Call it the fable of the client who wouldn’t abide sound counsel. Just about every lawyer can tell some version of it: The client comes in asking for advice but really only wants permission, a shortcut around the rules, a loophole to make the unlawful lawful. The lawyer’s admonitions are seen as obstructionist legalese. Eventually, the client finds what looks like a loophole and crawls through it — only to find it is actually a snare, with a slipknot even the best lawyer can’t untangle. As in any fable worth its salt, the client comes to no good end.
It’s not a pretty story, but it’s one the Baltimore City Council would do well to read and heed before taking a final vote on its local hiring preference ordinance next month. Under the version that got preliminary approval this week, anyone who has a city contract for more than $300,000 or who “will benefit from more than $5 million in assistance for a city subsidized project,” would have to ensure that at least 51 percent of the jobs be filled by city residents.
Now, reducing unemployment is a worthy goal. The problem is not with the City Council’s motives but with its methods, which are unconstitutional.
As City Solicitor George A. Nilson has repeatedly warned the council, the ordinance draws a line that the Privileges and Immunities Clause was written specifically to erase. Court after court after court has struck down local hiring preferences based on the Privileges and Immunities Clause, the city solicitor warned the council. No such challenge has ever failed, he said.
And with good reason: For the bill to survive a challenge, the city would need statistical proof that unemployment in Baltimore is caused solely by the employment of nonresidents. Nilson suggested several alternatives that would target more likely causes, such as deficiencies in education, experience or training in marketable skills.
The council’s response? “Don’t tell me we can’t do it,” Council President Bernard C. “Jack” Young said.
Other council members blamed Nilson for being unhelpful. Still others spoke of passing the ordinance now and “tweaking” it later if it is challenged or struck down. (We wonder who would pay for the city’s lawyer in such a case, as Nilson certainly could not defend the law).
The council pins much of its certitude on the fact that some places, like San Francisco and Boston, do have local hiring laws. But those laws have not survived constitutional challenge; rather, for a variety of reasons, including recent enactment and lax enforcement, the challenge hasn’t yet come.
Yet, as the council notes, they are indeed law. Which begs the question: Could the city solicitor be wrong?
It’s possible, to be sure. While all the cases so far have been on his side, he is not a pope, endowed with infallibility; he is not the Supreme Court, whose words are automatically the law of the land. On the other hand, he is a pretty fair lawyer and, more to the point, he is the city’s lawyer. There is no evident reason for him to oppose the hiring preference law, other than to save the council from hobbling itself in a costly snare of its own making.
The City Council — and, failing the council, the mayor — would do well to heed his counsel, focus on the root causes of unemployment and abandon this unenforceable litigation magnet.