CA Appellate Court Protects EC Legal Advice on the Basis of Privilege

Anonymous

Thu, 07/31/2014 - 03:17

City Related

The logic of a California appellate decision on Monday, in the case of St. Croix v. Superior Court (A140308, July
28, 2014) (attached; see below), doesn't seem right to me. It skips steps. St. Croix is
the executive director of the San Francisco Ethics Commission, and
this matter involves a public records request for documents relating
to the commission’s regulations governing ethics complaints. Here's
how the court's logic goes:

1. State Evidence Code section 954, confers an attorney-client
privilege on the client "to refuse to disclose, and to prevent
another from disclosing, a confidential communication between client
and lawyer . . . ." 
 
2. The state Public Records Act (CPRA) provides an exception to
public records requirements for documents that fall within the
attorney-client privilege. 
 
3. The court in <a href="http://scocal.stanford.edu/opinion/roberts-v-city-palmdale-31514" target="”_blank”">Roberts
v. City of Palmdale</a>, 5 Cal.4th 363, 370 (1993)
said, “By its reference to the privileges contained in the Evidence
Code, . . . the [CPRA] has made the attorney-client privilege
applicable to public records.” 
 
4. Because the San Francisco charter designates that the city
attorney “[u]pon request, provide advice or written opinion to any
officer, department head or board, commission or other unit of
government of” the city, an attorney-client relationship is created
with any agency that seeks such advice, and this relationship
"incorporates" the attorney-client privilege. 
 
5. Because the charter creates this relationship and incorporates
this privilege, no city ordinance can remove this privilege. 
 
6. This is true even though the CPRA §6253(e) permits localities to
provide greater access to records than the CPRA itself requires:
“Except as otherwise prohibited by law, a ... local agency may adopt
requirements for itself that allow for ... greater access to records
than prescribed by the minimum standards set forth in [the CPRA].”
The court's argument is that this provision "does not purport to
authorize a locality to enact an ordinance about records access that
conflicts with the locality’s governing city charter. To change
local law in this circumstance, a charter amendment is necessary." 
 
The court's logic is problematic in three ways. First, the court's
logical progression begins with the state evidence code, which has
nothing to do with the matter under consideration by the court.
Evidence involves litigation. No one is questioning whether the
attorney-client privilege applies in matters involving litigation.
An EC's consideration of regulations is as far from litigation as
one can get. It involves policies and procedures, which are not
exceptions to public records acts. 
 
In any event, the Evidence Code provision itself only provides a privilege for "confidential communication." However, SF law states that an agency's communications with its attorney, at least where another exception is not met (such as relation to litigation), are not confidential, and the charter says nothing to override this lack of confidentiality. Therefore, the Evidence Code, even if it applied to the situation, would not apply in SF, where such communications are not considered confidential. The court in this case did not speak to this. It skipped it altogether. 
 
It is true that <a href="http://scocal.stanford.edu/opinion/roberts-v-city-palmdale-31514" target="”_blank”">the
Roberts decision</a> did apply the Evidence Code's
attorney-client privilege provision to a public records situation.
But that case involved the appeal of a city planning commission's
approval of a parcel map application to a city council, and the city
attorney's legal opinion letter about the validity of the appeal and
how the council should deal with it. In other words, the council was
acting in a quasi-judicial role in a litigation matter. 
 
The state Evidence Code was relevant to the Roberts situation and,
therefore, its attorney-client privilege provision could be applied
to that public records request. But this does not make the Evidence
Code relevant to the situation before the court. The court did
nothing to explain this logical step. Therefore, this step is
questionable. 
 
Second, everything else rests on the charter's "incorporation" of
the attorney-client privilege. This "incorporation" derives solely
from the fact that the charter says that one of the city attorney's
roles is to provide advice to city agencies. The court took a long
step between the city attorney's role (which is the same in every
city in the United States and included in just about every charter,
and not something special to the San Francisco charter) and the
attorney-client privilege. 
 
What is it about designating a city
attorney's role that so clearly provides a privilege that cannot be
changed by ordinance? If a charter said such a privilege existed, I
would agree. But San Francisco's does not say this. Therefore, its
non-statement of this does not take precedence over an
ordinance. 
 
Also, the court's logic ignores the important question, Does a
public agency have an attorney-client privilege when both the agency
and the city attorney represent the very same client, the public.
Public records rules are there to protect and enhance the access
to information of their client. Even if there were such a privilege,
who would be able to decide whether to waive it or not? And wouldn't
any such decision be based on the city and state's public records
laws, which have, effectively, already made the decision for them? 
 
The court should have gone through this logical progression. But it
did not. It did not consider who the client is that holds the
attorney-client privilege in San Francisco. It simply assumed that
the EC held this privilege. It did not consider whether the client should be guided by an ordinance that speaks directly to the issue at hand: whether the privilege applies to public records requests. These failures place the decision in question. 
 
Third, the court does not consider the fact that the state
legislature, when it allowed local governments to provide greater
access to public records than the CPRA allows, recognized that this
referred to the exceptions (where else would greater access come
from but dropping exceptions?). It could have excepted the
attorney-client privilege from the greater access provision in
recognition of the fact (as the court presents it) that defining a
city attorney's role in a charter prevents this exception from being
dropped. But since every city in the state most likely gives its
city attorney this role, the legislature either recognized this role
definition was irrelevant to the attorney-client privilege exception
or did not feel that it gave rise to a privilege that would prevent
cities from passing laws that provide access to communications
between its city attorney and its agencies. The court should have at
least considered these possibilities. Instead, it skipped a logical
step and made another assumption. 
 
Additionally, since transparency is central to government ethics, outside
a situation where making records public could jeopardize an ongoing
proceeding or make personal information public, an EC should not
withhold records. When I administered the New Haven Democracy Fund,
which ran the city's public campaign financing program, I was the
one who provided advice on legal matters, and I handed out my memos
to the press at meetings of the fund's board. The board's members unanimously wanted this transparency,
because they recognized how important it was to be transparent as
possible when you are handing out public funds to candidates. 
 
Even if the court's logic were solid, I still don't think
the EC should have withheld legal advice relating to the
promulgation of regulations just because it came from the city
attorney (the implication is that if it had come from the executive
director or an outside attorney, the advice would have been public, even if exactly the same, which makes no sense from a public policy point of view).
And I don't think the city council should have let the EC do this or
allowed this litigation — and certainly not this appeal — to have
proceeded. 
 
Finally, the city attorney has too great a role in the city's transparency program. He oversees the program as "supervisor of records," while at the same time creating numerous documents and being required to advocate for those who do not want to make records public, even for the reason that a document was drafted by the city attorney. Wearing all these hats does not belong anywhere in government, especially in a government ethics program. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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CA Appellate Court Protects EC Legal Advice on the Basis of Privilege

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