Michael Basford asked a good question: When was the City Attorney given judicial powers to void Common Council decisions?
Answer: He wasn’t.
Here’s what the state law says a city attorney does:
62.09(12)
(12) Attorney.
(a) The attorney shall conduct all the law business in which the city is interested.
(c) The attorney shall when requested by city officers give written legal opinions, which shall be filed with the clerk.
(d) The attorney shall draft ordinances, bonds and other instruments as may be required by city officers.
(e) The attorney shall examine the tax and assessment rolls and other tax proceedings, and advise the proper city officers in regard thereto.
(f) The attorney may appoint an assistant, who shall have power to perform the attorney’s duties and for whose acts the attorney shall be responsible to the city. Such assistant shall receive no compensation from the city, unless previously provided by ordinance.
(g) The council may employ and compensate special counsel to assist in or take charge of any matter in which the city is interested.
The city ordinance says (I added the bullet points and left out the stuff on nuisances as it wasn’t relevant to answering the question):
3.07 CITY ATTORNEY.
(1) The City Attorney is a statutory office created pursuant to Section 62.09(12) of the Wisconsin Statutes and shall be responsible for the duties contained therein and for the conduct of all legal services of the City and
– shall serve as legal advisor to the Council, the Mayor and all departments and offices of the City.
– He shall be in charge of the prosecution of all cases arising out of the violation of the provisions of the City ordinances.
– He shall represent the City in matters in which the municipality is interested before any court or tribunal and shall perform such other duties as may be required by the Mayor or Common Council.
– It shall be the duty of the City Attorney to call to the attention of the Mayor and Common Council all matters of law affecting the City.
– The City Attorney shall be the official revisor of ordinances.
– No ordinance shall be enacted by the Common Council unless such ordinance is first referred to the City Attorney for a study respecting form and legality.
– In the revisions of the official codification of the Madison General Ordinances the City Attorney is empowered to renumber sections and subdivisions if in
his opinion this is necessary, and to make editorial changes which are minor and not substantive in nature.(Public Nuisance info omitted)
This is a Charter Ordinance and shall be effective upon sixty (60) days from passage and publication subject, however, to the referendum procedures of Section 66.0101(5), Wisconsin Statutes.
So, he doesn’t have the authority that he presumed. Or, that the Mayor tried to give him, I’m not entirely clear – the initial memo comes from Michael May and then the mayor declares the claims denied in the email in Basford’s article. Any which way, I don’t think that they can do what they did. I think this item still has to come back before the council – even if the decision at that time is that the claims have been denied by law or the council could choose to do something different.
I still think the more interesting question is: Is the city attorney fulfilling his professional responsibilities in representing the Council and the City.
