chevron-down Created with Sketch Beta.
January 12, 2022 Feature

Civil Local-Government Lawyers: What We Do Matters

By Regina L. Nassen
Civil local-government lawyers do nothing less than protect democracy and the rule of law at the grassroots level.

Civil local-government lawyers do nothing less than protect democracy and the rule of law at the grassroots level.

Courtesy of Getty Images

I am and have been for the last 18 years—with the exception of a brief hiatus earlier this year, but that’s a story for another day—a local-government lawyer. I am not a prosecutor, nor am I a public defender. I neither put the “bad guys” behind bars nor champion the constitutional rights of the criminally accused. I am a civil government lawyer—a member of a local jurisdiction’s in-house law firm.

Like other civil local-government (CLG) lawyers, my duties are varied and interesting—and challenging. But not a lot of what we do likely appears exciting to members of the public or even other lawyers. Much of our work is inward- rather than outward-facing, so very few folks have any inkling about what we do. Let’s face it, most members of the public probably don’t even know that local jurisdictions have “civil divisions” providing the day-to-day legal advice and representation that helps keep the government train on its tracks. Everyone knows something about prosecutors, criminal defense lawyers, and private civil lawyers, even if it’s largely based on TV and movies. But civil government lawyers? Particularly the ones who only rarely appear in court or appear in non-jury proceedings? Not so much.

The purpose of this article is to remind my government lawyer colleagues who may be feeling burned-out and under-appreciated about why our work is important.

Protecting the Public Fisc

Assisting government departments with the procurement process and helping draft contracts that protect the government’s interests, opposing inflated claims for just compensation in eminent domain lawsuits, defending the government and its representatives in court against bogus multi-million-dollar lawsuits, defending property tax valuations, and chasing down recalcitrant commercial taxpayers—in all these ways CLG lawyers help safeguard the public’s money.

It doesn’t always feel like it—sometimes it seems as though everyone loves to sue and overcharge the government, all the while complaining about the taxes they pay. But as we know, a penny saved is a penny earned. Or, to bring the analogy home, a million dollars saved is a million dollars the community doesn’t have to pay in taxes next fiscal year.

Sometimes, of course, we counsel our clients to pay up. Sometimes those civil rights claims or those change orders on a big public project are not bogus. When that’s the case, we help construct an equitable settlement and then educate and assist our clients in developing better programs and processes for the future. In other words, we safeguard the interests of both the public as a whole and individual members of the public.

Protecting the Public’s Health, Safety, and Welfare

CLG lawyers help the appropriate government departments respond to complaints from the community about zoning violations and nuisances and bring enforcement actions to get them abated. For example, “my neighbor has chickens and goats in the backyard and junked-out vehicles in the front” or “there’s sewage running down the gutter from someone’s broken sewer line.” They also work with local health departments to enforce health codes and work with liquor boards to ensure that liquor licensing laws are followed. And they enforce dangerous-animal ordinances. It can be sad and difficult when a local animal-care department has determined that a dangerous animal must be destroyed. But even that is sometimes a necessary means of protecting the public.

Building Infrastructure and Helping Those in Need

Flood control improvements that protect homes, lower the cost of property insurance, and enable development. Road improvements that enhance traffic flow and safety. Public transportation, healthy drinking water, and wastewater treatment systems. Education, including preschool and day care programs. Health care for the indigent, housing for the homeless, and food for the hungry. Local assistance to immigrants and asylum seekers. Public libraries. Vaccination programs. Expanded data services to underserved areas. These are just a few of the services that local governments provide to make the lives of those in their community better and safer. And public lawyers assist—in the background and from the shadows—in myriad ways.

We advise client representatives about the scope of their authority, how they can legally provide certain types of aid, Health Insurance Portability and Accountability Act (HIPAA) requirements, restrictions on funding sources, potential financing mechanisms for public projects, and how bond-funded property can be used. We interpret and explain the Americans with Disabilities Act (ADA) and federal civil rights statutes, arcane state statutes about how to create special-purpose taxing districts, and recorded documents. We draft intergovernmental agreements, easements for sewer and water lines, conservation easements, library policies that comply with privacy rights, and leases of real property from which services are provided.

The legal work may not seem very exciting in and of itself, but we share a small but measurable amount of credit for the success of the government programs we assist.

Helping Individuals

CLG lawyers are normally very limited in their ability to advise and represent individuals in the community. But there are still ways in which we make a difference in the lives of individuals.

For example, we can provide information if it’s carefully couched as just that and not legal advice. In that way, we can help pro se individuals navigate certain proceedings, such as a civil forfeiture action or the foreclosure of a tax lien on their property that has been sold to an investor. CLG lawyers answer questions from tenants and landlords about how rent control programs work. Government websites also typically provide a wealth of information to members of the community about how to engage with the government, and public lawyers help ensure this information is accurate.

Sometimes, we do things that don’t look particularly helpful to some of the people involved, but they really are in the interest of both the public and the impacted individual. In Arizona, for example, CLG lawyers file petitions for court-ordered evaluation and treatment of individuals who are a danger to themselves or others or persistently and acutely disabled. This isn’t a criminal prosecution, although the patient is provided counsel at taxpayer expense because evaluation and treatment obviously can’t be compelled without ensuring due process. But the purpose of the proceeding is to help both the individual being petitioned and others they might harm if they don’t receive the proper treatment.

CLG lawyers are also tasked by statute with all sorts of odd duties that one wouldn’t expect, but which help individuals—such as assisting with adoptions, enforcing child-support obligations, or representing the state agricultural department when it has seized cattle it believes have been stolen or misbranded (yes, cattle rustling is still alive and well, at least in Arizona, where county attorneys are tasked with handling the resulting legal proceedings and getting those dogies back where they belong).

Protecting the Rule of Law

I’ve worked with many elected officials over the years. Some I liked, some I wasn’t so fond of. Some were easy to work with, others more difficult. Some made policy choices I agreed with, and some made choices I felt were unwise. But they all, in their own way, were there to serve the public, and they were pursuing what they believed to be the right course. I suspect that’s the experience of most government lawyers.

Most importantly, for better or worse, those elected officials are the individuals that the public has chosen to make certain decisions on its behalf. And CLG lawyers are here to safeguard that trust. If a local governing body—a board of supervisors or a city council, for example—makes a decision that it has the authority to make, we defend that decision against legal challenge whether we personally agree with it or not.

And if a local governing body exceeds the bounds of its authority—well, we’re here to call them out on that, whether they want to hear it or not. But, in most cases, we don’t do this publicly. We advise them in advance not to take a certain action, or we advise them to “walk back” a legally wrong action. However, in some extreme cases, CLG lawyers have the ability—indeed, the duty—to bring legal challenges against local officials who act outside the scope of their authority. That’s something, thankfully, I’ve never had to do. As noted above, my experience is that most local elected officials want to do the right thing, and that includes staying in their lane however much they might want to swerve into oncoming traffic.

Sadly, however, I have seen things done at other levels of government, actions in which government lawyers are complicit, that appear to pretty clearly defy the rule of law. That includes actions designed to interfere, in an unconstitutional manner, with the ability of local jurisdictions to take important public health measures. In those instances, CLG lawyers often sue to invalidate or enjoin those actions.

Conclusion

After adding up all that CLG lawyers do, I am bold enough to assert that we do nothing less than protect democracy and the rule of law at the grassroots level. CLG lawyers advise and counsel the elected and appointed officials of the government entities that employ or retain them. By doing so, CLG lawyers contribute to the success of all the programs carried out by those officials, whether infrastructure construction, social services delivery, transportation system operation, economic development, or regulatory enforcement. Those programs impact and benefit, in the most direct and tangible ways, the daily lives of those jurisdictions’ residents and taxpayers. It’s a job that is rarely easy and sometimes thankless. But it’s a job that matters and one to which we are proud to dedicate our lives.

Entity:
Topic:
The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

By Regina L. Nassen

Regina L. Nassen is principal assistant city attorney for the City of Tucson, Arizona.