Rogers considers changing role of city attorney position

ROGERS --The mayor wants the attorney with the most authority to handle city business to answer to him and not the voters.

"If I am going to be held responsible for the advice that my attorney is giving, than I need to have some bit of control over who that person is," said Mayor Greg Hines.

Such an arrangement already exists in Bentonville where the elected attorney has limited duties. He said everything works well.

Others worried about the lack of checks and balances, and the pressure on a staff attorney to please his boss to keep his job.

Chuck Thompson, International Municipal Lawyers Association general counsel and executive director, said most states appoint city council attorneys. He said a few states or cities elect the position. The idea of an elected city attorney with a hired staff attorney is an idea he has never heard before.

"It is difficult for me to get my mind wrapped around exactly what is going on," Thompson said. "It is, and has been, a struggle for cities to decide the best way to have a city attorney. I haven't heard of this hybrid."

There are advantages and disadvantages when it comes to both the elected and appointed model, Thompson said.

"Maybe an elected official has advice that is colored a bit because of their election," he said. "To do otherwise could result in an elected attorney getting bad press or the public up in arms. What you really want is an attorney that is not affected by their own interest."

An attorney appointed by the mayor also could be concerned with pleasing the mayor and not the city, Thompson said.

"As long as people understand what those influences are they will be in a better place to analyze the attorney's advice," he said.

Hines said he plans to propose an ordinance giving most of the city attorney duties to a staff attorney. Staff attorneys are hired by the city and city attorneys are elected. The city attorney still will advise the Rogers City Council and could have some limited duties, Hines said. The ordinance would have to pass the council.

The elected attorney also could receive a reduced salary, Hines said. The salary could be in the range of $10,000 to $15,000 a year.

Ben Lipscomb stepped down as city attorney Thursday after he received a $390,000 settlement from the city. The settlement ended a federal complaint filed by Lipscomb in November.

Lipscomb acknowledged advice he gave Hines led to former Finance Director Jerry Hudlow being fired. Hudlow sued in U.S. District Court and was returned to his job and awarded $630,000.

"I know the mayor had to put some distance between us for political reasons after the Hudlow case was settled," Lipscomb has said.

Hines expects the council to vacate the city attorney position at its meeting Feb. 10. It could be another couple of months before a proposal to change the duties of the position is brought forth, Hines said. He hasn't decided exactly what that proposal will look like yet.

The city attorney position is required to be elected every four years if a mayor-council form of government is used, according to Arkansas code 14-43-314.

"Any person elected as a city attorney under the provisions of this section shall perform such duties, possess such qualifications, employ such staff and be paid such salary and expenses as may be established by ordinance by the city council of the city," the law states.

Kit Williams, Fayetteville city attorney and state chairman of the International Municipal Lawyers Association, said there doesn't seem to be a set standard of duties for city attorneys in the region.

Bentonville's city attorney position is an example of a city that has limited responsibility, Williams said. He said the city gives most of the responsibility, such as handling civil cases, to a staff attorney.

Williams' position with Fayetteville is full time.

"I think there is an advantage to our citizens to have a city attorney that is directly responsible to them," Williams said. "Sometimes it is awfully hard to tell your boss that they cannot do what they want to do. I would rather my boss be the city."

A city attorney's first responsibility should be to the people who live in the city he works for, Williams said. A staff attorney, hired by the mayor, may be more concerned with the mayor, he said.

"If you are being paid less than $1,000 a month that will be a part-time job that will not involve any research," Williams said. "It will not be the attorney's responsibility to watch over city business. You lose some of the protection that the taxpayers have."

George Spence, Bentonville's city attorney, said a staff attorney can still keep the best interest of the city in mind.

"There are a lot of things that I am very heavily involved in," Spence said. "This is true of city council, quorum court, school board and the Legislature."

The amount of work an elected official does varies by individual, Spence said.

"It depends on whether you have the integrity to carry out those duties," he said. "It is not just about electing the people with the best speech. It is about electing people who have the integrity to go in and do the work."

There are concerns with giving an elected official full responsibility of city legal issues, Spence said.

"The disadvantage of the city attorney as a full-time person has now become obvious," he said. "That was the problem in Rogers. They couldn't fire him because he was an elected official."

Lipscomb's complaint with the U.S. District Court claimed the city council violated his constitutional rights when it transferred most of his duties to a staff attorney. Those duties included acting as the city's attorney in all civil litigation along with advising the council and mayor.

Three aldermen signed affidavits saying Lipscomb suggested the changes to his job duties. Hines also previously said Lipscomb recommended the changes.

Tensions between Lipscomb and other city officials seemed to escalate after an investigation into a complaint that he used his city ID to enter a VIP tent during a concert at the Walmart Arkansas Music Pavilion last summer. A criminal complaint was never filed against him.

Lipscomb also was investigated after a city employee said he offered him a Xanax along with sending harassing emails to another attorney about a district court case. No action was taken in either of the cases.

Spence said he was appointed in 2000 after his predecessor resigned. Kevin Pawlik, former Bentonville city attorney, was investigated in connection with funds missing from a hot-check account he managed. He resigned in 1999.

The Bentonville City Council decided to restructure the role of the city attorney at that time, Spence said.

Williams said bad events can occur in any political office. He said an "overreaction" can then occur.

"I think this is disappointing when that happens," Williams said. "You could lose one of the checks and balances that the government has with an elected city attorney. You then have one with no real power and the power is given to a staff attorney who owes his job to the mayor."

NW News on 02/01/2015

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