Voters considering the race for Seattle city attorney may be looking at the two candidates' policy positions, résumés, or campaign donations. Seattle City Council member Mike O'Brien just wants someone who won't fuck him over. On that question, the answer is easy for him. "I need someone I can trust," O'Brien says. And he doesn't trust Scott Lindsay.
Lindsay has publicly opposed two of O'Brien's key homelessness efforts: one to reduce encampment sweeps and another for people living in vehicles.
Lindsay has weighed in on other city council debates. In June, about a month before all nine city council members voted to approve a city income tax, Lindsay questioned its legality. In an e-mail thread with several local attorneys, Lindsay said the tax "violates the state constitution on its face." (Now Lindsay says the legal obstacles for the tax are well known and he would "absolutely fully defend" the new law if elected.)
Lindsay wasn't the city attorney when he came out against O'Brien or the income tax, so he wasn't violating any ethical rules. But if he wins, he could find himself defending legislation he has opposed or questioned in public and working on behalf of council members he has fought against.
Like O'Brien, Lindsay's opponent, incumbent Pete Holmes, says Lindsay's stated positions would make it impossible for Lindsay to have a trusted, confidential relationship with city council members. But Lindsay says an independently elected city attorney should speak their mind. He claims he could "firewall" himself from legal issues when council members don't feel comfortable being represented by him.
The race for city attorney has largely been overshadowed by the races for mayor and city council. But the candidates are debating the same hot-button issues, like homelessness, the treatment of people arrested for drug crimes, and police reform. Lindsay's history of wading into city affairs throws another question in the race: What exactly is the city attorney's role? Should they be a policy crusader or neutral counselor? Is it possible to do both?
"This is not new territory," Lindsay says, citing conflicts of interest at law firms. "But the idea that the city attorney needs to be politically agnostic on issues of great importance to the city is just silly."
Pete Holmes is a two-term incumbent selling a track record of reducing cannabis prosecutions, defending laws like the city income tax, and suing pharmaceutical companies over the opioid epidemic. Lindsay, touting his work in former mayor Ed Murray's office and endorsements from high-profile police reformers, is promising to reduce property crime while also working on diversion programs to break the "street-to-prison pipeline."
He has criticized Holmes for his office's use of expensive outside counsel, for not doing enough to advocate for diversion programs for low-level offenders, and for a decline in domestic-violence prosecutions. Holmes has defended his work. He argues he has supported some diversion programs but he's limited by budgetary constraints. On domestic violence, Holmes says cases are going to the county prosecutor instead of the city and Seattle police officers don't have enough investigators focused on the crime.
Holmes has tried to go on the offensive too—mostly focusing on Lindsay's ability to work with other elected officials.
"One of the things that is vitally important if you're going to be a trusted counselor who's going to provide good legal advice is that your [clients'] early ordinances and the like are not leaked and not unfairly commented on," Holmes said during an early-morning candidate forum with members of the chamber of commerce in August. (Lindsay had recently published a not yet public draft of an ordinance from O’Brien to support people living in vehicles.)
The mayor and city council members, Holmes said, "need to know that they can come to me with their ideas. They need to know that if they have a policy objective, they can talk to me about it and have me, in confidence, point out the land mines and the pitfalls. That's what a trusted counselor does."
Lindsay takes a different approach. "Yes, there absolutely is, as Pete articulated, a duty to provide attorney-client privileged communications to clients," he said. "But there's also a duty to the city to talk about and lead on important policy questions affecting the city. How we enforce the law on people who are living outside and unsheltered is one of the number one questions facing the city of Seattle right now... The city attorney should be outspoken and leading on those questions, not just a contract attorney to the council."
In an endorsement interview with the Stranger Election Control Board, Lindsay repeated his comments about Holmes acting merely as contract counsel. "Absolutely untrue," Holmes shot back. "Ask Mike McGinn if he feels that way." Holmes and former mayor McGinn clashed publicly in 2011 over the downtown deep-bore tunnel project. When Holmes sued to try to stop a ballot measure over the tunnel, McGinn questioned the city attorney's authority, saying he didn't have a client in the case. Holmes's office emphasized its role as independent of the council and the mayor.
There is no apparent legal consensus on how a city attorney should express his or her views on city issues.
Former assistant city attorney for Seattle Stephen DiJulio says the role of the office has shifted over time. Some city attorneys have written opinions unpopular with the mayor and city council members and some have led on policy issues. Take, for example, former city attorney Mark Sidran's crackdown on panhandling. Others have been more deferential.
"It is a personal philosophy," DiJulio says, "and not necessarily a constraint on the way the office has operated."
But Hugh Spitzer, who teaches local government and municipal law at the University of Washington School of Law and worked as legal counsel to the mayor in the late 1970s, says he takes a "fairly conservative" view of the office.
Seattle is the only city in Washington with an elected, rather than appointed, city attorney, Spitzer says. Either way, he believes that person's job is primarily to represent the city council and the mayor.
The city attorney has authority over which crimes the office should prosecute, Spitzer says. But on other issues, "the job of that office is simply to advise other offices," he says. "The city attorney should generally stay out of the policy business." (DiJulio has not donated to either candidate. Spitzer gave his $100 in democracy vouchers to Holmes this year. Lindsay is not participating in the voucher program.)
If Lindsay is elected and policies that he's publicly questioned the legality of end up in court, he may have to delegate those cases to other staff in the office, Spitzer says.
"Most candidates [for city attorney], when they run, they get all excited about policy things," Spitzer says. "Then when they get in the job, they say, 'Oh, my job is I'm just supposed to represent these people.' And they calm down really fast."
This post has been updated to reflect that Holmes' office is suing multiple pharmaceutical companies, rather than just one.