This is not what you want to hear. Not when you’re applying to be the top lawyer for Los Angeles County. Not when you’re getting ready for interviews, and you’re trying to show your stuff to these county supervisors who passed you up for the job six years ago. No. You do not want one of these folks with power to hire (and fire) making a very public statement to a roomful of 1,000 hooting and shouting protesters that you, the temporary, interim county counsel, one of the finalists for the permanent job, have just written “a failed opinion.” And that an outside lawyer must be brought in to clean up your mess.
Performance reviews don’t get any more scathing, or public, than that.
That was Raymond Fortner Jr.’s life on June 8, when the controversy over a small cross on the county seal, and the decision to remove it under threat from the ACLU, overshadowed more mundane county disasters like poorly run jails and failing hospitals. Fortner’s legal memo told it like it was: Most courts have struck down crosses on government seals. But the response from two of the five supervisors was less than enthusiastic.
“This opinion that was given to us could have been written by the ACLU, because of its bias and slant toward taking action to support the ACLU’s position,” Supervisor Michael D. Antonovich declared during the contentious public meeting.
Board chairman Don Knabe, who found himself with Antonovich on the losing end of a 3-2 vote to remove the cross, was even more to the point. “County counsel wrote a three-vote opinion,” Knabe complained.
It’s the chronic occupational hazard of every lawyer who is hired to advise a body of feuding elected officials. Your advice or analysis may be legally impeccable. But you’re playing a political game. You can be the perfect lawyer and still lose. Or you can be politically deft but fail to do your duty as an attorney.
Unlike the Los Angeles city attorney, who is elected and brings a political base and a comfortable independence, the chief county counsel is always three votes away from being dismissed for any reason, or no reason.
“In a situation where you’re giving an opinion, you have to be honest about what the law is,” said veteran Santa Clara County Counsel Ann Ravel. But she added, “Usually issues are not so clear. And then there are other factors to be considered.”
Fortner is vying for the job with two colleagues, Donovan Main and Steven Carnevale, and two outsiders, Los Angeles Deputy Mayor Roberta Yang and Anthony Ching, general counsel to a Texas-based and Taiwan-owned energy company, Continental Carbon.
All bring experience, and baggage. Main, with a track record in the office that dates back to 1970, has been criticized in recent months for his advice on the Brown Act, the state’s open-meeting law. Carnevale, who is assigned to the Metropolitan Transportation Authority, is highly regarded but annoyed some board members with his assertion during the MTA strike last year that Mayor James Hahn and City Council Members Antonio Villaraigosa and Martin Ludlow couldn’t participate in talks because they took union donations. A judge overruled him. Ching, a true outsider with private-sector experience and outlook, has drawn a thumbs-down from county employee unions upset over what they say was his role in union-busting during a contract dispute in Oklahoma. Yang, with federal prosecution and private firm experience before joining Hahn’s office, is opposed primarily by animal-rights activists unhappy with her backing of a city department head. And then there is Fortner, a lawyer with 36 years of experience — and two supervisors angry at him. For now.
The board’s choice matters a great deal. As Supervisors Knabe, Antonovich, Gloria Molina, Yvonne Burke and Zev Yaroslavsky interview the five over the next several weeks, they will be selecting a key player to sit at the center of an often secretive county government. Decisions by the county counsel affect millions of dollars in contracts. At a time when the city of Los Angeles is awash in scandal over allegations that contracts are tied to campaign donations, Los Angeles County remains an unexplored warren of suspected paper trails from political contributions to development approvals to lucrative county deals.
By playing a complicated game of alternately coddling and cautioning the supervisors — understanding their competing political agendas, playing to their egos, managing their need to extend contracts or other county favors to loyal allies — the next county counsel will play a huge role in determining whether government here continues a slow and often halting process of opening up.
Searing scrutiny and critique of Los Angeles County’s legal operations came, ironically, on the watch of a man who threw open the doors of his office and welcomed in reform following decades of unquestioned secrecy. Lloyd “Bill” Pellman shocked his legal staff by actually visiting them in their offices and speaking to them in the hallways.
This was something new. County Counsel De Witt Clinton was notorious for his standoffish manner and his insistence that he had exclusive authority over the county’s legal affairs. For years, the board members made this system work for them, escaping accountability for top-level decisions by deferring to Clinton and invoking the attorney-client privilege. But as times and county supervisors changed, Clinton wore out his welcome and retired. The last straw was a proposal that the county pay hundreds of thousands of dollars to settle a personal-injury lawsuit. The twist in an otherwise typical case was the revelation, at a fairly late stage, that the lawyer for the party suing the county and reaping the settlement dollars was Clinton’s own son.
Pellman got the job in 1998 and immediately moved to bring the supervisors into his decision-making process. But the openness invited criticism, and over his six-year tenure Pellman angered board members who believed he was improperly managing a wealth of contracts with outside law firms. Under pressure from open-government advocates, the board and Pellman hired an outside lawyer for advice on whether to support new laws to guarantee openness. No, said the lawyer. The rub: He was J. Kenneth Brown, lead partner in the firm of Brown, Wilson & Canzoneri, which routinely is referred legal work from the county counsel (and which lost a key Brown Act case for the county).
The appearance of inside dealing came up again when Pellman, on his retirement, joined Brown’s firm. It was not the end of the controversy. In winnowing résumés for Pellman’s successor, the supervisors — who last time out each picked a key staffer to narrow the field — this time each picked a trusted lawyer from outside the county system. Knabe picked Brown. The selections remained secret, until a reporter from the Daily Journal found out.
When the paper reported that Brown is helping to pick a lawyer who will, in turn, determine how much work Brown’s firm will get in the future, open-government activists were furious.
“Is no one concerned about the perception that you’re in Ken Brown’s pocket?” asked journalist Karen Ocamb, head of an open-government group called the Sunshine Coalition.
The question angered Knabe, who responded that he picked Brown for his integrity and experience. After all, the other picks were insiders as well. Molina called on attorney and mayoral candidate Bob Hertzberg, whose brother has been a member of the supervisor’s staff for years. Antonovich selected his campaign treasurer, former state Insurance Commissioner Richards D. Barger, whose daughter is the supervisor’s chief of staff. Yaroslavsky chose former City Administrative Officer Keith Comrie, and Burke picked retired judge Thomas Thompson. But unlike Brown, none of them vie for county contracts.
Actually, an earlier panel of insiders went through the 55 qualifying résumés and whittled them down to eight. That committee’s existence, and the members’ names, weren’t exactly secret. But they weren’t exactly publicized, either. They included Ann Ravel, the Santa Clara county counsel; Kurt Peterson, managing partner at the firm of Reed Smith; Los Angeles Unified School District counsel Kevin Reed; and two high-ranking Los Angeles County officials, Chief Administrative Officer David Janssen and personnel chief Mike Henry.
Two candidates then dropped out, so all Brown and company really did was eliminate one résumé and forward the remaining five to the Board of Supervisors.
The pool of finalists is a familiar one. Fortner, Main and Yang have been through the process before, having lost to Pellman the last time. Carnevale is well known to the supervisors from his role as counsel to the MTA. Ching would be virtually new to the public sector, although he began his career as a county prosecutor in Northern California.
At least one supervisor is said to be insisting that the final selection be unanimous. That will be tough. Each board member will want a county counsel who will see issues in his or her own way, and as the county-seal dispute illustrated, it is impossible to tell when a legal matter will become political, or how strongly the elected officials will feel about it. And whether they will hold the lawyers responsible.
“You’re often there just to take the heat,” Ravel of Santa Clara County said. “Some lawyers understand that, and learn not to take it personally.”