Midweek Perspectives: Law and the mayor's order

Firing the city solicitor for an unfavorable opinion sets a dangerous precedent

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Last week Mayor Bob O'Connor fired city Solicitor Susan Malie, along with the chief of staff and finance director, for "failing to carry out his policies." At first blush, one might assume that lesser officials in the mayor's administration need to follow his policies and that firing dissidents is normal and proper. But the firing of Solicitor Susan Malie does not fit so easily into that mayoral prerogative.

   

Marvin Fein is an associate professor at the University of Pittsburgh School of Law and former deputy city solicitor under Mayor Richard Caliguiri (proffein@aol.com).

   

According to the news reports, her transgression was issuing a legal opinion that favored the position of one warring faction in the mayor's office over the other faction's position. Presumably this opinion was based on state law, the Home Rule Charter and city ordinances, and its only flaw was that it was not the opinion one faction in the mayor's office wanted her to issue.

By firing the city solicitor because her legal advice conflicted with a desired political objective, this administration has set an extremely dangerous precedent. It has in effect served notice that it will lease out the office of city solicitor to anyone who will issue opinions that coincide with the mayor's personal and political ambitions.

Historically the chief legal officer of any organization is never to act in that way. And more important, executive officers who are required to act solely within their legal authority should not exert pressure on those lawyers to issue anything but legally sound opinions.

In the recent past our country suffered greatly when then President Nixon ordered Attorney General Elliott Richardson to perform an illegal act, fire Special Prosecutor Archibald Cox and abolish the office. When the attorney general refused, President Nixon fired him and then his chief deputy and in what became known as the Saturday Night Massacre, went down the successor line until he found an assistant attorney general who would fire Cox. Fortunately, the courts stepped in and the office of special prosecutor survived; the president who wrongfully fired an attorney general did not.

Like the federal attorney general, the city solicitor serves an important legal function and deserves proper respect from the office of the mayor. Unlike administrators in policy positions, the city solicitor does not serve the mayor. The Home Rule Charter designates that the solicitor is to act as attorney for the city, as a municipal corporation, City Council and the various units of government. It does not designate that the solicitor is to act as attorney for the mayor. (Yesterday, council member Tonya Payne introduced a resolution seeking a lawyer for City Council exclusively.)

Former city solicitors have included judges and justices of the Court of Common Pleas, Commonwealth Court, state Supreme Court and the 3rd U.S. Circuit Court of Appeals. Employees in the office have gone on to distinguished careers on the bench, in private practice and in academia. Those attorneys achieved those successes by issuing honest opinions based solely on the law and never before has any city solicitor been fired for issuing one of those opinions.

It is extremely dangerous for any government or private official to bend the rule of law by threatening or actually firing chief legal officers whose legal opinions conflict with attempts at overreaching. We have seen that far too often now in the private sector, when chief executive officers bankrupted their companies because their lawyers and other close advisers did not tell them their actions were illegal. When it happens in the private sector, people lose money, jobs and security. When it happens in the public sector, we lose our faith in government and in our elected officials, which strikes at the core of our faith in democracy.

If a mayor can fire a city solicitor for issuing a legal opinion that conflicts with political policy, how can we be assured that government will operate legally and honestly? We can only hope that this is an isolated case and the mayor will show more restraint and respect for law and those who interpret it in the future. Otherwise a long tradition of trust between the city residents and the city solicitors who are empowered to assure an honest, legal government may be coming to an end.



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