Key documents are being kept out of reach of the investigator looking into the circumstances surrounding the firing of police Chief Frank Straub, and another lawyer may be hired by the city to get those documents into her hands.
In a briefing paper delivered to Spokane City Council members Monday, Councilman Breean Beggs recommended hiring Mike Harrington, a Seattle-based labor and employment lawyer who earned multiple degrees at Gonzaga University, to oversee the investigation and advise city officials on how to release the final investigative report.
Harrington’s hiring would provide the records needed to complete the investigation being done by Kris Cappel, a principal with the Seabold Group. At issue are 7,000 emails that are going through an expedited redaction process conducted by former Mayor Dennis Hession, who was hired by the city to work on the matter.
In the paper, Beggs urged council members to pass a resolution authorizing and encouraging Mayor David Condon to hire Harrington to be in charge of the investigation. Harrington could then retain Cappel to continue the investigation. Under Beggs’ plan, Harrington would be hired as an attorney so any documents he or Cappel view would be shielded from public release through attorney-client privilege.
The release of such records has been complicated by the lawsuit brought by Straub against the city, Condon, City Administrator Theresa Sanders and City Attorney Nancy Isserlis, as Beggs noted.
Straub, who filed a $4 million claim with the city before suing, was pushed out of City Hall by Condon last September following accusations of inappropriate behavior from his top police brass and sexual harassment from his former spokeswoman, Monique Cotton. Straub has denied such allegations, but his ouster and the mayor’s role in the forced resignation have been under scrutiny ever since.
Condon and the City Council agreed to Cappel’s investigation late last year, but it has been stalled by key city staff refusing to cooperate, notably from the police department and city attorney’s office, and an unwillingness by the city’s legal team to release certain documents because they are “fearful that the chance that there could be damaging material that would otherwise be beyond the reach of Frank Straub’s attorney is too big a risk to take,” Beggs wrote.
If sensitive documents are released by waiving attorney-client privilege, “the waiver might be used by attorneys suing the City to strengthen their cases by obtaining documents and testimony that they might otherwise not be entitled,” Beggs wrote. “If there are damaging documents that could otherwise have been shielded, this could cost the City more in the long term.”
Beggs, who was appointed to the council in February and was quickly put on the joint committee overseeing the investigation, said hiring Harrington was one of three options available to the council regarding the documents and investigation.
The first option, Beggs wrote, is to keep “key documents” from Cappel and therefore from Mary Schultz, Straub’s attorney. Beggs also said this option would “restrict (Cappel’s) interviews of in-house attorneys.”
“Unfortunately, this option would seriously undercut the perceived value of the report and substantially increase the cost by using other attorneys to review and withhold documents before Kris Cappel sees them,” Beggs wrote. “It will also increase Kris Cappel’s time and travel billed to the investigation and will further delay a final report.”
The second option Beggs describes has Condon or the City Council waiving privilege and releasing the documents to Cappel and the public.
“This is the least expensive option in the short term because it removes the need for outside review by special counsel,” Beggs wrote. “It also could speed up the Seabold investigation since they would have immediate access to documents and witnesses who have previously refused to testify on the basis of protecting the City’s privilege.”
Beggs notes the “downside” of this option is that it would give the documents to Schultz and potentially “strengthen” Straub’s case.
Beggs also notes that “one or more officials” might not honor the waiver, leading the City Council to “exercise its power under the City Charter to subpoena documents and testimony.” Subpoenaing would add cost and time to the investigation, Beggs wrote, delaying “the investigation by over a year at a substantial cost in attorney fees.”
Beggs’ third option deals with Harrington, who charges $300 per hour and has already agreed to work with the city. Since he would act as a protective umbrella over Cappel’s investigation, documents and testimony would be shielded by Harrington from public view and Straub’s lawyer.
The protection of confidentiality could spur more participation in Cappel’s investigation, notably from city attorneys such as Erin Jacobsen, who recently left city employment but noted in her April resignation letter that she is willing to be interviewed by Cappel for any future litigation, as long as city officials “modify the process to ensure that I would not be violating the attorney-client privilege by doing so.”
Harrington’s confidentiality protection could be complicated when the city releases Cappel’s final report, something City Council members and Condon have assured would happen.
“Those are questions the Mayor and the Council must consider with the assistance of their legal counsel before making the final decision of what to release,” Beggs wrote.
The City Council will consider the options next week.
If Harrington is hired, he will join two other law firms hired by the city to work on the case: Kutak Rock, which employs former Mayor Dennis Hession as the city’s main point of contact for the firm; and Michael McMahon, the city’s primary attorney in the Straub case.
Condon, Sanders and Isserlis have all hired their own attorneys to represent them in Straub’s case, but as Beggs notes, “the City will likely be responsible for paying” the legal fees.
Asked about Beggs’ proposal, Schultz, Straub’s attorney, quoted Sir Walter Scott: “Oh what a tangled web we weave, when first we practice to deceive.”
“I count five defense attorneys already, now going on six, the latter to supervise Cappel, which means seven, then add the city’s in-house counsel. I’m running out of fingers,” Schultz said. “Looks like they have every reason to be just that worried.”
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