Imagine a lawyer walking into a courtroom intending to represent the prosecution and the defense. It would be preposterous.
But that's akin, some say, to what is happening in Colorado Springs' city government, wherein City Attorney Chris Melcher is expected to represent all branches of the government — even when they're at odds.
The setup, established in the City Charter, means that City Council is under the thumb of a lawyer they didn't hire and can't fire. And it's worked out well for Mayor Steve Bach, who did do the hiring and can do the firing. With Melcher writing the legal opinions, Bach has secured vast powers in city government.
Why should you care? Because some Councilors argue that the setup is undermining what little authority they have left under the strong-mayor form of government, which replaced the Council-city-manager form when Bach took office in June 2011.
Council serves as the legislative branch, which under the separation-of-powers doctrine is supposed to be independent from, yet equal to, the executive branch. Council adopts ordinances and passes the budget. It also represents the people's voice in government, with six people representing specific districts of the city and three the city at-large.
Now, as Council struggles to assert its authority, the citizens' biggest asset, Colorado Springs Utilities, hangs in the balance.
Bach has said repeatedly and publicly that he wants to consider selling the power utility and scrapping the Martin Drake Power Plant downtown. (Bizarrely, he's also denied having said both of those things.) It's not clear what he'd like the cleared land under Drake to be used for, though he's mentioned a downtown sports stadium, Olympic museum and convention center.
Bach also has talked of Utilities, with its $4.4 billion in assets, as an obvious target from which to squeeze money for the city's stormwater drainage tab, which a regional task force puts at $686 million. The arrangement would be convenient for the mayor, given that while running for office, he pledged not to raise taxes. (As for how a sale or some other maneuver to divert money from Utilities will affect utility rates, Bach hasn't publicly addressed that question.)
Regardless, a majority of Councilors hold a very different vision. Council is looking into decommissioning Drake, but perhaps 15 years out. As the Utilities Board, on which Bach has no vote, Council has invested millions in new pollution-control equipment for Drake made by home-grown Neumann Systems Group; for committing to Neumann, the city will get a cut from future sales. And most Councilors want to preserve local control over Utilities, a key economic development driver due to its low-cost, reliable service.
The two visions are diametrically opposed. Yet to achieve either, key decisions will go through the city attorney.
Since Bach hired him for his first municipal job in 2011 ("The man in the middle"), Melcher has taken steps and issued legal opinions that have expanded the mayor's authority and shrunk Council's say-so on a wide range of issues. Those include the budget, panhandling, red-light cameras, stormwater and more ("Melcher's law").
Some experts say that since the mayor, Councilors and the city attorney all work for a single entity — the city — there literally can't be a conflict. Melcher subscribes to this school of thought. He chose to answer most of our questions via e-mail, and in those written responses says he serves "all the elected representatives of the City as they conduct the business of the City."
The mayor shares that view, saying in his own written response to questions: "Our City Charter specifies that we have one City Attorney who assists Council, Mayor, Colorado Springs Utilities, Memorial Hospital and all other City enterprises."
But other parties contend this doesn't work. Among them is Councilor Val Snider, who says the legislative branch is being "neutered." Comments his colleague, Bernie Herpin, "We didn't change the form of government from council-manager to mayor-rubber stamp."
In our current form of government, the mayor appoints the city attorney, and Council confirms the appointment. As long as the mayor and Council agree, it's clear sailing from there. But as anyone who's read an Independent over the past 18 months knows, Springs Councilors and the mayor often disagree.
Since Councilors approved his appointment 7-0 on Sept. 13, 2011, Melcher has often had words with them. Two instances stand out.
One occurred about a year ago, at the Feb. 27, 2012 Council meeting, when Melcher delivered his opinion that Council's authority to override the mayor's veto on budget items pertains only to "major legislative budgetary determinations." Hence, Melcher said, Bach wasn't obligated to follow Council's directive — from a "veto-proof" majority of six — to spend $175,000 on tennis-court repairs and to hire an additional code enforcement officer.
When President Pro Tem Jan Martin asked for another opinion from an independent lawyer, Melcher argued against it.
"The reason you want to hire another lawyer is because you want to get an opinion you like better," he said. "... What Councilmember Martin is suggesting, as I mentioned, I think, would be a disaster. ... It's what lawyers call forum-shopping. ...
"Outside counsel don't get to issue an independent opinion that they think that the law is different than the city attorney's office thinks it is. ... Really the heart of this issue is that Council I think is adjusting to its new role. The city attorney doesn't report to Council. ... It doesn't do the city any good to have two or three different opinions on the same subject."
Bach was more direct. "In the end, the city attorney's opinion trumps all other opinions," he said at that meeting.
Melcher further argued that any attempt by Council to challenge his opinions in court would be "a tremendous waste of resources. I think it would be a failure of government, I think it would be, especially in the first year of this form of government, it would be a really sad commentary that Council and mayor can't work this out." Council heeded the warning, though it's worth noting that later, and without a change of legal opinion, Bach decided to grant Council its veto. (Of the tennis courts, he simply said, "We are going to implement what Council wants to do.")
At the same meeting, Melcher said he believes the Charter gives the mayor authority over all contracts, including those of Utilities. Which, in essence, gives Bach final say in almost anything Utilities does.
Incidentally, the other instance had to do with control of Utilities. Early this year, on Jan. 22, Melcher was to bring Council a ballot measure, sought by a divided Utilities Board (and denounced by the mayor) the previous week, that would have made the board independent and elected by the people, and would have required a two-thirds majority of voters to sell Utilities.
The matter was contentious from the get-go. Angela Dougan and Tim Leigh both argued against the last-minute nature of such an important measure.
Melcher, for his part, complained he had only two business days to do the job, which involved sifting through a stack of paperwork "a foot high." He added that Council rules don't permit him to move ahead with a ballot measure at the behest of two Councilors, referring to President Scott Hente and Martin. (They had proposed the measure, but a majority of board members agreed to consider it at the Jan. 22 meeting.)
Melcher did, apparently, have time to produce a 21-page PowerPoint presentation in which he termed a special election a "waste of money" and argued the measure would "destroy" Utilities, would create a "potential for risky business behavior" and "undermines [the] democratic process" by requiring the two-thirds majority for an asset sale.
The draft measure Melcher had produced on their behalf left Martin furious, because it wasn't in proper form to submit to voters. For one thing, it called for an election in November 2014, instead of later in 2013.
"The documents that we got, I would no more turn over to the citizens ... Anytime Council comes forward with an idea that the executive branch doesn't agree with, then we're stonewalled, just like we have been on this one," she said.
Hente said, "I can't express how disappointed I am with everything," and Councilor Lisa Czelatdko ranted about a lack of legal advice and guidance, and even manipulation.
After Council gave up and everyone left, Melcher issued a statement to the media, but not to Council, giving his reasons why the measure was a bad idea. Which gets to one of the biggest complaints Hente has about Melcher.
"I think my constituents want their elected representatives to weigh in on issues of policy, not appointed individuals," he says, "because we're the ones to be held accountable. What I've always wanted was legal advice, not policy advice."
Melcher replies via e-mail that the Rules of Professional Conduct attorneys must follow allow them to consider "moral, economic, social and political factors, that may be relevant to the client's situation." He goes on to write that the ballot measure could have dealt "significant damage" to the city if it had been "rushed forward."
Mayor-council arrangements across the country have triggered changes to address the city-attorney question. In Indiana, state lawmakers passed a law that allows councils to hire their own attorneys. In Tampa, Fla., the charter was changed to empower the council to choose independent counsel. And in Los Angeles, city attorney was switched to an elected position; though conflicts still may arise under that scenario, the city attorney isn't serving at the pleasure of the mayor.
But there's disagreement among experts about whether a city attorney representing both sides has a conflict of interest.
A 1976 Indiana Law Journal article by Christina McKee calls dual representation "a clear conflict" and says "it is inevitable that the mayor and city council will clash over issues on which the attorney will have been asked to advise both entities."
An Ohio State Law Journal article published in 2005 says that "when the mayor and the council have different interests, an impermissible conflict of interest exists" for the attorney. Author Heather Kimmel also notes that ethical rules require all attorneys to avoid conflicts of interest. A city attorney could remove himself from representing the mayor or the council, but Kimmel notes courts have ruled "when a mayor appoints a city attorney, the city attorney's client is the mayor if a conflict arises, even if the ordinances say that a city attorney must represent the mayor, the council, and all city officials."
So that's one view. But Chuck Thompson, executive director of the Washington, D.C.-based International Municipal Lawyers Association, says via e-mail that since the attorney represents the city, "there is really only one client." Moreover, Thompson says it's a "bad idea" for councils to hire their own lawyers.
"Whenever you get more than one attorney involved, you are likely to get conflicting opinions," he adds. "While those conflicts may help one or another of the sparring entities politically, they do not really help the city. The last thing you want is for the city to be suing itself, so you don't want the council to be able to sue the executive or appear in court to challenge the executive."
Alec Rothrock of Greenwood Village, an expert in attorney ethics, echoes the one-client assertion. "The fact there are parts of the government squabbling with each other doesn't mean he has a conflict of interest with his clients," he says in an interview. "But the trouble for the lawyer is, 'Who do I take instruction from?' And that is the tricky question. The lawyer has to look at things like the city charter to see who trumps who in that situation."
Melcher has looked to the Charter, as well as case law, to determine in various circumstances whether Council or the mayor is the authority. Some Council members certainly view the Council as a client that should be separate from, not subjugate to, the mayor. And the Rules of Professional Conduct, to which lawyers must adhere or face sanctions against their licenses, prohibit a lawyer from representing a client when "the representation of one client will be directly adverse to another client" unless the lawyer believes he can provide competent counsel to both clients and "each affected client gives informed consent, confirmed in writing."
Having seen no conflict, Melcher says he hasn't sought Council or the mayor's consent for dual representation.
Robert Millman of Colorado Springs is a veteran member of the Colorado Supreme Court's Hearing Board for attorney disciplinary cases. Speaking generally and not about the city's situation, Millman says representing two clients in the same dispute undermines the bedrock of the attorney-client relationship, namely confidentiality.
"You owe your undivided fiduciary duty to your client," he says. "You cannot represent another client if that representation is going to compromise your integrity or your ability to be an advocate to another client. You can't share information. The client has to know whatever he or she tells you in confidence will not get out."
Wherein lies a complication for the Council's contention that things would be solved if it had its own attorney. As an ex-officio Utilities Board member, Bach is entitled to attend closed executive sessions. He's also allowed at closed sessions of regular Council meetings.
That rubber stamp
After Council and Melcher tussled over the Utilities measure, Bach offered Council "better access to legal help." Within days, Deputy City Attorney Wynetta Massey was assigned to assist Council. Of course, Massey still reports to Melcher.
Asked about the arrangement, Melcher writes that "Wynetta consults with the City Attorney to ensure that all legal advice and support to Council is consistent, accurate, and takes into account the other interests and issues that may need to be considered in the City's best interests."
Councilor Merv Bennett says Massey has been "very helpful" and that her assignment has "allowed us to be more proactive in my mind to getting our work done." He won't discuss his thoughts on the city attorney, except to say he worked with him on the Memorial Health System lease "and his performance was excellent during that time."
But in the time since voters approved the deal in August, Memorial has been the subject of another Melcher-Council dustup. Though a lawsuit against the city for Melcher's early redemption of Memorial Hospital bonds was listed in his quarterly legal report, he didn't formally tell Council about it until the Feb. 11 Council meeting, 3½ months after it was filed.
"I would add it to a laundry list of things that don't come from our attorney," Councilor Brandy Williams says. "We're way past 'bothersome' at this point."
Williams also says Melcher routinely withholds information until the start of Council meetings.
"The protocol is being ignored," she says. "If we get it, it's last-minute, if we get it at all."
So what could Council do? A Charter change could be proposed, but that could take months or years, and could fail at the polls. It's worth noting, also, that Melcher would write the ballot language that Council would consider.If Council or another party believes the city attorney is acting unethically, a complaint could be filed with the city's Independent Ethics Commission or the Colorado Supreme Court. If an investigation is called, Melcher might have to step aside from advising Council during that time. But even if either panel found that Melcher was in a conflicted position, it's unclear what impact, if any, that would have on Melcher's role.
Then there's the idea of simply sending a message. Because the Charter states, "The City Attorney shall receive such salary as the Council by ordinance shall prescribe," Council presumably could speak their minds by cutting his pay. Unless, of course, Melcher writes an opinion saying otherwise.
Randy Purvis, a lawyer who served on Council from 1987 to 1999 and again from 2003 to 2011, says it might be impossible to counter what some Councilors consider a Bach-Melcher partnership, because "A lot of their authority is because they simply say so and then do it."
A pragmatist by nature, Purvis is inclined to encourage Council to get organized and use the powers it has. Council has exclusive authority over the City Auditor's Office, for example, and can direct it to hire consultants and undertake investigations.
"Council needs to start thinking like a legislative body," he says. "They've got to start thinking and acting as a group, and they haven't done it yet."
Sadly, Snider says, Purvis is right. "We don't do anything as a group but fight," he says. "And, in my opinion, that's planned" by Bach, Melcher and others. "It works too well to not have been planned."
The dynamic could change again April 2, but probably not to Council's advantage. If voters elect a majority of Council candidates who agree with Bach's agenda, challenges — informal or otherwise — are likely to be few and far between.
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