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July 28, 2014

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LAS VEGAS CITY HALL:

Whose influence engages city’s expensive legal tangles?

Battles have cost Las Vegas lots of precious general fund dollars

Las Vegas City Attorney Brad Jerbic

Las Vegas City Attorney Brad Jerbic

During his 16-plus years as Las Vegas’ city attorney, Brad Jerbic has waged a number of battles royal on behalf of the city.

These have included the fights to stop solicitation on Fremont Street, prevent people from feeding the homeless, take private property for redevelopment and, most recently, to rescind a new McCarran International Airport flight path over Summerlin.

These legal scraps have cost the city lots of money — sometimes several hundred thousand dollars per case — for battles more often lost than won. Of these four major battles, the city prevailed only in some of the property rights cases.

It’s a poor track record, legal observers contend.

But is that the city’s fault for pursuing and often losing expensive cases based on political rather than legal calculations, or the product of a system in which the individual giving the city legal counsel — in this case Jerbic — serves at the pleasure of the city’s elected officials?

For those looking to assign blame on a person for the city’s poor courtroom record, the most obvious culprit would be Jerbic.

But that conclusion would ignore the role Mayor Oscar Goodman and City Council members, whom Jerbic answers to as his “clients,” have had in aggressively pursuing policies through the city attorney’s office. And in cases such as the Fremont Street solicitation, it’s Jerbic’s obligation to defend the city when it’s sued over an allegedly unconstitutional ordinance.

Observers wonder how often — and how forcefully — Jerbic counsels Goodman and the council against taking the positions they do.

“There has to be a point where the city attorney should be able to say to the City Council: ‘This is wrong,’ ” said veteran attorney Chuck Gardner, who’s gone up against the city in eminent domain cases.

But Gardner added that there’s often a fine line between the city attorney concluding a request is “absolutely wrong” and simply something he disagrees with politically.

Jerbic said he gives the best advice he can to the council — and sometimes that means arguing forcefully that policies are faulty, and that lawsuits should not be filed. He said he’s ethically bound not to pursue lawsuits or defend ordinances that have no conceivable justification.

“I cannot take a case that I don’t believe in good faith has either policy or legal merit,” Jerbic said. “I don’t joust at windmills. It’s not good for taxpayers and it’s not good for the law.”

The most recent significant case Jerbic’s office pursued was a suit against the Federal Aviation Administration, arguing that the federal agency did not properly conduct environmental studies and so should not have begun allowing “right-turn flights” taking off from McCarran in March 2007.

The flights — so-called for the directional change the planes make after leaving McCarran — were criticized for increased noise along the densely populated flight path, which includes many tony Summerlin neighborhoods.

Ward 2 Councilman Steve Wolfson, whose district includes parts of Summerlin, took the lead in fighting the policy. According to Jerbic, Wolfson and Goodman, who are both lawyers, called him to ask what the city could do.

Jerbic recognized that his office didn’t have the expertise to fight this kind of court case, which consisted of a somewhat technical argument before the 9th U.S. Circuit Court of Appeals. So the city hired a special outside counsel.

At a City Council meeting in April 2007, Goodman said that because of claims that the FAA violated environmental laws and didn’t just unfairly subject residents to noise, the odds of the city prevailing rose to 50 percent from 20 percent.

Last month, the court rejected the city’s claims, concluding that the FAA did not act arbitrarily when it changed the flight path.

The city spent $375,000 on the case — not including the additional time Jerbic and two of his top assistants spent monitoring the case, Jerbic said. That money came out of the city’s general fund, he said.

The city could have appealed the decision to the U.S. Supreme Court, as it did in the Fremont Street case, but elected not to.

“I will not support a move to continue the legal fight, as I don’t believe it is financially prudent in these tough economic times for the city, nor do I hold out hope for a different outcome at the U.S. Supreme Court,” Wolfson said in a written statement shortly after the court’s June 12 decision.

Goodman was out of town and could not be reached for comment.

Jerbic said the FAA suit was winnable, and worth the cost. “I’m convinced now, as I was then, that we absolutely had a leg to stand on,” he said.

When the city loses, the costs sometimes go beyond the time and expense it took to argue a case.

In the Fremont Street First Amendment case, for example, which has been ongoing since 1997, the city has been forced to pay hundreds of thousands of dollars in legal fees to the ACLU of Nevada, said the group’s general counsel, Allen Lichtenstein.

In cases where the city and the ACLU have gone head to head, it’s usually been over ordinances the ACLU believed were unconstitutional. Most of the time, the courts have clearly agreed, throwing out city ordinances banning handbilling and solicitation at the Fremont Street Experience and the 2006 ordinance that prohibited people from feeding “indigents” in city parks.

Some observers question whether Jerbic, and for that matter city taxpayers, are served by a system under which the city attorney serves at the pleasure of the City Council but doesn’t answer directly to voters.

In August of 1992, Jerbic became the first Las Vegas city attorney to be appointed by the City Council, headed by then-Mayor Jan Laverty Jones. For several years before Jerbic assumed his post, city attorneys were appointed by the city manager. Before that, they were elected.

Jerbic faces annual reviews by the council, whose members decide the size of his pay raises.

The fact that the council decides his pay and can fire Jerbic at any time makes him — or anyone in that job — inherently more susceptible to political pressure than if he were elected, some say.

“I would have to agree with that proposition,” said Gardner, chuckling.

Others are more blunt.

“It makes all the difference in the world,” said Kermitt Waters, a prominent eminent domain attorney who has gone against the city in several cases. “You’re just not going to disagree with your bosses too often for fear of getting fired.”

Jerbic disagreed, noting that elections present their own problems. Conflicts of interest occur when, for example, judges are elected and contributors to their campaigns appear before them, he said.

The same thing could happen with an elected city attorney.

The current system, he said “is a good compromise.”

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