When investigators or attorneys come calling, asking questions about the city administration’s handling of police Chief Frank Straub’s departure, tell the truth, the whole truth, and the executive-session truth. If you don’t get asked, offer it up. Say what you know, and say what you were told by the city administration in a closed meeting in September the day before Straub was forced out.
If someone at City Hall decides to pursue legal action against you for disclosing information from an executive session, wear that like a badge of honor. Tell everyone. Put it on your campaign fliers. Rent a billboard. Take donations for your legal defense fund, and let the people decide who is serving their interest.
Hint: It won’t be the ones who tried to shut you up.
A city attorney has told City Council and Park Board members that it is “unlawful” for them to disclose what happened at closed-door meetings regarding the ouster of Straub. This is arguable, and reads like a threat. The good news, at this point, is that at least three people who were present at a City Council executive session in September say they intend to tell investigators the truth if asked: Council President Ben Stuckart, Councilwoman Karen Stratton and former Councilman Jon Snyder. Stuckart has hired his own attorney.
Mayor David Condon, in an interview Tuesday, said the legal issues surrounding the executive session are not clear or settled – in terms of case law or his own administration’s ongoing involvement in the investigation, the ethics complaint and pending litigation. He said state law governing confidential information has an important purpose, including protecting the privacy of employees, and deciding to waive executive privilege raises thorny questions, especially for those who might provide information in a session but are not in control of deciding to waive the privilege later.
“It definitely is an ongoing discussion of how we address these issues,” he said, adding, “Who owns the confidentiality? Who gets to (waive) it?”
If there is one thing the city needs, when it comes to the way Condon and his right-hand woman, Theresa Sanders, handled l’affaire Straub, it’s not cheap legal cover. It’s a full accounting. The City Council seemed to recognize this when it voted in December to waive its attorney-client privilege surrounding the executive session it held in September.
There is not a clear, bright legal line here, but there is decent reason to believe the council has the legal authority to do this and every reason in the world to believe it has the moral authority to do so.
Furthermore, there is an increasing sense that the city attorney’s office is conflicted up and down the waterway on the two efforts to probe the Straub matter: the outside investigation into the circumstances, and the ethics complaint filed by the local chapter of the National Organization for Women. The Ethics Commission decided this week to hire an outside attorney instead of using a city attorney because relying upon the office of a mayoral appointee for advice while ruling on an ethics complaint against the mayor is a conflict of interest.
That pushes back the commission’s hearing on the complaint, which was scheduled for Wednesday, until late March.
It’s unclear what effect, if any, this decision will have on the legal advice the city attorney’s office offered, in a roundabout way, to those considering testifying about the contents of that executive session. The matter came up in an exchange between the city attorney’s office and NOW’s attorney, Rick Eichstaedt. Assistant City Attorney Pat Dalton asserted the view that state law prohibits the disclosure of information obtained in an executive session, and suggested that doing so would be a violation of state law. He also copied Stuckart and Park Board members on the message.
The law he cited prohibits the disclosure of “confidential” information by a municipal officer, without mentioning executive sessions. The city ethics code says confidential information “does not include information authorized by the mayor or a majority vote of the council,” even if it originates in an executive session. Dalton did not cite this.
State law leans heavily toward requiring governmental bodies to operate in public ways, and provides a few narrow exceptions when closed-door meetings are allowed, though not required. Nancy Krier, an assistant attorney general, said governing bodies generally have the privilege of deciding when to use, or waive, the privilege of executive sessions, but state law does not specifically address a situation like this one.
An earlier legal opinion from the city attorney’s office says an individual council member cannot waive the privilege, but the majority may. Several other cities in the state explicitly allow it.
Condon said he understands that many in the public have a straightforward desire for answers.
“You don’t know how many people have said, ‘Would you just talk about what you said in that meeting, Mayor?’ ” he said.
Those people are asking a good question.
Shawn Vestal can be reached at (509) 459-5431 or email@example.com. Follow him on Twitter at @vestal13.