Authored Articles & Publications Oct 21, 2015

The Ethics Advisor: The Proper Roles of Staff and Elected Officials

By Ruben Duran

Third in a series by BB&K Partner Ruben Duran for the Southern California Latino Policy Center Newsletter*

Most cities in California (an overwhelming 97 percent) operate under the “Council-Manager form of government,” under which the elected councilmembers directly hire and oversee one top-level employee (the city manager) to function as a CEO and administer the day-to-day activities of the city. Other local governments employ a similar system, whether it be school board of trustees hiring a superintendent or a special district board of directors hiring a general manager.

In California, almost all local governments operate under a system that relies on the delicate balance between the elected body that sets the policy priorities of the government and the staff employees that implement those policy priorities at the direction of a chief executive or administrative officer. This power dichotomy may be encapsulated in a municipal code provision, a board policy or an ordinance or resolution that sets up a system in which the elected officials are generally prohibited from approaching agency employees “except for the purposes of inquiry.”

But what exactly does that mean? This blog examines the legal framework and practical applications of the Council-Manager form of government (and its analog forms for entities other than cities), and offers suggested best practices for elected officials and staff to ensure the smooth and successful operation of local government.

Under this form of government, the city manager, superintendent or GM (the “CEO”) holds office at the pleasure of the elected body. The CEO generally hires and fires all other employees, usually with the exception of legal counsel, which also reports directly to the elected body. This policy is based on the principle of separation of powers, which ensures that the elected officials and the CEO can perform their duties without unnecessary interference from one another. More importantly, this separation of powers makes clear to staff that they are accountable only to the CEO. This gives employees the certainty of having just one ultimate boss, the CEO, as opposed to the entire elected body, or any individual member of it.

The job of the elected body, then, is to legislate and to create the vision and set forth the policies that should guide the CEO’s work. That is not to say, however, that elected officials are without any rights under the system. For example, under the First Amendment, elected officials are protected when, in their capacity as council members, they intercede on behalf of their constituents. In 2000, a federal court held the elected officials were protected from any liability when they acted as “ombudsmen” for their constituency. The court noted that this type of advocacy was vital to representative government. Another case held that elected officials may respond to inquiries regarding agency projects under their First Amendment rights.

Practically speaking then, what does this suggest for the manner in which elected officials manage their relationships with staff? Principally, all involved should have a thorough knowledge and clear understanding of the rules. Additionally, here are five best practices to use today in your work:

  1. Criticize the project or the process, NOT the people.
  2. Do not publicly criticize staff.
  3. Do not mistake partisanship for advocacy. There is a difference between making policy and the day-to-day business of your entity.
  4. Remember that you are part of a team – don’t ask a staff member to research an issue for you and then spring it on the other board members.
  5. Don’t leave staff vulnerable to public attacks.

Recognizing the tensions that can exist within a system meant to produce the most public good and remembering the rules as they apply to our day-to-day work in our service to our constituencies is likely the best way to ensure that the public good does indeed come to fruition.

*This article first appeared on SoCalLatinos.org on Oct. 20, 2015. Republished with permission.

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

Continue Reading