Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
There is a legal dimension to most issues that a Select Board will consider, so professional legal counsel is a critical component of effective town governance. The oath taken by Select Board members upon entering office reflects this reality: “… to uphold and discharge all the duties incumbent upon me … in accordance with the bylaws and charter of the town, the laws of the Commonwealth, and the constitution of the United States.”
Few Select Board members enter office with a familiarity with the law, and many may underestimate the time and importance associated with legal matters. Towns and board members that do not receive (or heed) good legal advice may place the community in jeopardy, risking the loss of time, money and reputation.
Most towns retain legal counsel, though there is no specific state statutory authorization or direction to appoint one. There is, however, a specific statute defining the role of legal counsel. The term “city solicitor,” according to state law,1 “shall include the head of the legal department of a city or town.” A statutory reference to a city solicitor is applicable to the head of the law department of a city or town, whatever the title of the position.
This chapter uses the terms “town counsel” and “chief legal officer” interchangeably. Communities may refer to their legal department as the “law department,” “town counsel’s office,” “legal department” and the like, but there is no real difference between the terms.
There is no state statute governing the duties of the chief legal officer of a community. The duties and responsibilities are typically set forth by town charter and/or bylaws. Typically, the town charter would include the creation of the position of chief legal officer or head of the legal department, and set forth the duties and responsibilities in varying degrees of detail.
The charter and bylaws usually address matters such as the appointment of legal counsel, authority to represent the community, and authority regarding the settlement of cases, compensation, law department organization, and the like.
Typical duties and responsibilities for a chief legal officer of a community include some or all of the following (though this list is not all-inclusive):
Various state and federal laws also provide for specific roles of local counsel and may need to be consulted depending on the particular issue.
There is no statutory set of qualifications for municipal counsel, but at a minimum he or she needs to be an attorney licensed in Massachusetts. In the absence of a specific requirement under local law, a community is free to establish whatever qualifications it believes to be appropriate (understanding that bylaws are subject to approval by the Attorney General’s Office). These criteria may include:
Municipal counsel, by whatever title, is subject to the state’s conflict-of-interest law and any local conflict-of-interest law, as well as the Code of Professional Responsibility for attorneys. The Massachusetts Municipal Lawyers Association also has a statement of principles concerning the conduct of municipal counsel.
The Select Board is advised to develop and maintain a good working relationship with the town counsel, who is there to assist the board in the performance of its duties. The Select Board needs a strong and effective management team, and the chief administrative officer (e.g., town manager or administrator) and town counsel are key players on that team. Ultimately, the Select Board will make the final key decisions on legal matters, but to make those decisions properly, the board needs to work with its legal counsel, and its legal counsel needs to work with the board.
If a member of the Select Board is also an attorney, this member should not be relied upon to provide legal advice to the town. Such an arrangement could expose the town or the member to unnecessary risks, in addition to potential concerns about qualifications.
Tips for maintaining a good and effective relationship with legal counsel include:
In order to control costs and to have effective local administration, some Select Boards adopt local policies regarding access to counsel. Some towns have a requirement that department heads and employees go through the town manager or administrator, the Select Board chair, or the full Select Board in order to consult with town counsel. Other communities allow direct contact with town counsel.
The policy regarding contact with town counsel often depends on the method of compensation. If counsel is paid on an hourly basis, there may be a concern that costs will get out of hand if everyone may contact counsel directly. Even in instances where counsel is on a salary or retainer, it is not advisable to create or permit a situation where counsel is inundated with requests and thus cannot attend to (nor even be aware of) town priorities. A proper working relationship with town counsel should lead to the development of the best approach for the community regarding how contact should be handled.
Town department heads, boards and employees sometimes defer to town counsel on matters for which they are responsible. Town counsel should certainly advise these individuals and help them make the right decision, but should not make decisions that should and could be made by others.
The selection of a chief legal counsel for a municipality involves matters such as the following:
While this refers to regular or special counsel, the same issues typically would apply to the appointment of an assistant or special municipal counsel.
There are many options for the relationship of municipal counsel to the community. These options include in-house versus outside attorney or firm; salary versus hourly versus retainer; or combination of formats or other variations. There is no one plan that works best for everyone. Factors such as the amount of work involved or anticipated, and the town’s financial situation are often key considerations in deciding what format is best for a given community.
Any community can create the position of chief legal officer and call it whatever it chooses. Even if there is no specific local law, the chief executive board or officer of a community could, under prevailing views of local municipal authority, have the inherent authority to appoint an attorney. Over the years, however, there have been legal disputes over the issue of who has the authority to hire legal counsel for a municipality. This has resulted in cases where the authority of a municipal department to engage legal counsel is called into question, or the obligation of a community to pay an attorney who has provided legal services is at issue.
Under state law,2 a town is authorized to sue and be sued and may appoint agents of the town for those purposes. Typically, the Select Board is appointed by vote or bylaw as the agent of the town for purposes of such suits. This does not mean, however, that the agent so designated is necessarily the only one who can prosecute or defend suits on behalf of the town. Other laws, discussed here, may authorize other officials to bring such suits.
It is important that the Select Board be involved in any decision to bring legal action, unless the law specifically authorizes another party to do so. Litigation is expensive and needs to be controlled, usually by the Select Board or chief administrative officer of the community. Coordination is necessary in order for a community to properly manage its legal affairs and litigation.
Over the years, problems have arisen in some towns when a local board seeks to obtain its own legal counsel without the approval of the Select Board. In one noteworthy case, a board of public works sought to engage its own counsel instead of using town counsel. The Supreme Judicial Court held that the board of public works had no such authority in the absence of a special application to the Select Board or a vote of town meeting. “It is conventional learning,” the court ruled, “that a municipal department is not permitted to bring suit for the town without specific authorization from the town or from agents entitled to act for it — unless, indeed, there is governing legislation conferring the power on the department. The rule serves to prevent confusion or conflict in the direction and management of municipal litigation.”3 The Supreme Judicial Court also recognized the common practice of a municipality organizing its law department under an appointed counsel as having the “purpose to control expense and improve management.”
The typical method for the selection of the regular municipal counsel is by appointment. Depending on the provisions of the local charter or bylaws, such appointment is typically made by the chief executive officer of the community. This could be the Select Board or the town manager or administrator. Where a single official makes the appointment, there is often a requirement that the appointment be approved or ratified by the Select Board. A variation of the specific need for approval by some other local authority is found in communities where there is a requirement that the authority making the appointment must submit the name to the other body, which must act to reject the appointment or it is presumed to be approved.
In at least one Massachusetts community, legal counsel is an elected office, but this is not viewed as a wise method for selecting a municipal attorney.
From time to time, a community may find it necessary or beneficial to hire a special or outside counsel. Reasons for this include:
As with the appointment of regular municipal counsel, one must look to the local laws to see which procedure, if any, has been set out for the appointment of special counsel. Typical provisions address the following:
There has been a growing need to employ special counsel from time to time to respond to particular legal matters, although doing so may not be viewed favorably by some members of the public. A regular town counsel serves an important role in recognizing when there is a need for special counsel and recommending it to the town. A community is best served by a municipal counsel who employs the most appropriate strategy in each legal matter, and does not overlook the possibility of employing a “specialist” should the need arise. This is an important function of any manager, and the community needs to recognize the town counsel’s advice in that regard.
As with any appointment, a Select Board should establish clear criteria for its decision. In the case of legal counsel, the board may want to consider the quality of service provided in making a decision on reappointment, and, accordingly, to consult with town officials who have access to counsel. Any evaluation process should be undertaken objectively and with the knowledge of all parties, and with sufficient time to make an informed decision.
The Select Board may wish to consider factors such as:
In certain instances, specific statutory authority exists for a board or department to hire its own legal counsel.
A growing issue in municipal legal services is liability coverage for municipal counsel. One could presume that, if the municipal counsel is an official or employee of the community, he or she is covered by liability insurance in the same way as any other town official or employee. But some municipal liability insurers take the position — either based on practice or language in the policies — that attorneys for the municipality, regardless of the relationship (regular or special, employee or independent contractor), are not covered by the town’s liability insurance.
The issue is not legal malpractice as much as it is liability if the municipal counsel is sued by someone for something done while acting on behalf of the municipality. It should also be noted that a municipality has certain obligations and options to indemnify employees and officials under state law.11 Insurance should be considered when legal services are engaged.