By Raoul Lowery Contreras
When a client receives legal advice from his or her lawyer, which of the two is bound by “confidentially?” In this case, newly-elected San Diego City Attorney Mara Elliott is the lawyer and Councilman Chris Cate of the 6th District is the client.
She is a Democrat who I expect to run for Mayor in 2020 and he is a Republican.
At issue: a legal memorandum her staff wrote regarding a proposed agreement with private investors trying to develop Mission Valley’s stadium property. The previous tenant — the San Diego Chargers – relocated.
The private SoccerCity group gathered sufficient signatures to mandate the council (a) accept the proposal with details to be negotiated or (b) to place it on a future ballot.
Elliot issued a public analysis weeks ago. The memo at issue was a “secret” memorandum in which Elliot took positions on the agreement itself.
Councilman Cate sent his copy of the memo with Elliot’s views and positions on the proposal to a representative of the soccer group asking for a response to the memo. He wanted to be armed with all the facts and opinions prior to his vote. That “representative” gave the memo to an attorney with the soccer group who referenced it in a public response.
Elliot blew up. Her secret “policy” positions were exposed, and the City Attorney is not elected to set council or city policy.
Elliot hid behind attorney-client privilege to avoid criticism of her views. She stifled the free speech rights of council members; she did not want public debate of her policy views. By marking the memo “confidential,” Elliot gave the council majority — Democrats like her — reason to set the public vote for November 2018 instead of a special election in 2017. The soccer group and minority council members wanted an earlier vote, but more Democrats vote in general elections.
In my 50-plus years of working with, dealing with and for several years having my business regulated by the City Council, I’ve never seen a City Attorney act like this I’ve known city attorneys Alan Firestone, John Witt, Casey Gwinn, Mike Aguirre and Jan Goldsmith. If any of them, particularly, Mike Aguirre had orchestrated this scenario, he would have been run out of office.
In my regulated days I fought bureaucrats and some City Council people tooth and nail. City Attorney John Witt never took sides in my fights with bureaucrats or council members.
He made observations about whether I was within the laws under which I was licensed and regulated. He never issued a secret memo on my issues. At individual meetings with council members, they told me what the city attorney told them. Were those “leaks” or simply a council member doing their job? They wanted to know my side, so they could look at the entire issue from all sides to make intelligent decisions.
It is a council member’s duty to examine all sides of an issue before they vote on it. They can’t even vote on an issue if they aren’t totally familiar with it.
After the soccer attorney released the memo to the public, Elliot claimed what Cate did was “illegal.” The next day she told KPBS that “when we determined that there had been a leak, nobody came forward to explain to us why the leak had occurred.”
A leak? A council member is prohibited from speaking about council discussions behind closed doors, say with labor unions during contract negotiations or when negotiating property purchases or sales, lawsuits or personnel matters.
But a council member is not prohibited from asking about issues from the people involved regardless of what the City Attorney says. It is one’s duty to educate himself on all sides of the issue.
In the KPBS interview, Elliot acted as if she was running against Cate. Note: he is an elected representative of the city, her client. She suggested he should resign, and she talked about a confidential conversation she had with the councilman. She said on-air that she “didn’t trust him any longer.”
She says she referred the issue to the District Attorney for possible prosecution. The District Attorney has refused to pursue the “leak” and referred the “matter” to the state Attorney General.
There are three reasons for the District Attorney to punt the issue to the state Attorney General’s office:
- She isn’t running for Mayor like Elliot. She is running for District Attorney.
- There is no case. The municipal code is clear: elected officials absolutely have the right to seek information they feel they need to make informed decisions.
- Elliott would be obligated to defend the soccer proposition and agreement if it passes in the forthcoming election despite her obvious opposition to it. Conflict of interest?
I don’t say this lightly: City Attorney Mara Elliott should be investigated by the state bar for revealing private conversations with her client, Councilman Chris Cate. He did nothing wrong. He was doing his job. He voted for a public vote.
Can a client break lawyer-client privilege? I can tell you this: a lawyer can’t.
Raoul Lowery Contreras is a political consultant and the author of “The Armenian Lobby & American Foreign Policy” and “The Mexican Border: Immigration, War and a Trillion Dollars in Trade.” His work has appeared in the New American News Service of the New York Times Syndicate.
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