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CC SR 20180403 02 - Campbell PRA City Attorney Expenses RANCHO PALOS VERDES CITY COUNCILMEETING DATE: 04/03/2018 AGENDA REPORTAGENDA HEADING: Regular Business AGENDA DESCRIPTION: Report oflegal fees spent by the City as a result of Public Records Act requests made by former mayor Brian Campbell, or attempting to obtain compliance from Mr. Campbell for Public Records Act requests that sought emails to/from Mr. Campbell on his private email account. COUNCIL ACTION: (1)The Council, on February 6, 2018, received a report from the CityAttorneyon the City Attorney’s efforts to comply with public records requests from Michael Huang and Green Hills and to obtain City-related emails located on Mr. Campbell’s private email accounts. The report included a chronology showing that over a two year period Mr. Campbell had not compliedwith any such public record requests. The Councilrequested a summary of the City’s costs in these efforts. FISCAL IMPACT: N/A Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: David J.Aleshire, City Attorney REVIEWED BY: Gabriella Yap, Deputy City Manager APPROVED BY: Doug Willmore, City Manager ATTACHED SUPPORTING DOCUMENTS: A.Email chronology re Campbell PRAs(page A-1) B.Aleshire & Wynder fees related to Campbell PRAs(page B-1) C.Letter of December 18, 2017 from Aleshire to Campbell requesting compliance(page C-1) D.Recent Email Exchanges(page D-1) I.BACKGROUND Recently it has come to the attention of the City Council that the City has spent a great deal of money in legal fees due to the conduct of the former council member, Brian Campbell, in particular relating to Public Records Act (CPRA) requests. The City Council is committed to transparency in government and wishes to provide the public with an understanding of some unusually high legal fees that it has incurred in the recent months. 01203.0001/460105.1 1 The CPRA request that precipitated the Council’s request for a summary of costs was made by Green Hills Memorial Park on December 4, 2017, arequest originally made in May of 2016. At that time, the City Attorney, Dave Aleshire,assigned then- Assistant City Attorney Christina Burrows to work with Mr. Campbell to review responsiveemails he might have in his private email account. Ms. Burrows made repeated attempts to obtain Mr. Campbell’s cooperation, to no avail. Whenthe request was renewed in Decemberof 2017,the City Attorney’sOffice’sefforts resumedand continued until March 9, 2018.Mr. Campbell was offered assistance by Assistant City Attorney Elena Gerli, and later attorney Juliette Tran. Mr. Campbell never provided documents in response to any of these requests. In fact, the December 4, 2017, Green Hills letter (AttachmentC) recounts that Mr. Campbell improperly conditioned his cooperation. Mr. Aleshire, Ms. Burrows, and Ms. Tran all tried repeatedly to obtain compliance from Mr. Campbell. Ms. Burrows and Ms. Tran made themselves available repeatedly to travel toMr. Campbell to assist him with the review. None of these efforts were successful.Attached is a letter to Mr. Campbell dated December 18, 2017 summarizing efforts to secure Mr. Campbell’s cooperation. (Attachment C) However, there are many otherCPRA requests that Mr. Campbell did not respond to including:a request from Mr. Michael Huang, dated November 10, 2017 (and clarified November 14, 2017),a request from Barry Yudess, dated May 19, 2016, a request from Barry Hildebrand, dated May 20, 2016, and a request from Ed Pilolla, dated May 27, 2016.In fact, Mr. Campbell has not provided any such emails. He has given no explanation for this lack of cooperation to the City, butithas been reported in the press that it was due to technology problems with theCity’semail accounts. No other council member found it necessary to put all their emails onto private accounts and then use that to keep them secret. The City responded to the CPRA requests cited abovewith all the responsive documents to which it had access, which did not include any emails solely in Mr. Campbell’s possession.Due to complaints by Green Hills and Mr. Huang, the Council became aware of Mr. Campbell’s noncompliance and requested two things, (i) a chronology of the public records efforts with Mr. Campbell, and (ii) more effective measures to deal with recalcitrance on the part of public employees or council members in dealing with the CPRA or other laws. On January 16, 2018,the City Attorney presented a new Council Procedures Manual prepared with a Council subcommittee. One of the Council Policies updated was Policy No. 48, which had been previously amended to require Council members to cooperate with the City Attorney in reviewing work related emails on their private servers. However, in2017 the California Supreme Court in the case of City of San Jose v. Superior Courtdecided that City-related emails on public officials’ private email accounts were public records and discoverable. In light of this and the problems with Mr. Campbell’s emails, the newCouncil Procedures included Sections 11 and 12, providing as follows: 01203.0001/460105.1 2 1) Section 11 required compliancewith San Josedecision and provided that all officials must use the City’s public email accounts for City- related business.(11.2) 2)Section 12provided that failure to comply with City rules, including notcomplyingwith the CPRA, was grounds for the City determining not to pay for the defense of the official in the event of litigation. Additionally, on February6, 2018,the City Attorney presented a public report on the status of the Green Hills and Huang public records requests, a chronology of Mr. Campbell’s noncompliance with public records requests over 2 years, and raising the issue that Mr. Campbell was in violation of the new Council policies given that he was still not producing the records.In part this was due to a new issue where Green Hills decided to use litigation to get the materials ithad been requesting. The report contained detailed information on the efforts to obtain Mr. Campbell’s cooperation. Based on the fact that it was not able to obtain responsive emails from Mr. Campbell, Green Hills subpoenaed Mr. Campbellto a deposition (which took place on March 20, 2018) in the case of Sharon Loveys v. City of Rancho Palos Verdes, Case No. BC629637.In the subpoena, Green Hills also made a demand for documents. Mr. Campbell requested that the City provide a defense for him in the deposition, and the City Attorney’s Office had to expend additional resources to provide the Council with a comprehensive analysis. The Council, on February 20, 2018, voted not to provide a defenseunder the new policy. A consent item was added to the March 6, 2018, Council meeting articulating the Council’s decision and the basis thereof.In addition, the City Council requested that the City Attorney’s Office attend the deposition on the City’s behalf to protect the City’s interestsand prevent disclosure of timely confidential material. Additional fees were incurred for legal analysis relating to the possible consequences to the City of Mr. Campbell’s failure to respond to the CPRA requests, and whether and to what extent the City has an affirmative obligation to compel compliance. Finally, legal fees were incurred for the City Attorney’s Office’s review of about 20,000 potentially responsive records in response to a CPRA request made by attorney Jeff Lewis on behalf of unknown clients a short time prior to the November 2017 election, which may have been political in nature. The City Council’s remaining question was the cost of attempting to secure Mr. Campbell’s cooperation over the past two years. The answeris that the City has spent approximately $87,000 in legal fees for all of the above. Attached hereto is a summary of the feeswith almost 400 entries (Attachment B), as well as a time line detailing the City Attorney’s Office’s attempts at obtaining compliance for the requests by Green Hills, Mr. Huang, and others (Attachment A). The costs would certainly have been less if the City Attorney simply made the request of Mr. Campbell and did not follow up, that 01203.0001/460105.1 3 but was not our charge.Also, at various times Mr. Campbell would agree to meet or provide records.The fact is, however, he has never provided a single such email from his private accounts.There has also been the need to research various issues related to the above. Mr. Campbell has tried to suggest that the City Attorney’s office has itself not been responsive. As his emailexchanges since leaving the Council are not privileged, we are providing the recent specific emails enumerating the efforts to work with him to get the emails. The patterns here are repeated many times over the last 2 years, in fact, $87,000 worth. We have recentlyadvisedthe City Council that the only alternative left at the time would be to sue Mr. Campbell, but all the remediesunder the CPRA are geared to help a citizen get public recordsfrom a recalcitrant public agency,ratherthan forcing a public official to cooperatethrough his agency. Such litigation would obviouslyincrease legal costs further. 01203.0001/460105.1 4 EXHIBITA A-1 A-2 A-3 A-4 A-5 A-6 A-7 A-8 B B-1 B-2 B-3 B-4 B-5 B-6 B-7 B-8 EXHIBITC C-1 C-2 C-3 C-4 C-5 C-6 C-7 C-8 C-9 C-10 C-11 C-12 C-13 C-14 EXHIBITD D-1 D-2 D-3 D-4 D-5