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RPVCCA_CC_SR_2014_03_18_06_Policies_Confidentiality_CommCITY OF RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: SUBJECT: HONORABLE MAYOR AND CITY COUNCIL MEMBERS CAROL W. LYNCH, CITY ATTORNEY MARCH 18, 2014 POLICIES REGARDING CONFIDENTIALITY OF ATTORNEY- CLIENT PRIVILEGED COMMUNICATIONS REVIEWED: CAROLYNN PETRU, ACTING CITY MANAGE ~ RECOMMENDATION: ADOPT THE ATTACHED POLICIES BACKGROUND Although it is generally understood that confidential attorney-client communications between the City Attorney and the City, whether in writing, orally, or discussed during closed session meetings under the Brown Act, must be kept confidential, the City Council does not currently have a written policy addressing that issue. Additionally, recent requests by a City Council member to obtain a broad range of communications between the City Attorney's office and individual City Council Members and City staff have highlighted a need to address how such requests should be handled by the City . Disclosures of attorney-client privileged communications to unauthorized persons without the permission of the City Council, whether inadvertent or intentional, could have potential adverse consequences to the City. In response to these concerns, the Mayor has requested that the City Attorney develop a policy that defines what information provided by the City Attorney may not be disclosed without approval of the City Council, and what remedies are available in the event of an unauthorized disclosure by a Council Member or a City officer or employee. The City Attorney has drafted a Confidential Information Policy addressing these issues for adoption by the City Council. In addition, a second policy has been prepared that sets forth the procedure that will be followed when a City Council Member wishes to review attorney-client privileged communications . 6-1 Policies Regarding Confidentiality of Attorney-Client Privileged Communications March 18, 2014 Page 2 of 4 DISCUSSION The City Council as a body is the holder of the attorney-client privilege for the City of Rancho Palos Verdes regarding all attorney-client privileged communications, including City Attorney communications exchanged with the City Council, individual Council Members, and even with respect to attorney-client privileged legal opinions or communications that the City Attorney exchanges with the City Manager, other City officers, and City employees. Only the City Council acting as a body may choose to waive the City's privilege with respect to attorney-client privileged communications. Individual members of the City Council and City officers and employees, including the City Manager, may not waive the City's attorney-client privilege. This means that confidential attorney-client privileged communications cannot be disclosed unilaterally by an individual Council Member to any person who does not fall within the City's attorney-client privilege without having approval of the disclosure by a majority of the Members of the City Council. The City Attorney's duty to preserve the attorney-client privilege exists to serve the purpose of encouraging City Council Members, the City Manager, other City officers and employees to seek legal assistance and to communicate fully and frankly with the City Attorney even as to embarrassing or legally damaging subject matter. The City Attorney requires this information to represent the City of Rancho Palos Verdes effectively and, if necessary, to advise the City to avoid or refrain from wrongful conduct. In order to keep the City Council fully informed about pertinent legal issues that may impact the City Council's decision-making, the City Attorney issues confidential legal opinions or conducts closed sessions when authorized to do so by the Ralph M. Brown Act. Unauthorized disclosures of confidential communications exchanged with the City Attorney, including legal opinions, email or other confidential communications that are subject to the attorney-client privilege, or unauthorized disclosures of confidential communications with the City Attorney during closed sessions, harm the City. Harm to the City from such breaches of confidentiality ranges from diminution of City staffs willingness to communicate fully and frankly with the City Attorney to unwarranted litigation exposure and significant damages awards against the City. In addition, unauthorized disclosures of confidential communications could have an adverse effect upon the California Joint Powers Insurance Authority and its evaluation of the City. It also is possible that if a member of the City Council wrongfully discloses confidential information obtained in a closed session, or protected by the attorney-client 6-2 Policies Regarding Confidentiality of Attorney-Client Privileged Communications March 18, 2014 Page 3 of 4 privilege, the CJPIA could take the position that the elected official is not entitled to a defense because the disclosure was not authorized by the City Council and, therefore, was not in the course of employment or duties of the elected official or employee. Accordingly, it is of paramount importance to the City that attorney-client privileged communications be protected from disclosure to unauthorized persons without approval by the City Council. The first policy protects against unauthorized disclosures of attorney-client privileged communications by establishing a clear policy with which Council Members must comply, including signing an acknowledgement that they have received the policy and will abide by its terms. Specifically, the policy provides the following: Prohibitions Against Disclosure 1. Unless authorized by an affirmative vote of a majority of the Members of the City Council, no City Council Member in receipt of any confidential attorney- client privileged communication shall disclose or cause to be disclosed all or part of any privileged confidential communication to any unauthorized person. 2. Any Council Member who discloses or causes to be disclosed any attorney-client privileged confidential communication to any unauthorized person may be subject to public censure by the City Council. Any censure proceeding shall be conducted in public at a duly noticed City Council meeting. No public censure will occur unless the accused Council Member has been provided with notice of the accusation and the facts underlying such accusation and an opportunity to be heard at the censure proceeding. 3. The City Council also may pursue other remedies authorized by California law against the Council Member, including filing a lawsuit to obtain an injunction against the unauthorized disclosures. 4. Further, the City Council may pursue all authorized remedies under state or federal law against the unauthorized person or persons who received unauthorized disclosures of privileged attorney-client confidential communications. The second policy establishes a procedure for review of attorney-client privileged communications at City Hall. Specifically, the second policy provides the following : 1. A Member of the City Council may make a request to the City or to the City Attorney's Office to review documents that are subject to the City's attorney- client privilege, in connection with the performance of his or her duties as a Council Member. 6-3 Policies Regarding Confidentiality of Attorney-Client Privileged Communications March 18, 2014 Page 4 of 4 2. Such request is not a Public Records Act request, and the Council Member shall maintain as confidential the records and the information contained in such records, and not disclose them to unauthorized persons (see related policy number ). 3. In the interest of fiscal responsibility and staff efficiency, a request for a copy of such records shall reasonably describe an identifiable record or records either by topic or timeframe or both. Requests that seek: (1) a voluminous amount of City records, the gathering and review of which may result in significant expenditures of City time and resources, or (2) sensitive legal matters, may be referred by the City Manager or the City Attorney to the City Council for approval prior to disclosure. 4. If a Council Member requests documents that are within the scope of the City's attorney-client privilege, paper documents may be provided in paper form for review by the City Council Member at City Hall. Electronic records shall be provided electronically for review by the Council Member on a City-owned computer at City Hall. No photograph, copy (electronic, paper or otherwise) shall be provided or permitted. 5. By taking these steps, the City's attorney-client privilege will be preserved . For the foregoing reasons, the City Attorney's Office recommends that the City Council adopt the two policies. ALTERNATIVE Discuss the attached policies and provide further direction to the City Attorney . Attachments: Draft Policies 6-4 CITY COUNCIL POLICY (Proposed) NUMBER: DATE ADOPTED/AMENDED: 3/18/2014 SUBJECT: CONFIDENTIALITY COMMUNICATIONS POLICY: OF ATTORNEY-CLIENT PRIVILEGED The purpose of this policy is to protect confidential communications between the City and its attorneys . The determination of whether a communication between the City Attorney and the City is a confidential attorney-client privileged communication requires an interpretation of law as applied to specific facts. For this reason, the City Council should consult with the City Attorney before making any public disclosures of communications that potentially fall within the definition of an attorney-client privileged confidential communication. A. Prohibitions Against Disclosure 1. Unless authorized by an affirmative vote of a majority of the Members of the City Council, no City Council Member in receipt of any confidential attorney-client privileged communication shall disclose or cause to be disclosed all or part of any privileged confidential communication to any unauthorized person. 2. Any Council Member who discloses or causes to be disclosed any attorney-client privileged confidential communication to any unauthorized person may be subject to public censure by the City Council. Any censure proceeding shall be conducted in public at a duly noticed City Council meeting. No public censure will occur unless the accused Council Member has been provided with notice of the accusation and the facts underlying such accusation and an opportunity to be heard at the censure proceeding. 3. The City Council also may pursue other remedies authorized by California law against the Council Member, including filing a lawsuit to obtain an injunction against the unauthorized disclosures. 4. Further, the City Council may pursue all authorized remedies under state or federal law against the unauthorized person or persons who received unauthorized disclosures of privileged attorney-client confidential communications. 6-5 B. Definitions 1. "Agent of the City" means Council Members, City staff, City consultants, or other City representatives or officers, excluding the City Attorney. 2. "Cause to Be Disclosed" or "Unauthorized Disclosure" means the disclosure of a Confidential Communication to an unauthorized person or failure to exercise due care in maintaining the confidentiality of the Confidential Communication. 3. "City Attorney" means the person appointed by the City Council as the City Attorney and other attorneys working within the same law firm as the City Attorney, and special legal counsel retained by the City Attorney or by the City Council. 4. "Confidential Communication" means: a. Any communication or information provided orally or in writing in preparation for or during a duly authorized closed session (See Gov't. Code Sec. 54963); or b . Any oral or written communications by or from the City Attorney, including email, containing the City Attorney's legal opinions, advice, thoughts, mental impressions or conclusions that are given on behalf of the City. c. Any oral or written information transmitted between an Agent of the City and the City Attorney in the course of that attorney-client relationship and in confidence , in accordance with California Evidence Code Section 952. d . Confidential Communication does not include information that is required by law to be reported out of closed session, is authorized by a majority of the City Council to be disclosed, or otherwise is authorized to be disclosed under the law. 5. "Unauthorized person" means: a . With respect to confidential information communicated during a closed session, any person, other than a Council Member (subject to (c) below), not in attendance at the closed session; or b. Any person to whom the oral or written confidential communication is not directed or addressed; or c. Any person who has a disqualifying conflict of interest in the subject matter of the information contained in the confidential communication. d. Unauthorized person does not include the City Manager, the Deputy City Manager, and Department Heads and other City officers or employees or City consultants when such persons have a need to know the information contained in the confidential communication in order to discharge the duties of their positions for the benefit of the City. -2 -6-6 C. Acknowledgement of this Policy Each Member of the City Council shall be provided with a copy of this policy and shall be required to sign a form acknowledging that he or she has received a copy of this policy and will abide by its provisions. BACKGROUND The City Council as a body is the holder of the attorney-client privilege for the City of Rancho Palos Verdes regarding all attorney-client privileged communications, including communications exchanged with the City Council, individual Council Members, and even with respect to attorney-client privileged legal opinions or communications that the City Attorney exchanges with the City Manager, or other City officers and employees. Only the City Council acting as a body may choose to waive the City's privilege with respect to attorney-client privileged communications. Individual members of the City Council and City officers and employees, including the City Manager, may not waive the City's attorney-client privilege. This means that confidential attorney-client privileged communications cannot be disclosed unilaterally by an individual Council Member to any person who does not fall within the City's attorney-client privilege without having prior approval of the disclosure by a majority of the Members of the City Council. The City Attorney's duty to preserve the attorney-client privilege exists to serve the purpose of encouraging City Council Members, the City Manager, other City officers and employees to seek legal assistance and to communicate fully and frankly with the City Attorney even as to embarrassing or legally damaging subject matter. The City Attorney requires this information to represent the City of Rancho Palos Verdes effectively and, if necessary, to advise the City to avoid or refrain from wrongful conduct. In order to keep the City Council fully informed about pertinent legal issues that may impact the City Council's decision-making, the City Attorney issues confidential legal opinions or conducts closed sessions when authorized to do so by the Ralph M. Brown Act. Unauthorized disclosures of confidential information obtained from the City Attorney, including from closed sessions or from legal opinions, email or other confidential communications that are subject to the attorney-client privilege cause harm to the City. Harm to the City from such breaches of confidentiality ranges from diminution of City staff's willingness to communicate fully and frankly with the City Attorney to unwarranted litigation exposure and significant damages awards against the City. -3-6-7 CITY COUNCIL POLICY (Proposed) NUMBER: DATE ADOPTED/AMENDED: 3/18/2014 SUBJECT: CITY COUNCIL MEMBER REQUEST TO REVIEW ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS POLICY: The purpose of this policy is to protect confidential communications between the City and its attorneys, while making such records available for review by a City Council Member in the performance of his or her duties. A. Requests to Review Attorney-Client Privileged Communications 1. A Member of the City Council may make a request to the City or to the City Attorney's Office to review documents that are subject to the City's attorney-client privilege, in connection with the performance of his or her duties as a Council Member. 2 . Such request is not a Public Records Act request, and the Council Member shall maintain as confidential the records and the information contained in such records, and not disclose them to unauthorized persons (see related policy number __ ). 3. In the interest of fiscal responsibility and staff efficiency, a request for a copy of such records shall reasonably describe an identifiable record or records either by topic or timeframe or both. Requests that seek: (1) a voluminous amount of City records, the gathering and review of which may result in significant expenditures of City time and resources, or (2) sensitive legal matters, may be referred by the City Manager or the City Attorney to the City Council for approval prior to disclosure. 4 . If a Council Member requests documents that are within the scope of the City's attorney-client privilege, paper documents may be provided in paper form for review by the City Council Member at City Hall. Electronic records shall be provided electronically for review by the Council Member on a City-owned computer at City Hall. No photograph, copy (electronic, paper or otherwise) shall be provided or permitted. 5. By taking these steps, the City's attorney-client privilege will be preserved. B. Definitions 1. "Agent of the City" means Council Members, City staff, City consultants, or other City representatives or officers, excluding the City Attorney. R6876-000I \l 695709v I .doc 6-8 2 . "City Attorney" means the person appointed by the City Council as the City Attorney and other attorneys working within the same law firm as the City Attorney, and special legal counsel retained by the City Attorney or by the City Council. 3 . For purposes of this policy, "documents that are subject to the City's attorney-client privilege" means any oral or written information transmitted between an Agent of the City and the City Attorney in the course of that attorney-client relationship and in confidence, in accordance with California Evidence Code Section 952. BACKGROUND The City Council as a body is the holder of the attorney-client privilege for the City of Rancho Palos Verdes regarding all attorney-client privileged communications, including communications exchanged with the City Council, individual Council Members, and even with respect to attorney-client privileged legal opinions or communications that the City Attorney exchanges with the City Manager, or other City officers and employees . A City Council Member, in connection with the performance of his or her duties as a Council Member, may need to review the legal advice provided to the City by the City Attorney, including legal advice upon which the City Council was not copied . At the same time, the City Council, mindful of the need to protect from inadvertent disclosure attorney-client privileged communications, has adopted this policy to balance facilitating the duties of Council Members while protecting from inadvertent disclosure privileged communications. With that in mind, this policy limits the distribution of copies of attorney-client privileged communications while providing access to such records at City Hall. -2- R6876-000 l \l 695709v I .doc 6-9