You know. Like all good investigations: Get out all the facts but the ones you don’t want out.
While there has been reason so far to be skeptical of the city’s probe into Straub’s firing, there has not been as clear a picture of exactly what is happening – and not happening – as the proposal Councilman Breean Beggs made this week to work around the administration’s resistance to turning over 7,000 emails.
The city’s legal counsel in the matter, former Mayor Dennis Hession, has expressed concerns about how and whether to release the emails, and whether attorney-client privilege would be breached by such a release. Some people with knowledge of the case say this has essentially stalemated the process and denied the investigator crucial information; a city spokesman says the discussions about how to work through this issue are ongoing.
“The mayor is reviewing” Beggs’ proposal, spokesman Brian Coddington said. “Any decision he makes will be based on the expected outcomes of what’s in the best interest of the citizens.”
The reluctance to breach attorney-client privilege is partly a normal, appropriate concern for protecting an important legal principle. Some of it also arises from the competing responsibilities the mayor and administration have in juggling Straub’s lawsuit against the city, the investigation into his firing and a separate ethics complaint – a truly complex set of competing interests and imperatives.
But some of it is also intended to prevent the release of information that might help Straub in his lawsuit.
As Beggs wrote in his May 9 briefing to the council, “Although I have not been advised of any specific record or witness testimony that would be damaging to the City, some people are opposed on principle to such a waiver and others 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.”
There’s the rub. It is impossible to see how information that might be damaging in the lawsuit against the city – and Mayor David Condon, City Administrator Theresa Sanders and City Attorney Nancy Isserlis – would not be germane to the investigation. It’s also impossible to see how hiding such information behind a cloak of privilege would not be disastrous for the investigation’s credibility.
Under Beggs’ proposal, a new attorney would be hired with the specified purpose of creating a new zone of attorney-client privilege by which potentially damaging documents could be kept secret. The new attorney would hire the investigator, who would then be allowed to review documents, and who would presumably produce a report that the council or mayor would have to decide to release.
Crazy as it might sound, this scenario would at least make sure the investigator was able to review the records. As it stands now, this is far from certain.
Beggs’ memo to the council included three options: Hire the new attorney as outlined above; stick with the current plan, and allow the investigator to be restricted by the city’s assertions of privilege; or have the mayor or council waive attorney-client privilege and allow everything to be a part of the investigation.
The final option is the only one that would put the truth – and the public’s right to it – above other considerations.
With a wave of the hand, Condon could make it happen.
“The mayor could solve this tomorrow,” said Council President Ben Stuckart. “He could waive privilege. He could use Garrity” to compel city employees to testify.
Under the so-called Garrity rule, public employees can be compelled to testify while being given protection from legal consequences. The police department uses Garrity all the time in doing internal investigations.
Coddington said such a waiver is unlikely. “That’s probably not one of the options on the table at this point,” he said.
He pointed out that the current situation is particularly complicated. There is the investigation, the lawsuit and an ethics complaint, and the privilege question in one matter might affect another. It’s natural, he said, for attorneys to want to protect information that might affect their client’s case, and it’s not always clear with attorneys representing governments exactly who the client is.
He said there has been an unfair presumption that the administration is hiding damning information or refusing to turn over the documents.
“The ongoing discussion has been how to turn them over … how to protect that privilege and allow (the investigator) to view them,” he said.
Clearly, though, the delay is testing people’s patience. Stuckart, who has raised the possibility of City Council subpoenas as a way of trying to pry out information, said Beggs’ proposal is a way to try to move things forward.
He understands that the city faces liability questions in the Straub suit, but he said that is secondary to the need for a public accounting.
“We have to get all this information out there,” he said.
Shawn Vestal can be reached at (509) 459-5431 or firstname.lastname@example.org. Follow him on Twitter at @vestal13.