------CITY of ALBUQUERQUE
TWENTY SEVENTH COUNCIL
COUNCIL BILL NO. O-26-29 ENACTMENT NO. ___________________
SPONSORED BY: Dan Champine
ORDINANCE
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Amending The Legal Department; City Attorney Ordinance (ROA 1994, Chapter 2, Article 7, Part 2) (Champine)
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BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. Chapter 2, Article 7, Part 2 of the Revised Ordinances of Albuquerque, 1994 is hereby amended is follows:
PART 2: LEGAL DEPARTMENT; CITY ATTORNEY
§ 2-7-2-1 CREATION OF THE LEGAL DEPARTMENT; CITY ATTORNEY.
There is created a department of the city, the Legal Department. The executive and administrative head of the Legal Department shall be the City Attorney.
§ 2-7-2-2 AUTHORITY AND DUTIES OF THE CITY ATTORNEY.
The City Attorney, both personally and through his or her assistant city attorneys, shall represent the city in the courts. He or she shall also advise the Mayor and the Council as to legal matters. The City Attorney and assistant city attorneys, while acting in the course and scope of their duties, are prohibited from engaging in policy advocacy relating to matters upon which the City Legal Department has or is likely to be called upon for advisement or representation. Nothing herein shall prohibit the City Attorney or assistant city attorneys from expressing their personal views on any issue while acting outside the scope of their duties. [The City Attorney shall abide by client decisions concerning the objectives of representation and shall communicate and consult with their client(s) as to the means by which they are to be pursued.]
§ 2-7-2-3 APPOINTMENT OF THE CITY ATTORNEY.
The City Attorney shall be appointed by the Mayor with the advice and consent of the Council.
§ 2-7-2-4 CITY COUNCIL PERFORMANCE REVIEW OF THE CITY ATTORNEY.
The City Council shall conduct a performance evaluation of the City Attorney within 90 days following every 18 month period of consecutive service as City Attorney. The 18 month period shall begin after the Council's approval, the City Attorney's appointment or after the prior performance evaluation, whichever is more recent. The Council shall develop written evaluation criteria for this purpose. The City Council shall present its findings in a public written report to the Mayor and Chief Administrative Officer.
§ 2-7-2-5 CONTRACTING WITH ATTORNEYS TO PROVIDE LEGAL SERVICES.
(A) It is the policy of the city to use attorneys who are city employees for litigation unless there are special reasons for using contract attorneys. When the City Attorney weighs whether outside legal counsel should be retained to handle litigation, the City Attorney shall elect to hire or propose such outside counsel only when:
(1) There is a conflict of interest within the Legal Department that ethically requires outside counsel to be used;
(2) The city has no staff attorney with both the expertise and the time available to handle the needed work; [or]
(3) When the city has an insurance policy in which the insurer reserves the right to select defense counsel[.][; or]
[(4) The City Council has requested outside counsel. In this case, the City Attorney will provide the Council with a list of qualified attorneys to choose from. The Council may also choose its own qualified attorney. The City Attorney shall not terminate representation of any outside counsel representing the City Council without the Council’s express consent.]
(B) Contract attorneys paid by the city shall report to an overseeing attorney who will evaluate and advise on the appropriateness of the litigation strategy of the contract litigator and will also review and evaluate the billing levels of the contract litigator.
(1) The overseeing attorney shall normally be the City Attorney or a city staff attorney assigned by the City Attorney; the overseeing attorney shall not be a person overseeing the legal case preparation for another party who may have separate interests from those of the party represented by the contract attorney.
(2) If the estimated cost of securing the services of contract attorneys for a case, to be established at the initiation of the legal work, exceeds $100,000, the City Attorney shall request the Director of the Office of Internal Audit to retain a different contract attorney to review the work of the contract litigator retained by the city. The contract attorney so retained shall advise and consult with the overseeing attorney concerning his or her conclusions.
(3) If the City Attorney believes that he or she may be named personally as a defendant in the suit in question or a related suit, or if he or she believes that the Mayor, the Chief Administrative Officer, or a Deputy or Assistant Chief Administrative Officer may be similarly named in the litigation and they are personally implicated based on the specific facts of the lawsuit, the City Attorney shall request the Director of the Office of Internal Audit to retain a different contract attorney to review the work of the contract litigator retained by the city. The contract attorney so retained shall advise and consult with the overseeing attorney concerning his or her conclusions.
(4) If the overseeing attorney believes the contract litigator is not acting in the best interests of the city but when so advised the contract litigator elects not to alter his or her approach, the overseeing attorney shall report this to the person who appointed him or her. Such report by the overseeing attorney shall be at the conclusion of the litigation unless he/she feels the problem is one that must be immediately addressed by the city. Following receipt of such a report, the City Attorney shall share the concern with the Mayor and the President of the City Council; the Director of the Office of Internal Audit, after receipt of such report, shall share the report with the Accountability in Government Oversight Committee. For cases in which the city is the client, members of the City Council and authorized members of the City Council staff shall have unrestricted access to the overseeing attorney and the case record during the course of the legal work and after its conclusion.
(5) In cases for which it has been estimated that the cost of securing the services of contract attorneys exceeds $100,000, the overseeing attorney shall forward for review all legal billings to the Risk Management Division of the Department of Finance and Management. Staff of the Risk Management Division shall work with the overseeing attorney to evaluate the reasonableness of billings and to control contract attorney costs.
(6) The above provisions of division (B) do not apply to defense of Workers' Compensation cases; in those cases, the City Risk Manager shall provide oversight of contract litigators' litigation strategy and billing levels.
SECTION 2. SEVERABILITY. If any section, paragraph, sentence, clause, word or phrase of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The Council hereby declares that it would have passed this Ordinance and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
SECTION 3. COMPILATION. SECTION 1 of this Ordinance amends, is incorporated in, and is to be compiled as part of the Revised Ordinances of Albuquerque, New Mexico, 1994.
SECTION 4. EFFECTIVE DATE. This Ordinance takes effect five days after publication by title and general summary.