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Santa Rosa council waives privilege on Andy Lopez emails

By KEVIN McCALLUM
THE PRESS DEMOCRAT

A Santa Rosa City Council meeting that was supposed to provide clarity regarding advice given to council members about what they could say about the Andy Lopez shooting only made things murkier Tuesday after it was disclosed that an outside law firm is conducting some type of probe into the issue.

The council unanimously agreed to waive the attorney-client privilege protecting emails between City Attorney Caroline Fowler and council members, though they put off a discussion about what those emails contained.

Santa Rosa Council Chambers at City Hall

Santa Rosa Council Chambers at City Hall

The discussion of that advice, which Councilwoman Julie Combs has characterized as a “gag order” placed on the council, was scheduled for a future meeting to make sure the public is properly notified of it, Mayor Scott Bartley said.

But when Councilman Gary Wysocky asked for an email exchange that he had with Fowler over the shooting to be included in the emails that would be released, Fowler said the council could not do so because a private attorney hired to represent the city told her she could not.

Who this other attorney was, why they were hired, and what he or she is investigating were all shrouded in secrecy Tuesday, with Fowler and City Manager Kathy Millison both saying they could say could say nothing more about it.

“The city is represented by outside counsel in another matter to which these communications relate and I’ve been instructed by that attorney that they are subject to the attorney-client communication,” Fowler said.

Asked by Wysocky who retained the attorney, Millison answered:

“The City Attorney’s Office is working with me and authorized the securing of the outside legal counsel based on request,” she said.

Asked who made the request, Millison said she could not say.

“I can’t discuss any of the information related to that particular work that is being undertaken,” Millison said.

Lopez, 13, was shot and killed just outside city limits Oct. 22 by a sheriff’s deputy who mistook his plastic BB gun for an AK-47 assault rifle, which is was designed to closely resemble.

The debate over how the City Council reacted after the Lopez shooting has been politically charged, with Combs saying she felt “muzzled” by directives from the Fowler and Millison that council members say nothing about it. Others, such as Bartley, have said they understood the advice to be merely that they could not discuss the ongoing investigation by the Santa Rosa Police Department, and that there was very little he could say about the shooting in the early days except that it was a tragedy.

At their first City Council meeting after the shooting, Combs pressed for a review of the advice they were given.

At that time, Fowler said she would be “happy” if the council waived the attorney-client privilege related to the advice, saying that there had been a “lot of misinformation about it and a lot of false accusations.”

On Tuesday, Wysocky said he felt the email exchange he had with Fowler was relevant and provided “valuable context” for the council’s future discussion.

“I’m looking at one of the emails right now and it specifically talks about it. To me this is a selective transparency,” he said.

An email Fowler wrote to the council notifying them of the cancellation the Oct. 29 meeting was also discussed. After confirming that it was a public document, Wysocky read the first line of the email, which begins “In light of reports and the irresponsible actions of certain persons who have now endangered our city employees…” the City Council meeting was cancelled.

Fowler declined to discuss that email either, calling is outside the scope of the council’s request to discuss only her legal advice about what they could say or not.

Council members were clearly frustrated that the meeting that was supposed to demonstrate their commitment to transparency was being stifled with another layer of secrecy, the very narrative they are trying to change.

“We’re in a little bit of a quandary here,” Vice Mayor Robin Swinth said.

It was unclear whether the council had the authority to waive the attorney-client privilege, which they as a council hold, or whether because of the outside advice, Fowler would be unable or unwilling to to release the emails.

“It sounds like we have a motion and a second, but we don’t have the authority to vote on this,” Bartley said.

Ultimately, on a 4-3 vote, the council agreed not to make the email exchange with Wysocky public. Bartley, Swinth, Jake Ours and Ernesto Olivares voted against lifting the privilege, while Wysocky, Combs and Erin Carlstrom voted in favor.

The council also agreed to have a study session in January about the way it handles communication in? a tragedy. It also directed staff to return with an update on progress that has been made in Sonoma County since a 2000 report by the California Advisory Committee to the U.S. Civil Rights Commission after a spate of officer-involved shootings.

You can reach Staff Writer Kevin McCallum at 521-5207 or kevin.mccallum@pressdemocrat.com. On Twitter @citybeater.





4 Responses to “Santa Rosa council waives privilege on Andy Lopez emails”

  1. James Bennett says:

    Yeah, wouldn’t ‘wanna be anything but fully transparent.

    Do everything by the book.

    Just, doin’ it outa the wrong book.

    Thumb up 13 Thumb down 4

  2. brown act jack says:

    Under rule 3-600 of the Rules of Professional Conduct, an
    individual council member or other city official (such as the
    city manager) is not the client. There is no attorney-client
    confidentiality in these communications. Advice may only
    be given to an individual in his or her capacity as an
    officer of the city. Such advice is subject to disclosure to
    the city council. For example, if a city council member has
    a conflict of interest that could result in the invalidation
    of the council’s decision under state conflict of interest
    laws, the city attorney must advise the council of the
    consequences of the conflict if the council member fails
    to disclose the conflict and abstain.

    Thumb up 8 Thumb down 2

  3. brown act jack says:

    954. Subject to Section 912 and except as otherwise provided in
    this article, the client, whether or not a party, has a privilege to
    refuse to disclose, and to prevent another from disclosing, a
    confidential communication between client and lawyer if the privilege
    is claimed by:
    (a) The holder of the privilege;
    (b) A person who is authorized to claim the privilege by the
    holder of the privilege; or
    (c) The person who was the lawyer at the time of the confidential
    communication, but such person may not claim the privilege if there
    is no holder of the privilege in existence or if he is otherwise
    instructed by a person authorized to permit disclosure

    the client can disclose whatever they want.

    The attorney must disclose whatever the client wants disclosed.

    The second attorney has the city as his client and not the City Attorney, unless the CA has paid for those services with the CA’s personal funds.

    I wonder, indeed, what is going on.

    Ah, the beauty of closed sessions!

    Thumb up 11 Thumb down 1

  4. Papa ESoCo says:

    What is going on in Santa Rosa? The City Attorney hires an outside attorney without the Council knowing? Did I read that right? A meeting that was supposed to be something about transparency, turns out to be the opposite! Not a word about those emails. Absolutely no idea what is going on; is this the way government is run now? The Council has a much transparency as Beijing.

    Thumb up 12 Thumb down 0

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