Ethics for Municipal Lawyers CLE Seminar Kentucky League of Cities Convention October 6, 2006

1. Ethics for Municipal Lawyers CLE SeminarKentucky League of Cities ConventionOctober 6, 2006 Phillip M. Sparkes Director and Assistant Professor of Law Local Government Law Center Salmon P. Chase College of Law Northern Kentucky University

3. Topics • I. California’s Code of Ethics for City Attorneys – A Harbinger of Things to Come?  • II. The Ethical Implications of Garcetti v. Ceballos • III. The Municipal Attorney, Confidentiality, Privilege, and Ross v. City of Memphis  • IV. Cases and Opinions (time permitting) • V. Random Thoughts (time permitting) 

4. California’s Ethical Principles for City Attorneys

6. 141,030 resident, active lawyers 12% of all U.S. lawyers 3.9 lawyers /1000

7. 141,030 resident, active lawyers 12% of all U.S. lawyers 3.9 lawyers /1000 • 11,336 resident, active lawyers • 1% of all U.S. lawyers • 2.7 lawyers /1000

8. Background • Impetus from city managers • Concern about campaign contributions, attorneys wanting to be city attorney, and elections installing new city leadership • ICMA Code of Ethics prohibits city managers from making campaign contributions

9. Chapters on : Defining the client Conflict of interest Interests in contracts Outside counsel Confidentiality www.cacities.org/attorneys

10. Ethical Principles for City Attorneys • Adopted October 6, 2005 • City Attorneys Department Business Session • Preamble • A city attorney occupies an important position of trust and responsibility within city government. Central to that trust is an expectation and commitment that city attorneys will hold themselves to the highest ethical standards. Every effort should be made to earn the trust and respect of those advised, as well as the community served. • The City Attorneys Department of the League of California Cities has therefore adopted these ethical principles to: • Serve as an aspirational guide to city attorneys in making decisions in difficult situations, • Provide guidance to clients and the public on the ethical standards to which city attorneys aspire, and • Promote integrity of the city and city attorney office.

11. 3 Basic Parts • Preamble setting purpose and goals • Serve as an aspirational guide to city attorneys • Provide guidance to clients and the public on the ethical standards to which city attorneys aspire • Promote integrity of the city and city attorney’s office • 10 Core Ethical Principles • Includes explanation why the principle is significant to the practice of municipal law • Examples of how the principles apply

12. Rule of Law Client Trust No Politicization No Self-aggrandizement Professionalism and Courtesy Policy versus Law Consistency Personal Financial Gain Hiring by and of City Attorneys Professional Development Fundamental Principles

13. Rule of Law • “… report up the chain of command to the highest level of the organization that can act on the client city’s behalf.” • Model Rule of Prof”l Conduct 1.6(b)(2) & (3) • 2003 changes permit disclosure of certain confidential information • MRPR 1.13(b) • 2002 changes provide “… the lawyer shall refer the matter to higher authority…”

14. Client Trust • “The city attorney should be clear with individual council members and staff on the extent to which their communications with the city attorney can and will be kept confidential. The city attorney should be especially clear when confidentiality cannot be lawfully maintained.” • SCR 3.130(1.6) Comment 6 • The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.

15. No Politicization • “The city attorney or persons seeking to become city attorney should not make campaign contributions….” • 2002 MRPR Rule 7.6 • A lawyer shall not accept a government legal engagement if the lawyer makes a political contribution for the purpose of obtaining it

16. Professionalism and Courtesy • Ky. Code of Professional Courtesy • http://www.kybar.org/ • Louisville Bar Assoc. Creed of Professionalism • http://www.abanet.org

17. Policy versus Law • “The city attorney may offer input on policy matters, but should make clear when an opinion is legal advice and when it is practical advice.” • Advice on policy may be confidential (i.e., relating to representation of a client), but not necessarily privileged (i.e., for the purpose of seeking, obtaining, or providing legalassistance to the client)

18. Consistency • City attorney should not represent private clients if that representation will necessitate advancing legal principles adverse to city’s interest or hire outside counsel that advances legal principles adverse to city’s interests • Significant differences between SCR3.130(1.11) and 2002 MRPR 1.11 • KBA E-421 (2003) • Commonwealth Attorney – Condemnation Action • In re Drake, 195 S.W.3d 232 (Tex. App. 2006)

19. Personal Financial Gain • “The city attorney should never use the power, resources, or prestige of the office for personal gain.” • KRS 65.003 • Codes of ethics for local officials and employees • KRS 61.252 • Prohibition against city officers and employees contracting with city

20. Professional Development • Strong tradition of assisting their colleagues through formal or informal sharing of their knowledge and expertise • Attorney listserv – Municipal Code Corporation • http://www.municode.com/ • Chase Local Government Law Center

22. II. Ethical Implications of Garcetti v. Ceballos

23. Court Narrows Speech Rights • Garcetti v. Ceballos,___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689, 74 USLW 4257 (May 30, 2006). • U.S. Supreme Court recently ruled that statements made by government employees in the course of their official duties are outside the protection of the First Amendment.

24. Classical approach • Treat the government and the individual equally as free agents, mutually competent to determine their own best interests • Measure the terms of the arrangement according to general principles of the common law of contract • Employee is free to contract away constitutional rights

25. Classical approach summed up • A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. • McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892) (Holmes, J.) • Approach prevails through ’50s and ’60s

26. Purist approach • The First Amendment disallows government to impose any restrictions on free speech by contract or otherwise. • Any terms, conditions, regulations, or restrictions on free speech, insofar as they come from government, are constitutionally void. • Regards the common law of contracts as essentially irrelevant.

27. Modern approach • Treat the First Amendment as applicable, then try to figure out what that means in particular circumstances

28. The First “Modern” Case • Pickering v. Board of Education, 391 U.S. 563 (1968) • Classical approach “unequivocally rejected” • Public employees do not relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest connected with the operation of the governments in which they work.

29. Lessons from Pickering • 1. Employer-employee relationship still dominates analysis • State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.

30. Lessons from Pickering • 2. Pickering balancing test • “The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs though its employees.”

31. Matters of Public Concern • Connick v. Myers, 461 U.S. 138 (1983). • “We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”

32. Lessons from Connick • Public concern question is the threshold issue • Matter of public concern is narrowly defined • Speech must 1) relate to a matter of political, social, or other concern to the community 2) as determined by content, form, and context of the statement

33. Promoting Efficiency • Rankin v. McPherson, 483 U.S. 378 (1987) • “If they go for him again, I hope they get him.” • Comment addressed a matter of public concern • A threat is not protected, but this is not a threat

34. Promoting efficiency • Rankin v. McPherson • On balance: • no evidence of interference with the efficient functioning of the office • no danger that the employee discredited the office by making the statement in public • no demonstration of a character trait that made her unfit to perform her work • Dissent: Can’t ride with the cops and cheer for the robbers

35. Experience with Pickering/Connick • Pickering balancing test involves courts in a difficult, highly fact-intensive inquiry • 5-4 splits in the Supreme Court • Connick (in favor of employer) • Rankin (in favor of employee) • Garcetti

36. Garcetti v. Ceballos • “The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.”

37. Garcetti v. Ceballos • “The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. … We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

38. Majority Opinion • Case is about affording government employers sufficient discretion to manage their operations. • Employer is free to control speech that the employer itself commissioned or created • “Official communications have official consequences.” • need for substantive consistency and clarity • ensure that communications are accurate, reflect sound judgment, and promote the employer’s mission.

39. Not to worry • Public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” • The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.

40. Not to worry • Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. • These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions

41. Dissents • Speech in the course of official duties gets First Amendment protection “Sometimes,” not “Never” • “The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.” • A public employee can wear a citizen’s hat when speaking on subjects closely tied to the employee’s own job

42. Dissents • Wrong to regard any statement made within the scope of government employment as the government’s own speech • Legislative protections are a “patchwork,” not a “powerful network”

43. Grievance trap • Public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” • If employers create a mechanism for airing internal dissent and require employees to use it, employees risk that the courts will treat that speech as in the course of official duties and thus unprotected. • Givhan v. Western Line Consol. Sch. Dist., 439 U. S. 410

44. The duty of loyalty trap • Agent has duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him • Restatement of Agency (2d) § 381 • Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with the agency. • Restatement of Agency (2d) § 387

45. Duty of loyalty trap • We thus have no occasion to articulate a comprehensive framework for defining the scope of an duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. The proper inquiry is a practical one. • Springer v. City of Atlanta, • 2006 WL 22461888 (N.D.Ga. Aug 4, 2006).

46. Whistleblower laws • Majority:“Powerful network” of legislative enactments—such as whistle-blower protection laws • Dissent: “the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not showing that worries may be remitted to legislatures for relief.”

47. Whistleblower laws • Whistleblower Protection Act of 1989 • KRS 61.102

48. Federal Act • Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001) • Complaints to a supervisor about the supervisor’s conduct are not “disclosures” • Disclosures made as part of the employee’s normal duties are not covered. • “All government employees are expected to perform their required everyday job responsibilities ‘pursuant to the fiduciary obligation which every employee owes to his employer.”

49. Kentucky claim • Elements: • (1) the employer is an officer of the state or one of its political subdivisions; • (2) the employee is employed by the state; • (3) the employee made a good faith report of a suspected violation of a state statute or administrative regulation to an appropriate body or authority; and • (4) the employer took action or threatened to take action to punish the employee for making this report or to discourage the employee from making this report.

50. Kentucky act • Cabinet for Families and Children v. Cummings • 63 S.W.3d 425 (Ky. 2005) • Grant recipient an employee for purpose of act • Gaines v. Workforce Development Cabinet • ___ S.W.3d ___, 2005 WL 3002996 (Ky. App. 2005) • Act covers internal whistleblowing