City attorneys warn council members against sharing details of meeting about Straub
Tue., Feb. 9, 2016
The city of Spokane’s legal department has warned City Council President Ben Stuckart and others that they could face criminal charges if they disclose information from a private meeting among council members and other city leaders held the day before police Chief Frank Straub was fired. The cautionary email could prevent them from providing testimony to city committees charged with investigating potential mismanagement in Mayor David Condon’s administration.
Stuckart says if the committee created jointly by the council and mayor is unable to learn the details from the meeting, it threatens the integrity of the investigation. The city’s Ethics Commission also is examining issues surrounding Straub’s firing.
In December, Stuckart requested that the meeting’s confidentiality be waived so council members could speak with an investigator looking into the recent turmoil in the police department and City Hall. The council agreed to “waive privilege” by a 4-2 vote.
Though no one has publicly revealed what was discussed at the meeting, it’s clear Straub’s ouster was at issue.
When public records were released in November showing that Condon, City Administrator Theresa Sanders and City Attorney Nancy Isserlis knew of accusations of sexual harassment against Straub months before he was forced out, Stuckart said he had been “lied to” by Sanders and Condon.
With the legal department’s threat, Stuckart said he worries the city is “acting in the mayor’s interest” to prevent information from getting out of City Hall.
“Can city legal fairly represent me?” Stuckart said. “That’s my worry. It muzzles us from talking to the investigator. It muzzles us from talking to the Ethics Commission. I didn’t waive privilege so we can run to the press. I waived it so we can talk to the investigator.”
Stuckart added that recent discussions among members of a joint committee that helped set the parameters of the investigation have turned ugly. According to Stuckart, Laura McAloon, who was appointed to the committee by Condon, asked the committee’s other members if the investigation should move forward because it likely would uncover actions by city officials that would lead to lawsuits.
“I was told we don’t want to open that can of worms because we’d face more lawsuits,” Stuckart said. “Council is very committed to getting to the bottom of everything and making it as transparent as we can make it. Truth is the most important thing at this time. If some attorney can use something we’ve uncovered, oh well.”
McAloon, an attorney, said she is on the committee “as a citizen” and as “part of my civic duty.” She said she was not providing legal advice to the city and would not speak about what was discussed by the joint committee.
“We’re also not supposed to be talking about this. Nobody is supposed to be talking about this citywide,” McAloon said. “When I was asked to be part of this committee, I was told that everybody was going to stop commenting and stirring the pot, frankly.”
In an email sent to Stuckart and others on Monday, Assistant City Attorney Pat Dalton wrote that “information obtained from an executive session of the City Council or City Park Board may not lawfully be disclosed by a participant in the executive session.”
The email was also sent to Chris Wright, president of the park board; Andy Dunau, member of the park board; Rick Eichstaedt, executive director of the Center for Justice; Assistant City Attorney Mike Piccolo; and Isserlis.
In the email, Dalton also wrote that “no provision” in state law allows the council or park board “to vote to override the state statutory prohibition” on releasing information obtained during a closed executive session. Dalton warned those who were considering releasing confidential information to “consult with his or her personal attorney, at least as to the potential violations of state law.”
Council members Candace Mumm and Karen Stratton voted against the waiver, which essentially released the City Council from having to remain silent on what was discussed at the meeting. Councilman Mike Allen was absent for the vote. Stratton is married to Wright.
Stuckart has been in trouble for violating the city’s ethics code before. In 2014, he was fined $250 for improperly sharing a confidential email dealing with a lawsuit.
At the time, Isserlis argued that Stuckart could not share confidential material without a vote from the council.
“Where confidential written advice or information is provided to an official department or body, for example the Spokane City Council, only the body – not individual members – can agree to waive the attorney-client privilege,” Isserlis wrote in her complaint against Stuckart.
Calls to Isserlis were not returned. Her assistant said Isserlis was out of town.
Dalton’s email was in response to questions Eichstaedt, of the Center for Justice, posed about asking city staff to testify before the Ethics Commission in relation to an ethics complaint against Condon. That complaint was filed by the Center for Justice on behalf of the National Organization for Women, Eichstaedt said.
In a document titled, “What Can Be Done if an Elected Official Divulges Information from an Executive Session?” the Municipal Research and Services Center, a Washington state-based nonprofit that looks into local government issues, says there are “good reasons for a local elected governing body … to discuss some matters in a confidential, private setting.”
The group acknowledges there is no definition of “confidential information” in state law, but says issues of litigation and real estate are common topics for confidentiality.
MRSC, however, points to a rule adopted in Renton that allows for disclosure, but only by authorization by “a majority of the City Council.”
Spokane’s municipal code defines “confidential information” as “specific information, rather than generalized knowledge, that is not available to the general public on request.” However, the code says that “confidential information does not include information authorized by the mayor or a majority vote of the council to be disclosed.”
Stuckart said the city legal department’s threats have put him “in a bind” because it contradicts advice he received from Brian McClatchey, the council’s policy adviser, who acts as the council’s attorney.
“We can waive privilege,” Stuckart said. “We can’t individually ever break (the municipal) code. But if council votes in an open public meeting to waive privilege, we can.”
Stuckart said questions of transparency and truth at City Hall and in the police department remind him how the city dealt with the death of Otto Zehm.He died in 2006 at the age of 36 after he was mistakenly accused of theft and beaten, hog-tied and shocked by police in a convenience store in north Spokane. For years, the city denied any wrongdoing in the matter.
“Why were we never being honest about Otto Zehm?” Stuckart said. “I’m tired of hearing that if we tell the truth we open ourselves up to lawsuits.”
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