Surprise council overturns ordinance directing attorney to report to city manager

Repealing an ordinance that had the Surprise city attorney report directly to the city manager was the first item — literally and figuratively — on the agenda of a reconstructed City Council.

That die was cast in the Aug. 30 primary election when voters chose newcomers Jim Hayden and Ken Remley in council races against two of the supporters of the ordinance in October 2015 — Jim Biundo and Rachel Villanueva, respectively.

Tuesday night, Mayor Sharon Wolcott and councilmen Todd Tande and John Williams joined Hayden and Remley in voting in favor of the ordinance’s repeal. Councilmen Skip Hall and Roland Winters voted to retain the ordinance.

“It has long been the practice of the City of Surprise, as well as 91 of 93 cities in Arizona to adhere to a reporting structure where the attorney reports to seven elected officials — elected by the residents of Surprise to represent their voice,” Mayor Wolcott said during the meeting. “That structure was turned aside in 2015 by four of seven members of the City Council against the advice of outside counsel. … Policy making should be hard. It should require open debate. And it must be supported by a system of checks and balances that puts the thumb on the scale — not of a political outcome — but in favor of the entity we all love, the city of Surprise.”

Councilman Hall originally proposed the change the attorney’s reporting line in June 2015. He was the first to speak during the council discussion Tuesday.

He congratulated City Manager Bob Wingenroth and City Attorney Robert Wingo for their collaboration since the ordinance was passed. He also said that under the city’s council-manager form of government, all seven council members have an equal role in terms of city policy and individual consultation by a council member with the city attorney should be rare.

“I’m concerned that if tonight’s vote returned the reporting of the city attorney to the city council that the day to day service culture of energy and focus in the legal department will be diluted and confused,” Councilman Hall said. “When I brought the reporting change forward the impetus of the change was non-compliance of (a city ordinance), which discusses non interference by council. This change was to remedy any undue political influence exerted on the city attorney.”

Councilman Williams said in voting against the ordinance originally, his main concern was what could happen under this setup down the road if the city manager and city attorney were not the well liked, community oriented people manning those roles today.

“The city attorney needs to act independently of any personality, administrative or elected. The client is the city itself, not and individual or department specific item or community member,” he said.

Councilman Winters said after taking his seat in 2014, he frequently heard from constituents about the city’s legal battles with the Surprise Center Development Corporation over the downtown land surrounding the civic center.

Both parties agreed to the framework of an 11-point settlement agreement signed in May in the early months of 2016, after the reporting change came into effect.

“Our city manager took the initiative to strike out a conversation with the developers to come to some kind of an agreement,” Councilman Winters said. “Since that initial contact with our partners, we have one project already breaking dirt. We’ve made headway. At the last meeting, this council authorized another project to go in at Bell and Civic Center. We’re making progress. Now we’re going to take two steps back and start over again?”

In his first council meeting, Councilman Remley said the change never should have been made, than in essence having a city manager as “boss” could have undue influence on the legal advice given by the attorney.

“The city attorney must feel totally unfettered and independent in the advice he gives, not only to council but to any one individual on council,” he said. “I understand the controversies we had come about in the city with its development. Those things can be worked through. But the independence of the city attorney should never be threatened.”

Councilman Hayden proposed the agenda item during the Jan. 20 only spoke briefly on the matter, saying the ordinance had created an unnecessary filter.

While reiterating why he voted against the ordinance originally, Councilman Tande said there should be ways to ensure city staff and the city attorney’s office work together.

Earlier in the meeting, Councilman Winters commented that the flow of information among departments, boards and the entire council has improved since the ordinance was enacted.

Councilman Tande voted for the repeal of the ordinance for reasons along the same lines as Councilman Williams. However, he proposed dividing the motion into two questions with one addressing goals in terms of information flow.

“I think if we have some metrics that are agreed upon by both the city attorney and the city manager so the staff has a comfort level that things are happening on a regular basis,” Councilman Tande said. “I also agree that not any one of us should be able to direct the city manager, city clerk or city attorney. The case where I disagree a little bit is I don’t have a problem with any one of us going directly to the city manager or city attorney and asking for legal advice on an issue or what’s going on in the state on an issue.”

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