International Municipal Lawyers Association Employment Law Program November 9-11, 2008 Dallas, Texas

Transcription

1 International Municipal Lawyers Association Employment Law Program November 9-11, 2008 Dallas, Texas Ethical Issues in Local Government Employment Representation Pamela D. Hutson Assistant City Attorney City of Arlington, International Municipal Lawyers Association This is an informational and educational report distributed by the International Municipal Lawyers Association during its Employment Law Program, held November 9-11, 2008 in Dallas, Texas. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.

2 ETHICAL ISSUES IN LOCAL GOVERNMENT EMPLOYMENT REPRESENTATION In a society where the general perception within most communities is that there exist little to no accountability or ethics in the practice of law, our responsibility as lawyers is to engender good faith and trust in the legal profession. The same can be said of the local government s responsibility to make every effort to ensure that the public perceives the local government as acting in an ethical manner and in the best interest of its citizens at all times. The responsibility of attorneys to provide effective representing in the light of these factors becomes especially important. 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. The role of the municipal attorney should not be taken lightly. The day to day challenges when advising on Employment Law matters can be especially unique. Not only will the municipal attorney have to address issues of law, but they may also have to manage emotionally charged people as well. Employment decisions often involve facts that are subjective and encounter decision makers whose actions are based upon emotions as opposed to legally supportable and objective factors. If not effectively managed, decisions not supported by law could leave your client more vulnerable to liability. Your efforts to maintain a neutral and objective stance may at times place you at odds with those you seek to assist in meeting your client s objective. It is critical that those engaged in legal representation of a municipality recognize that failure to adequately navigate these tides could not only result in judgments against your client but could have a detrimental effect on the public s trust and perception of local government. For these reasons it is imperative when acting as a public official on behalf

3 of a municipality that you identify and avoid the traps that could compromise your ability to adequately and ethically represent your client and engender trust from your community in the local government and in the legal profession. All states have rules that govern the professional conduct of attorneys in the relationship between attorney and client. The Texas Disciplinary Rules of Professional Conduct (TDRPC) is one such example. TDRPC 1.12 states a lawyer employed or retained by an organization represents the entity. These rules govern those who engage in the representation of governmental entities. Some states have gone even further by adopting specific ethical rules to govern the ethical responsibilities of city attorneys. One such state, California, through its League of California Cities, has adopted Ethical Principles for City Attorneys. The preamble to the League s principles states: A city attorney occupies an important position of trust and responsibility within city government. Central to that trust is an expectation and commitment that city attorneys will hold themselves to the highest ethical standards. Every effort should be made to earn the trust and respect of those advised, as well as the community served. Enacted through The City Attorney s Department of The League of California Cities When advising on employment law matters you will most likely work with several departments and city officials. The city representatives are the persons to whom you will provide the appropriate direction and assistance. But, exactly who is the client to whom you owe this duty of adequate representation? The city attorney s client is the city, not the individuals in city government. MUNIORD 29A.9 (3)

4 Persons assigned to your Human Resources Department are often included as client representatives because they either have managerial responsibilities or they are directly involved in many of the actions that could possibly make the client vicariously liable for their conduct. You will find that each individual may have their own ideas, agendas, and objectives when seeking out your assistance in achieving their goals. Remember, however, these persons in the end are not the client. They, like you, are public servants who work to ensure your client s goals of maintaining public faith in local government are met. Unfortunately, the community perceives all municipal personnel as agents of your client and will seek to hold your client accountable for their conduct. Third parties generally see supervisors and department managers as representatives of your client and that your client endorses their conduct. Thus it will be important for you to advise them properly in an effort to keep them on the right side of the law and rein these decision makers in when their actions are legally harmful to the interest of your client. This responsibility may result in a tenuous working relationship when yesterday s reasonable manager becomes tomorrow s emotionally charged rogue actor whose conduct and decisions are no longer legally supportable. Remember during these times that your role and responsibilities to your client remains the same. You will have to adapt you stance when your engaged employee evolves into an enraged whistleblower, or when the motivated manager transforms into a rabid retaliator, and the carefree council members and mayor escalate to impetuous interlopers and a menacing micromanager. However your duty to your client will not change. Your duty is to remain neutral and objective despite the circumstances and seek (4)

5 to ensure that your advice is in line with the law and serves to protect the client s interest in limiting exposure to liability and maintaining the public s trust in government. A specific landmine to avoid in employment law comes about when the employee misunderstands the role of the municipal attorney. Quite often you as the city attorney may be referred to by various names, some of which you may find unflattering. However, despite the harsh adjectives others will use to describe you, you will often be referred to as my attorney. Managers and staff may come to see you as their personal attorney responsible for providing legal advice in a manner that helps them achieve their specific objectives and personal agendas. This is only partially true. When these persons are acting in line within the scope of their employment and make decisions that are supported by law and are in line with your client s objectives, then you are a cohesive unit. However, there will be times when the lines become blurred if these same persons come to you for counsel on personal matters of a nature more related to family law, business matters and the like. Just as we do not provide private citizens with legal opinions for their personal benefit, we cannot advise municipal officials on their own private legal issues. Our role is to advise public officials on matters relating to the official duties they perform on behalf of the client/city. The lines become even more blurred when dealing with situations involving personnel matters wherein the employees believe they are acting in the best interest of the client/city. Conduct related to sexual harassment, discrimination and retaliation often involve emotionally charged facts on the part of the employee and management. When advising on these matters you will often deal with emotionally charged managers who are making decisions that they personally believe are appropriate. In some instances (5)

6 managers may not be receptive to your feedback when they are under stress for dealing with an underperforming or problematic employee or if they perceive you as an impediment to their objective of a more productive or accountable workforce. You will have to make sure that their decisions are supported by law and are handed down in a fair and objective manner and not based on emotions that lack objectivity. However, you must remain cognizant of the fact that your duty is to the city and if you find that a particular agent of the city is acting in a manner not in line with your client s goals, your responsibility will be to advise the actor to move in a direction supported by law and in line with your client s objectives. In some instances, individual employees may reach out to you wanting to discuss a possible claim against the city and how they should proceed. They often do not understand the role you serve; especially if you have established cordial working relationships with them as co-workers. The line between a listening ear and city attorney can become blurred not only for the employee but for the municipal attorney. You have no attorney-client relationship with individual employees and your state s rules of professional conduct very likely advise against you providing personal legal advice to persons with whom you do not hold an attorney-client relationship under these circumstances. Whistle blowing employees, however, love to seek out the municipal law attorney s office to report the misdeeds of their supervisors and to get your opinion on whether they should report misconduct to EEOC. When employees have concluded that their supervisor has broken the law and they should report it to a lawyer, they reach out to the one they refer to as my lawyer for assistance. While they may be correct in identifying that management s actions are improper, they need to know that they should (6)

7 not report this matter to you directly with the expectation that you will be able to represent their interests. This is especially true when their interest conflicts with that of your client, the municipality. This employee is not your client and you should not give him/her legal advice. Additionally, you may find that you have unintentionally violated ethical rules in your state by communicating with this person who, in many instances, may already be represented by legal council. In these instances you must be cognizant of the need to balance your ethical requirement not to blur the lines with a need to ensure you have enough information to effectively identify and prevent a claim against your client/city. Thus, when dealing with a whistle blowing employee, while you may not be the appropriate party to gather additional information, it would be appropriate for you to refer them to your human resources or employee relations representative who can gather the necessary information and are trained to investigate these matters. The investigator can and should regularly consult with the municipal attorney somewhere within the investigative process thus giving you an opportunity to appropriately receive and assess information from the prospective whistleblower without blurring the lines and violating any ethical rules in the process. How may these landmines be avoided? As previously discussed, many of these pitfalls may be avoided with a thorough and consistent education of client representatives as to exactly who you represent and owe your duty as an attorney. You can help eliminate much of this confusion about representation by respectfully reminding persons regularly that you represent the city s interest and not that of an individual employee, member of management, and one or all of your city council and mayor. Doing this early in the relationship and often during the relationship should serve to prevent the wrong (7)

8 perceptions of the lawyer s role. Education on the role of the city attorney is especially important when dealing with city council members, who may not be used to the government environment. Given that interactions with council and mayor can be a bit more tenuous in nature because they usually involve politically sensitive matters, I would recommend that your office establish specific training on how to advise council members and mayor and how to effectively express to them the limitations of your assistance. The ethics traps associated with the practice of employment law on behalf of the municipality can present many challenges for the attorney. However, you can avoid these potential landmines and threats of liability for your client/city by recognizing who acts as the client representative, what decisions by management can be supported by the law, and educating management on the appropriate course of action in accordance with the law. Only then are you more likely to meet the ethical goals of integrity and accountability shared by you and the municipality you serve. (8)