Maybe Dallas City Council Should Use a Public Defender for Its Lawyer

Categories: Schutze

Yes, I, too, love the Shakespeare T-shirt about first kill all the lawyers, and I bet I've got five good lawyer jokes to your one, but then again, I do dearly love it when good lawyers get elected to the City Council.

Dallas City Hall org chart

In Dallas, as a result of having had a city manager system for the better part of a century, the professional staff is just too good at getting out of answering direct questions by fluttering. It's always a pleasure to see them not get away with it, and usually the only one who can pin their wings to the table is a good lawyer.

But what if the flutterer is a good lawyer, too? Then we've got a real stick-pin flutter-fight on our hands, as we did at last week's council meeting (skip ahead to one hour 20 minutes, approximately, in the recording) when council members Philip Kingston and Scott Griggs, both lawyers, grilled the new city attorney, Warren Ernst, on his relationship with the council.

How could that possibly be interesting, you ask -- lawyers talking to a lawyer about relationships? Yeah, but think about it. Ernst, newly appointed by the council to be the city's top lawyer, was on the same city legal staff caught red-handed a year ago having OK'd a secret deal with a gas drilling company in defiance of a clear direction from the City Council not to do any such thing.

Ernst also was on the legal staff caught red-handed five months ago having secretly assisted Yellow Cab in what everybody now recognizes was a dirty deal to quash competition from Uber, an on-line ride-provider.

What's the relationship question? Well, it's the same painful question that has erupted from deep in the fog of Sunday morning hangovers through time immemorial: "Hey, who the hell you havin' a relationship with, anyway?"

The problem here is that the basic system of government is a menage a trois. You got the City Council, elected to set policy for the city. You got the city manager, who is hired by the council but thinks of them, often with good reason, as summer help loons incapable of tying their own shoes, so the manager goes off and sets his or her own damn policy like secret drilling agreements and a little bit of leg-breaking to help out a favored company with an unfavored competitor.

And then you got the so-called city attorney, but the question is, whose city attorney? The council's? Or the manager's?

At last week's meeting, Kingston and Griggs tried to pin down Ernst on the question. Ernst did his best to flutter away. I would have to say it was a flutter-fight draw.

Kingston said: "This is a recurring problem. The mayor's investigation specifically pointed to two of your staffers for not alerting council to the Uber issue. I don't know what your offices' involvement was ... in the secret agreement with Trinity East [the drilling company]. I am unclear on what the city attorney's policy is for when it alerts the council to an upcoming issue."

Ernst dove into some typical staff blah-blah designed to lull council members into REM sleep (usually works): "Specifically what I had in mind for this was to develop a report system for litigation matters ..."

And on and on. You are getting sleepy. Very sleepy. You are 5 years old. Your mother is calling you.

But Kingston shook it off. "Are there reasons for council members having different information from other council members?" he asked.

"That's something I continue to grapple with," Ernst answered.

Real answer? Yes. We give all of you different answers to the same question and then swear you all to secrecy about what we have just told you, because it causes you to engage in a particular form of ineffectual flailing that we find amusing.

At the end of the day, I don't really think anybody lost or won this debate. Kingston and Griggs may have scored some points by demonstrating that the relationship between the City Council and the city attorney is not anything that anybody anywhere else would put up with for even a minute. But I think Ernst did a good job, too, of giving them a civil, well-spoken, lawyerly middle finger about it.

And there we have it, Dallas City Hall, the perpetual motion machine where the buck never stops. It just goes in circles forever.

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In the movie As Good as it Gets, Jack Nicholson's character, a romance writer, had a great line responding to one of his fans:

Woman (gushing):  "How do you write women so well?" 

Melvin (smirking):   "I think of a man, and I take away reason and accountability." 

That's how I think about City of Dallas staff. I think about a private company, then take away reason and accountability.


How is this even a question?  We do not have co-equal branches of government in a city.  Everyone in the city works for the council as a collective group.  The only relationship that anyone has of any legal standing is to the council.  We have managers as in any organization with different functional responsibilities.  The city manager is not an entity with a special role.  He/she is just someone the Council delegates day to day responsibilities for managing the employees.

ThePosterFormerlyKnownasPaul topcommenter

It seems to me that Mr. Ernst is confused, specifically I think that Mr. Ernst is confused with who he is as compared to what he is.

His position is City of Attorney of Dallas.  He works for the City, he is not the City.  His position with the City of Dallas is one of those employee positions that is directly accountable to the the City Council.

As an example, think of Mr. Tom DeLay, a former Congressional Representative from Southeast Texas.  What Mr. DeLay did was very, very important to the Republican Party.  Mr. DeLay, himself, was not all that important to the Republican Party.  When Mr. DeLay became a liability to the Republican Party, he was dropped faster than a kleenex from a 5 year old with a runny nose; and, replaced with someone else to do the same job.

14-1; all of the problems of ward politics with none of the advantages.


What did you think about Ernst's response when questioned about the Texas Public Information Act?  

He appeared to be referring to some sort of non-existent, made-up law when he said that if any public information request could possibly be interpreted to include attorney-client privileged documents, then the City Attorney is obligated to tell the requestor to pound sand with respect to the entire request until such point in time as the City had duked it out completely with the State Attorney General's Office.


Griggs and Kingston were right to question Ernst about open records issues, Dallas is horrible about meeting their obligations in this regard. Once again, just an absolute disregard for the law, except when the law benefits them. 


Ernst is picking up right where Perkins left off, working for the CM at the expense of council and their constituents!


@MikeWestEast  A competent City Council would work to change the terms of the City Manager position so that it only provides for a 5 year contract during which a supermajority would be required to remove the City Manager, but that renewal of the contract would require a majority of the Council.  That would fairly quickly change the balance of power.  Of course, assuming that anyone on the council REALLY wants to do so.  Or do they just want the ability to bellyache without accountability?


@MikeWestEast  One of the problems here is a super majority is required to oust the City Manager.  All AC has to do is keep a small minority happy, and he effectively has lifetime tenure.

Also, because individual City Council members have virtually no staff, they are dependent on the City Manager for information and analysis.  By presenting biased data and presentations, and overwhelming the elected officials with information (much of it irrelevant), the City Manager can effectively manipulate the outcome of City Council votes most of the time.

This is what got Suhm and Perkins in trouble on the fracking in parks issue... they had become so confident in their ability to manipulate the elected officials that they cut a deal with a private party in which they went so far as to represent that they reasonably confident they could deliver necessary City Council votes (required to change an "inconvenient" ordinance) to seal a deal.

JimSX topcommenter


Yeah, I sure never have heard of that provision.


@WylieH @MikeWestEast 

AC is either a hell of a lot smarter than he seems, or he has some really good dirt on a majority of the council members. How else did he manage to get the job despite the taxi fiasco, or  manage to get paid 25% more than Suhm, or wheedle a contract that requires a super-majority vote to fire him. Suhm had to kiss a majority of the asses on the council to do her deals, AC need only smooch a few butts and he's home free.


@WylieH @MikeWestEast I agree those are practical logistical items that give the staff an upper hand.  An attorney should answer with the dogmatic answer that no one working for the city should intentionally not provide full info to the senior group nominally in charge of the city.  If he does not, we have problems.


Just be sure to state in the next ORR: all attorney/client information is excluded from this request. Then state your request.


@JimSX @WylieH  I've been backwards and forwards through the actual law and read the Attorney General's handbook on the Public Information Act-- I honestly have no idea what Ernst was talking about, and it didn't appear that Kingston or Griggs (both of whom are attorneys) did, either.

mavdog topcommenter

@WylieH @JimSX

believe this is what Ernst is referring to:

Section 552.107, certain "information is exempted from required public disclosure if:

1) It is information attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct...."

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