Government Attorneys Shouldn’t Give Political Legal Advice

Going to the city attorney or county counsel for outside legal advice is like going to a proctologist for a head injury. Yes, they are doctors—but they are not the right kind of doctor. Moreover, government attorneys do not represent individuals, they represent government entities and their advice on legal matters pertaining to political questions is often wrong.

The latest example involves San Jose Councilwoman Magdalena Carrasco. She dutifully asked the city attorney for legal advice regarding a trip to New York. The advice cleared the way for her to take the trip based on the counsel given. But the analysis was incomplete. The city attorney, Rick Doyle, correctly looked at the issue strictly from the city of San Jose’s point of view. He did not look at the issue from Carrasco’s entire situation—she was also an East Side school board member at the time and still restricted by law on gifts to elected officials.

The city attorney did not take this detail into account and he was not required to—Carrasco was a council member-elect, and not yet a client of the city attorney.

Now, Carrasco has to deal with the political and legal fallout of breaking state law by accepting a $2,400 trip from the Chamber of Commerce. Unfortunately for her, she sought advice from the wrong counsel; she should have retained her own private attorney.

Carrasco is not the first person who was ill served by a government attorney. I have seen first hand with several of my own previous clients.

Years ago, John McLemore relied on the Santa Clara city attorney regarding a conflict of interest vote—his wife had stock in Intel. McLemore was given the wrong advice, and as a result he was fined $10,000 by the FPPC. He could have appealed the decision and won in a court of law, but the cost of doing that was more than the FPPC fine. It didn’t make economic sense and he had to live with the consequences.

In Cupertino, the city attorney ruled “incorrectly” that Congressman Mike Honda could not sign a local ballot argument. A less sophisticated campaign would have amended the statement and taken the congressman’s name off of it. Instead, the organizers sued the city and won the case, and Cupertino ended up paying the legal costs for both sides.

More than a decade ago in Campbell, the city attorney sent a letter to a candidate warning them not to use the logo of the city or any police officers in their campaign literature. This made the newspapers and may have cost the candidate the election based on a published story and the deference given to the city attorney position. But, once again, it was the wrong legal analysis. Campbell’s logo is not owned by the city, but by the people of who live in Campbell. There is also a huge difference between political speech and commercial speech—a distinction many government lawyers fail to grasp.

Most government attorneys are competent in their area of expertise. But it has been my experience that they do not understand distinctions of a political nature. Moreover, they have an inherent conflict of interest in giving advice to politicians when their client is the government entity they serve.

You would be better off asking Josh Koehn for legal advice on these issues than a government attorney who does not represent you.

Office holders should be fully advised that any advice coming from a government attorney is for the benefit of the entity they serve and not personal. Moreover, they should decline to give political advice to their office holders and advise them to seek their own counsel.

There many types of doctor, and most of them are not competent to perform brain surgery. So it is with attorneys. Seek competent counsel.

 

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