A Progressive City Attorney

Warning: Super-nerdy wonkishness ahead

Last night I attended the inaugural event by the San Diego chapter of the American Constitution Society; a panel exploring What Is a Progressive View of the City Attorney's Office? Since I don't know enough about the inner workings, hopes and fears of the current city attorney's race (just that it's likely to be an 18-way slapfight), it seemed like a good place to start getting geared up. If the streets are going to run with the blood of the nonbelievers, I should be prepared. And prepared I am now approaching.

It got pretty deep into the wonky legal weeds of theory, so occasionally I was out of my depth on jargon or tangents, but I think the fundamental discussion can be broken down pretty simply. Essentially the question is whether, by nature, the "public interest" can be served by a city attorney. Given that the public interest means different things to different people, does the pursuit of such service inherently lead to the office being overtly and entirely political as the city attorney picks which version of "public interest" will be served? The argument put forth by one of the panelists- Professor David McGowan- that a city attorney should "aim low" for a role cleaning up messes but not being proactive about policy seemed to be the most ripe as a jumping off point as it seems to lay bare all the apparent contradictions in how the city attorney position has been conceived in the first place.

The construct of the city attorney's office in San Diego names the City of San Diego as the "client." That is, in inelegant corporate terms (and I suppose at least partly in my opinion), the city attorney protects the brand name- not necessarily the employees of the company (government officials) or necessarily the customers (citizens). Given that the role of the city attorney is not directly to serve the general public (and sometimes to work directly against them presumably), this would seem to make the city attorney unique among other elected offices. From President to State Assembly to Judge and Sheriff, every other elected official is put into the job directly in service to the people. Keep them safe from crime or injustice in the non-political aspects, direct policy that protects life, liberty and the pursuit of happiness on the legislative and executive side. But the city attorney does not exist to serve the public as an inherent or necessary function of the job.

So how should voters be utilizing the city attorney when weighing candidates? It seems to me that the notion of aiming low and cleaning up the messes as they come can be extrapolated into a notion that the city attorney should strive to be as apolitical as possible. A proactive, politicized city attorney, the argument goes, puts policy discretion in inappropriate hands. But the inappropriate-ness seems to be a semantic issue. The simple title of "mayor" or "councilmember" or "city attorney" carry no inherent value- it is what people make it out to be. And certainly one thing we've seen at the national, state and local levels over the past decade is that the balance of power is fluid. The relative power of executive, legislative and judicial branches within any political unit is in a constant state of motion and relative ascendancy/decendency. Some units might have a strong mayor now after a strong legislature four years ago, some might be going the other direction. So as long as the city attorney is an elected position serving an autonomous role in the city government, it seems to me that the office is an element of the power structure that voters must use to maintain the desired balance of power.

None of this really gets to the question of what is a progressive view of the City Attorney's office? The underpinning of the notion of a City Attorney seems to be that a healthy civic brand is the unifying public interest of a community. That is, by protecting the integrity of the city as an entity all the competing political views within are enabled to healthily and properly work themselves out. And the progressive in me certainly likes that notion. So how does a city attorney actually do that in practice? I'm wary of the notion that being apolitical is progressive, although I don't think that progressivism is inherently ideological in itself. I have a difficult time with the notion that removing onesself from the political process can help to bring about a particular sort of political end. Minimizing influence as a way of maximizing influence the notion would be, and I'm just not ready to buy onto that theoretical train.

So that leaves me with a progressive role that's about as close to clearly defined and uncontrovertial as any political role can be. Not just clean, but open government. This isn't meant to be the only role of the City Attorney. Rather the only political role of the City Attorney. Ensuring no closed doors, no unreasonably restricted public commentary, no string of last-minute location changes for charter review committee meetings (cough), and when feasible, working to ensure a healthy adversarial relationship between the executive and legislative branches of government. The City Attorney ought not have a direct role in determining the conception or the application of policy, but in certain respects the public most certainly should.

Part of protecting the "brand" of the city is ensuring a vital and functional government, and it just so happens to also serve the collective public interest (by keeping their government in front of their noses) and progressive interests (hamstringing attempts at runaway concentration of power).

Cross posted at Calitics