—but the answer you want—are invaluable.”