The municipal attorney is an important resource for a local government. One of the most important functions of a municipal attorney is to act as the "legal advisor" to help prevent, or at least reduce, the possibility of mistakes that can create problems or cause damaging lawsuits. In some cases, the municipal attorney is a municipal employee; however, in most cases, the municipal attorney works for the municipality under an agreement on an as-needed basis.
The municipal attorney is most often used in four different capacities, as explained below here.
Most municipalities in Alaska do not have the need or the financial resources to employ a full-time municipal attorney. Instead, they usually rely on attorneys serving in private practice who have developed a special knowledge of laws affecting local governments. It is a good idea to seek attorney assistance at the beginning of a situation or as an issue is developing. A municipality will likely spend less money on an attorney as an advisor to prevent legal troubles, rather than as a defender of a municipal action in court. The municipal attorney is generally hired by the mayor or the municipal manager, and approved by the council or assembly; each municipality should check its own local laws and regulations to determine how it appoints an attorney.
The municipality, rather than a specific individual or department, is the client of the municipal attorney. The municipality acts through its chief administrator and it is to the chief administrator that the municipal attorney must answer.
Municipalities should have an agreement with the attorney regarding the hourly rate to be charged for services. Typically, the attorney keeps track of his or her time spent in the service of the municipality and sends a monthly bill to the municipality.
Who hires the municipal attorney?
Usually, unless municipal ordinances provide otherwise, the municipal attorney is hired by the mayor, or the municipal manager if the municipality has adopted the manager form of government. The governing body must confirm the appointment of the municipal attorney, but unless an ordinance provides otherwise, the municipal attorney serves at the pleasure of the mayor or municipal manager (see AS 29.20.360).
Does the municipal attorney need to be an employee of the municipality?
No. Most small municipalities consult, on an as-needed basis, with attorneys who are in private practice and are familiar with local government law. Full-time staff attorneys are usually only required in larger municipalities because the affairs of the municipality are generally more complex than smaller rural municipalities.
When is a municipality required to have an attorney?
A municipality needs an attorney when it has been sued, when it must file a lawsuit, when it must appear before a regulatory agency like the Regulatory Commission of Alaska (RCA), and when it must prosecute violations of its ordinances in court.
What are some of the most common legal problems that a municipality might encounter?
The municipality is being sued: It is important not to overreact to threats of lawsuits. People often threaten lawsuits, but sometimes don't follow through when they discover that there are really no grounds for a lawsuit. If a threat is realistic, or if the municipality has received a demand letter from a person or from an attorney, the safest course is to consult with the municipal attorney. Once the municipal attorney has become involved and communicated with the person threatening a lawsuit, the matter should be turned over to the municipal attorney and all future communication with the person or his or her attorney should be conducted through the municipal attorney. The attorney should also take the lead in any settlement negotiations.
If the claim against the municipality is not covered by insurance, then the municipal attorney should be asked to evaluate whether the claim is likely to be upheld in court. The attorney might also be asked to discuss options, the prospects for settlement, the potential financial impact if the municipality loses, and the expected legal costs for defending the lawsuit. When preparing the opinion, it may be necessary for the attorney to communicate with the person threatening the lawsuit and to conduct some investigations. Once the municipal attorney is in a position to give an opinion and after consideration of his or her advice, the attorney should be asked to prepare a written response to the demand letter.
It is rarely a surprise when a lawsuit against a municipality is filed in court. The actual lawsuit generally only happens after preliminary settlement discussions have broken down. The first thing to do if the municipality has been served with the legal papers of a lawsuit, called a "Complaint and Summons," is to contact the municipal attorney. Do not set the papers aside. Get them to the attorney as soon as possible. Generally, a person must file responding legal papers, called an "Answer," in the court within twenty days of receiving the Complaint and Summons. If the municipality fails to file an Answer within the time allowed, the court can decide that the failure to file is an admission of liability, which means the municipality automatically loses. This is called a "Default Judgment."
Claims covered by insurance: If the issue is covered under the municipality's insurance policy, the insurance company will provide legal defense. One of the first things to look at when a municipality is sued or threatened with suit is whether the claim is covered by the municipality's insurance.
The most common situation in which the insurance company is likely to provide coverage and a legal defense is when the claim was the result of an accident and injury to a person or damage to property.
This type of claim may be covered by the general liability policy of the municipality. The general liability insurance policy typically requires the insurance company to provide and pay for the lawyers to defend the municipality against the claim. Insurance companies also generally provide legal defense for claims arising from automobile accidents and claims of wrongful termination by former employees among others.
The mayor, manager, or municipal attorney should send a copy of any letters or legal papers concerning the issue to the municipality's insurance broker. The insurance company will review the claim to make sure it is covered by the policy. The municipal attorney should also review the policy and the claim in case the insurance company denies coverage. If the claim is covered, the insurance company will choose the lawyers to conduct settlement discussions and defend the municipality in court, if necessary.
Just because the insurance company is providing the legal defense does not mean a municipal attorney is not also needed. The municipality is only protected up to the limits of its insurance coverage. There may come a time in the course of a lawsuit when the outcome of a decision that must be made may not serve the best interests of both the municipality and the insurance company. Often, these times occur during settlement discussions. The municipal attorney should monitor the insurance company's defense and should always be available and present when necessary to protect the municipality's best interests. See the section on Risk Management for additional information on this topic.
The municipality needs to sue: A legal opinion is often the best starting point if the municipality has been wronged in some manner and is considering filing a lawsuit. Ask the attorney to evaluate whether the municipality's claim is likely to succeed in court. The attorney might also be asked to discuss options, the prospects for settlement without going to court, the potential financial impact if the municipality loses, and the expected legal costs of the lawsuit. The likelihood of success in court is particularly important because, in Alaska, the courts will often require the losing party to pay all or a portion of the costs and attorney fees of the party who wins.
Before filing a lawsuit, the municipal attorney will generally make every effort to negotiate with the party from whom the municipality seeks relief. If the attorney is not successful with the negotiations, it may be necessary to seek relief by filing a lawsuit. It is recommended that a lawsuit only be filed after the advice of the municipal attorney is considered and the governing body has authorized it.
Municipalities often resort to small claims courts to collect overdue utility bills. Again, other officials can represent the municipality in small claims court; however, the advice of an attorney and sometimes representation by an attorney may be prudent if the claim is not routine. Small claims are limited to disputes that involve no more than $10,000.
Small claims suit: A municipality does not necessarily need an attorney if it has been sued under Alaska's small claims process. Other officials can represent the municipality in small claims court; however, the advice of an attorney and sometimes representation by an attorney may be a good idea. Small claims are limited to disputes that involve no more than $10,000.
Disputes over larger amounts of money or claims that seek different kinds of relief like an "Injunction" to stop an action from going forward must be heard in Alaska's District Court or Superior Court. A municipality must be represented by an attorney in Alaska District Court or Superior Court.
Sometimes disputes involve issues of federal law or rights under the United States Constitution. These disputes are often heard in the United States District Court. A municipality must be represented by an attorney in the United States District Court.
Where can I find an attorney who practices in the field of local government law?
Attorneys who consider themselves experienced with municipal law will often list in the yellow pages of the phone book under municipal law. Municipalities will often list their municipal attorneys on their web pages. The Internet is another source for finding attorneys, a quick search for Alaska Municipal Attorney or the Alaska Bar Association can put you in the right direction. It is also a good idea, and if time permits, to publish a notice in a newspaper requesting proposals for municipal attorney services.
What qualifications should I look for in a municipal attorney?
Selecting a municipal attorney should be treated with the same seriousness given to hiring any person or business providing professional services to the municipality. Price is important, but qualifications and experience should be the primary consideration.
Finding an attorney with the appropriate qualifications is not difficult.
Once some attorneys have been located, write to them asking for a proposal for municipal attorney services and a statement of their qualifications, client references and billing rates. When the municipality has received responses, review the qualifications, contact some of the client references, and conduct interviews with those attorneys the municipality is interested in doing business with.
Often, the attorney the municipality wants to work with may be a partner or associate of a law firm. In that case, the municipality actually employs the entire firm as its legal advisor and one or more of the firm's attorneys may be called upon to give advice depending upon the particular area of expertise that may be needed.
For example, a firm may have an attorney experienced in labor law who may be called upon to defend the municipality in a wrongful termination lawsuit, or another attorney familiar with the unique aspects of construction law who may be called upon to help draft a construction contract. Law firms will charge differing hourly rates depending upon who in the firm may be consulted on any particular issue. Higher rates are normally charged for the more experienced partners in the firm. A proposal from a law firm should set forth the rates charged by different attorneys.
What should I expect to pay an attorney?
Municipalities often have a formal agreement with the attorney setting out the method of payment (perhaps a flat fee or an hourly rate), the fee or rate to be charged for services, and an estimate of how long it will take to provide the legal service. Usually, the attorney keeps track of how much time is spent working on the legal issue(s) and sends a bill to the municipality when services have been performed.
When a bill is received, review it carefully. The bill should state the nature of the service provided and the number of hours the attorney claims were spent providing that service. Often attorneys will use paralegals or law clerks to help with research or investigations. Make sure the charge for these services is clearly distinguished from charges for the services of a lawyer.
What do I do if the municipality is served with the papers of a lawsuit?
The first thing to do if the municipality has been served with the legal papers of a lawsuit, called a "Complaint and Summons", is to contact the municipal attorney. Do not set the papers aside. Get them to the attorney as soon as possible. Often, the first determination to be made when a municipality has been sued is whether the claim is covered by insurance. The mayor, manager, or municipal attorney should call and send a copy of the legal papers to the municipality's insurance broker.
Does the municipality need an attorney in small claims court?
No. A municipality does not need an attorney if it has been sued under Alaska's small claims process. However, if the municipality has been sued in small claims court, it may be a good idea to have the attorney review the small claims complaint. One reason for this is that it may be in the municipality's best interest to ask to move the case from small claims court to the Alaska District Court. If the suit is moved to the Alaska District Court, attorneys must represent the municipality and the other party.
Other officials can represent the municipality in small claims court; however, the advice of an attorney and sometimes representation by an attorney is a good idea. Small claims are limited to disputes that involve no more than $10,000. See the LOGON section on "Filing Small Claims" for additional information on this topic.
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