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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 (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, 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 don't follow through
because 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 the
municipal attorney is not 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.
A lawsuit should 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 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
is 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. The Alaska
Municipal Officials Directory, published by the Alaska
Municipal League and the Department of Community and Economic
Development, is also a good source. Municipalities will
often list their municipal attorneys. The Internet is another
source for finding attorneys. West Law hosts a directory of attorneys.
Once in the directory, search for attorneys in Alaska who list "State,
Local and Municipal Law" as a field of practice. It
is also a good idea, and if time permits, to publish a
notice in a newspaper requesting proposals for municipal
attorney services.
See the Sample
Professional Services Contract for Legal Services and the LOGON section on Contracts
and Agreements for more information.
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 (flat fee or 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 is a good idea to have the attorney
review the small claims complaint because 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 $7,500. See the LOGON section on "Filing
Small Claims"for additional
information on this topic.
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