More on the City Attorney Reappointment

My decision not to support the reappointment of Susan Segal as City Attorney has gotten a bit of interest and generated some discussion.  I’m going to take the opportunity to share some additional thoughts below the fold.  To see my original statement on this reappointment, go here.

First, I want to make clear again that I value Ms. Segal and the work she has done on behalf of the City of Minneapolis.  Her supporters have pointed out her great work on the pension litigation and defending Ranked Choice Voting at the Supreme Court.  I agree that those were major successes, and that Susan played an integral role in them.  But for the reasons that I outlined – especially her handling of the Vikings Stadium opinion – I cannot support her reappointment, despite all of that great work.  I expect her to be reappointed, and look forward to working constructively with her in the future.

A few things about my statement on the Vikings Stadium opinion have gotten some comments from my colleagues, and I think I should clarify some things. 

The fact that I requested an opinion from the City Attorney’s Office in January of 2012 and only received a response in April of that year has gotten some notice.  Some of this is due to the fact that Council Member Blong Yang asked about it in the Ways and Means committee yesterday.  Ms. Segal responded that she did not recall receiving the requests from me.  I offered to share the emails detailing his requests with my colleagues so that they could see that I did indeed make those requests.

There seems to be some sort of disagreement about what constitutes a “request for an opinion.”  One of my colleagues has expressed an opinion that my request was not really a request, because it was not a formal staff direction made by the Council.  I find this a little confusing, because individual Council Members ask for opinions from the Attorney’s Office all the time.  When a CM is working on an ordinance change, for example, it is common practice to send an individual email from that CM to the appropriate attorney and ask for review.  The CAO tends to be very prompt and professional in their responses.  This situation – in which I asked for an opinion in January, again in March, and again in April before finally receiving a response – is notable for its rareness.  A response from the CAO in January that in this instance she would not provide this opinion to one individual CM, but only in response to a direction from the Council would have been appropriate and welcome.  Instead I heard no response at all for approximately three months.

All of this is a little bit of a distraction from the main concern I have about Ms. Segal’s handling of the Vikings Stadium deal, which is that, in my estimation, her opinion on the Vikings Stadium deal was wrong.  I expressed that opinion at the time.  Judge Bush has since agreed in his formal ruling.  That ruling dismisses the contortions that the CAO went through to explain how sales taxes, which are explicitly defined as “City resources” in the stadium clause of the charter, were not “City resources.”  I’d encourage everyone to read it.

 

There seems to be an argument out there that the blame for the Vikings Stadium vote belongs with the seven Council Members who voted for it, or even the Legislature and Governor who supported a bill that superseded the Minneapolis Charter, not the City Attorney.  I agree that the ultimate authority belongs with the policymakers, but that does not mean, from my perspective, that the City Attorney bears no responsibility.

Yes, the legislation superseded the Charter – but it only took effect after an affirmative vote of the Council.  In effect, the Council gave permission to the legislature to overrule our Charter.  That vote, which passed on a 7-6 majority, was itself in my view a violation of the Charter.  It is something we should not have done.

The opinion of the City Attorney made that vote to disregard the Charter possible.  At least one Council Member stated, for the public record, that she based her vote in favor of the stadium deal in large part on the opinion of the City Attorney that a “yes” vote would not violate the Charter.  A judge has subsequently ruled very clearly that this advice was wrong.

The City Attorney must be able to give the Mayor and Council legal advice that we don’t want to hear.  As Mayor Hodges said at the Ways and Means committee meeting on Monday, we don't always have to like the City Attorney's opinion, but we should always be able to trust it.

 

Well, I did not trust her opinion in this case, and I think my distrust was warranted.  I do not believe that she gave us sound legal advice about the stadium deal.  I believe that under considerable pressure from powerful policymakers – the Governor, majorities in the legislature, the Council President and a slim Council majority – she developed a contorted legal justification for the answer that these powerful policymakers wanted to hear; a justification that has since been rejected by the courts.  In doing so, Ms. Segal did not represent the interests of the whole City enterprise, including the six Council Members who voted against the stadium deal.  But more importantly, I do not believe that in this case the City Attorney gave the City good, independent, and accurate legal advice.

In part due to the City Attorney’s failure to give good, independent, and accurate advice, the City Council made what is, in my estimation, a terrible mistake.  There is enough blame to go around, and most of it belongs with the policymakers who voted for the stadium deal.  But in my opinion, Ms. Segal bears some of the responsibility for this public policy failure, and that is a major part of why I will vote against her reappointment this Friday.