Santa Clara City Attorney Glen Googins presented the importance of teamwork and accountability when preparing ordinances at the CCAC Annual Conference in 2021. Glen said:
“There’s really a lot of value to city clerk’s being legal professionals and being able to research things. It’s important for you professionally to be comfortable finding and developing an understanding of the law. Sometimes your city attorney won’t be available in a timely way or if you’ve got a contract attorney, in an affordable way. Your attorney will very much appreciate your advanced efforts to identify what you believe are the applicable laws and a summary of the facts that will facilitate an expeditious analysis and advice from your city attorney.”
We agree and highly recommend viewing his full presentation, which can be found here.
Municipal Clerks and Municipal Attorneys Work as a Legislative Team.
Each position in the city has defined roles. Some by law, some by tradition. In great teams, personnel and current challenges should and will supersede tradition.
Teams are not mandated; they are social and delicate. Great teams accomplish objectives together and have fun doing so.
Budgets and efficiency of municipal governments is always a challenge. When unique, time-sensitive challenges arise, they can affect our ability to find the time to accomplish everything we had planned.
Currently the Supreme Court of the United States is considering a case that could overturn the Chevron doctrine, which allows for federal, state, and municipal agencies to create regulations that carry a similar weight as law.
If overturned, we could see cities needed to massive amounts of local agency regulations through the ordinance process. Of course this is speculative and we don’t know what the actual impacts will look like yet.
This is an example of how one change to our system could disrupt our local legislative agendas and create a significant challenge.
Sometimes there are jobs that simply need to get done. A good team knows what each person’s role is, but is also aware of what each person is capable of and uses that capability when it benefits the team.
When a challenge arises, a team should rise to the occasion. Helping each other is the most basic building block of teamwork.
How can the City Attorney offer help to the Clerk?
- Expectations setting. Provide clear instructions regarding timing and scope that are realistic. Clerks are responsible for agendas and unexpected changes to those agendas take real time and focus.
- Use the Clerk’s process. This includes timelines but also formats, workflows, and templates for ordinances and resolutions. Using the wrong template can cause the Clerk to re-type and reformat your work. It is a hidden cost that should be eliminated.
- Trust the Clerk. If the Clerk’s office has time (and legally proficient individuals), they can set the attorney up for success by preparing and researching legal language for ordinances and resolutions.
How can the City Clerk offer help to the Attorney?
- Clear and consistent process. Process includes setting realistic timelines and easy to access templates and briefs used in preparing legal drafts. Give your attorney a consistent, easy to follow path for repeating the mechanics of law making.
- Research & drafting. Only attorneys can offer advice but that does not mean they must do all of the research or drafting. This is an example where tradition can be superseded or changed when necessary.
All of the above are opportunities to create efficiency, together. Clear communication and small wins helps build trust. Great teams require achieving shared goals through trust.
Shared Roles: Research and Drafting
Every new change in a City’s code (amend, repeal, create) is initiated by change. State or federal laws may have changed, which prompts an amendment. Or some change of conditions or priorities within the city may require a respective change in law by the city council.
This begins the research phase which can be done by the Clerk or the Attorney.
- Preemption — Research if the state allows the city to pass ordinances around the specific topic (for example minimum wage). Research if the state has passed a law (or is about to) that requires adjustment to city ordinances. And if the state does allow some ordinances to compliment the state law, what can and cannot be done by the city.
- Example: Search and record URLs of existing state laws and bills on state legislative agendas that are relevant to the topic and contain preemptive language for your state. Summarize the state’s position as it relates to the ordinance being researched.
- Neighboring Ordinances — If the city wants to amend or pass an ordinance, it is common, practical, and encouraged for that city to pass that ordinance in a manner that is similar to neighboring or similarly situated cities. It is common to review codes or policies used by one city in order to form the basis codes or policies to be used by another. This is positive because we all want connected cities to have similar laws.
- Example: Search local ordinances from neighboring cities and towns relative to the ordinance being researched. Collect URLs and copy language. Summarize what could be and should not be considered when drafting.
- City Ordinance Citations — Reviewing existing city ordinances for where amendments or repeals should take place. If we pass an amending ordinance about parking fees, perhaps there are 3 places in the existing ordinances that need to be adjusted.
- Example: Search your existing ordinances for any connection to the proposed changes. Record each instance by citing the ordinance and what change may be required.
City Clerks are perfectly capable of doing this research, time constraints notwithstanding. City Attorneys should be the one to interpret unclear discrepancies or conflicting research; legal advice is one role that cannot be shared.
Drafting Legal Documents
There are a variety of legal documents that accompany every ordinance change. Someone needs to be designated as accountable, depending on your city’s structure.
- Templates — The City Clerk is responsible for ensuring that process and protocol are followed correctly. This extends to templates for ordinance types, resolutions, and other actions. The ordinance needs to have the city seal and legal language relative to the type of action being undertaken by the council. The City Clerk, in coordination with the City Attorney’s office often has a major role in maintaining ordinance and resolution templates, and ensuring they are used correctly. A lack of control over templates leads to disorganization, mistakes, and inefficiencies.
- Resolutions — It is common for a City Clerk to assist with the preparation or review of draft resolutions. A City Attorney will probably review these drafts, but it depends on the nature of the resolution. It is common for the department proposing the action to draft the resolution.
- Amending Ordinances — Complication, knowledge of case law, and weight of impact influence who writes the initial draft of an amending ordinance. It is common for proposed ordinances to be drafted by the City Attorney’s office, but City Clerk’s also participate in drafting and the review of certain types of ordinances. If there is a question about the language to use or the legality of a proposed ordinance, there is no question that an attorney needs to be consulted. But for simple ordinance changes, a competent clerk can draft.
Teams are Not Defined, They are Found
ICMA (International City/County Management Association) published an article by Don Jarrett who put it this way:
“Most organizations have teams, but teams and teamwork are not synonymous. Teamwork is cultural, not structural. It is behavioral, not procedural. It starts with the attitude of “teamness,” that we contribute to each other for the benefit of the whole. “
So, kudos to our legislative teams across countries whose mission is the “rule of law”.