Bizarro World: City Attorney Publicly Accuses His Own Client Of Negligence

Last Wednesday, City Attorney John Russo and City Auditor Courtney Ruby jointly published a “My Word” submission in the Trib, wherein they accused the City Council and City Administrator of essentially doing nothing to modify or improve policies and procedures related to record retention. As a result, they claim, the City has lost tens of thousands of dollars, and is at risk for much more in terms of potential liability. http://www.insidebayarea.com/opinion/ci_13602172. Now, I can understand the City Auditor calling the City to task for such an issue. But the City Attorney?

Under California law, an attorney must have “undivided loyalty” to his client, regardless of the circumstances. Flatt v. Superior Court (1994) 9 Cal. 4th 275, 289. An attorney must “represent his client zealously within the bounds of the law.” Hawk v. Superior Court (1974) 42 Cal. 3d 108, 126. According to a publication by the League of California Cities, “the city attorney represents the city as a whole….The city attorney’s duty of loyalty and confidentiality is owed to the city and the council as a whole, rather than to an individual….Everyone is on the same team. When the city attorney identifies potential legal problems, it is to protect the city.”

So I have to say it strikes me as particularly bizarre that John Russo would accuse his own clients of creating potential liability by failing to come up with appropriate record retention policies. Moreover, isn’t it his office’s responsibility to come up with proposed policies and procedures that comply with the law? I thought public record retention requirements were outlined in Government Code Section 34090 et seq. Couldn’t Russo’s office just draft some model policies and put them before the appropriate committee for consideration? Maybe that’s happened, but there’s no mention of where the hang-up is in the opinion piece.

I should also point out that it is Russo’s office that is responsible for administering and complying with the Public Records Act, and it has been doing a lousy job. The law requires that the City respond to all Public Records Act requests within 10 days. They don’t actually have to produce the records, but they have to acknowledge receipt of the request, and specify an approximate date when the records can be made available. I’ve submitted about a dozen requests to the City in the last year, and the City Attorney’s Office has practically never complied with the most basic requirements. I tried giving them suggestions on how to improve the process (since as a public sector lawyer this is something I have to deal with on a regular basis), but they still didn’t get the message. In exasperation, I filed a Public Ethics Complaint, outlining each and every violation in graphic detail. The complaint is currently pending. So again, I find it ironic that the City Attorney would be so full of righteous indignation on the issue of public records.

What appears to be going on here is a serious lack of communication and cooperation, and as a result, nothing is getting done. The Trib submission claims that both Ruby and Russo are the City’s “watchdogs.” Ruby is supposed to be a watchdog. But the City Attorney’s job is to represent the City, not to be a “watchdog.” Hey, I’m all for public shaming, but that really should be a last resort, particularly as to people who are supposed to be on the “same team” and working together to come up with solutions for the collective good.

The same lesson could be applied toward the ongoing fight over implementation of Measure Y. The City drafted Measure Y and campaigned for its passage. So why are they fighting me, when all I’m asking is that they just implement it? We should all be on the same team. Stop fighting with each other, and with me, and let’s all put our energy to better use to come up with a solution.