LAWYER CALLS COUNTY COUNSEL’S ROLE A CASE OF “BREATHTAKING” CHUTZPAH
In response to a Monterey Bay Partisan editorial, the best-known First Amendment lawyer in California says the Monterey County District Attorney’s investigation into alleged Brown Act violations by the Board of Supervisors amounts to a sham or, in other words, a truth-defying Catch-22.
Terry Francke of Californians Aware said in an email to the Partisan that county officials set the rules for the inquiry and the DA’s Office went along, unfortunately and unnecessarily.
“To me, the most curious aspect of the DA’s ‘investigation’ is the contention that the investigator had no more right than anyone else to obtain access to the minutes or other records documenting or relating to the board’s disputed closed sessions,” Francke offered. “The investigation was undertaken at the invitation of County Counsel, and if that invitation did not waive any privilege of confidentiality, I”m not sure why not. Actually, one might have expected the DA to insist on such a waiver as a precondition to his involvement.”
The District Attorney’s Office announced this week that it had found no evidence to support allegations that the supervisors had violated the state’s open meeting law by holding closed-door policy discussions during repeated personnel review sessions with five top county managers, including County Counsel Charles McKee. Though one press account reported that the DA had “exonerated” county officials, Chief Assistant DA Terry Spitz said his investigation didn’t answer the question of illegality since he was not provided access to information beyond what the supervisors and county officials told him. The investigation began after information leaked from one of dozens of such performance review sessions showed that the supervisors had spent considerable time secretly discussing Salinas River water rights issues during what was purported to be a performance review of county water manager David Chardavoyne.
“One can’t ask for a clean bill of health while declining to disrobe for the doctor.”
Though some of the confidential personnel sessions were attended by county advisory board members, Spitz said Wednesday they weren’t interviewed because it wasn’t felt they could add anything to the supervisors’ denials of wrongdoing.
Francke wrote that without access to documentation regarding the meetings, “an inquiry requested by the county counsel seems more like a professional courtesy rather than an independent exercise of law enforcement. And the chutzpah of the invitation itself, intending to withhold the central evidence, is a bit breathtaking. One can’t ask for a clean bill of health while declining to disrobe for the doctor.”
Francke, who has been involved in countless public records cases, opined that no privilege attached to records of the contested meetings and he challenged the authority of an appellate court ruling to the contrary.
“Courts have repeatedly held that in California, privileges to keep information from being disclosed in an official proceeding are found exclusively in the Evidence Code, as codified by the Legislature, not in some appellate decision purporting to interpret the Brown Act. And the Kleitman case, cited for the existence of such a privilege, is greatly if not entirely undermined by the subsequent passage of Proposition 59 in 2004. That measure among other things made it a constitutional requirement to interpret limitations on access to meetings and information narrowly, and affirmative access rights broadly. Thus the notion in (the) Kleitman (case) that the Brown Act makes direct inquiry into closed session behavior taboo because of privilege, as well as the notion in the other case underpinning the supervisors’ position—that closed sessions for performance evaluation must be broadly interpreted to include not only the quality of the employee’s work but its results and their future direction—stand the constitutional canon of construction on it head.”
Francke noted that the supervisors had selectively wielded privilege, which often can amount to a waiver of any privilege.
“They could have stood their ground, citing Kleitman, and refused to submit to the DA’s interviews. Instead they cooperated in that unsworn process, but then relied on the Kleitman shield from disclosure to withhold the most telling evidence of what they had said and done in the closed sessions: their own contemporaneous records.”
The attorney was so struck by the county’s position that he sent along an excerpt from the book Catch-22.
Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
“‘That’s some catch, that Catch-22,'” he observed.
“‘It’s the best there is,'” Doc Daneeka agreed.
Francke’s official biography:
Since 1980 Terry Francke has been helping journalists, citizens and public officials understand and use their First Amendment, open government and public information rights.
Francke and his daughter, Emily, founded Californians Aware in the spring of 2004. The idea setting this nonprofit, nonpartisan public interest norganization apart is that working with public-spirited citizens, journalists and government officials and employees at the same time can effect a change in the overall landscape, and improve the public trust while also making openness more convenient for those at the gates.
Francke previously served 14 years as executve director and general counsel for the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association.
Over all these periods Francke has fielded tens of thousands of phoned and e-mailed queries on press and citizen rights; written the most widely used guidebooks to the law governing open meetings, open courts and public records in California; served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and Propositioin 59 of 2004, making open government a basic right of citizens under the California Constitution.
Francke is a 1967 graduate of the University of Notre Dame and a 1979 graduate of McGeorge School of Law, University of the Pacific. Prior to his legal career, Francke worked as a weekly newspaper editor and in military and local government public affairs positions.