RPVCCA_CC_SR_2014_04_01_04_Policies_Re_Attorney_Client_Privileged_CommunicationsCITY OF RANCHO PALOS VERD ES
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
REVIEWED:
HONORABLE MAYOR AND CITY COUNCIL MEMBERS
CAROL W. LYNCH, CITY ATTORNEY
APRIL 1, 2014
POLICIES REGARDING CONFIDENTIALITY OF ATTORNEY-
CLIENT PRIVILEGED COMMUNICATIONS
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 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
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followed when a City Council Member wishes to review attorney-client privileged
communications.
Due to the lateness of the hour, the City Council did not discuss either policy at the last
City Council meeting . Both policies have been revised since that meeting. In the first
policy, the definition of "confidential communication " that is set forth in California
Evidence Code Section 952 has been incorporated into the policy . In addition, the
policy has been clarified so that City Management Staff will be required to acknowledge
receipt of the policy in addition to City Council Members. In the second policy, a
reference to Evidence Code Section 952 has been added to paragraph B 3. In
addition, language has been added to the end of paragraph 4 to clarify that a Council
Member may request Council authorization to deviate from the provisions of that
paragraph regarding how attorney client privileged communications can be reviewed.
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.
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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 staff's
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
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.
These policies are intended to preserve the ability of the City Attorney to provide advice
to the City on legal matters where other provisions of federal or state law limit access of
information or documents to specified City officials or employees . As examples , state
or federal law may limit dissemination of information and documents in order to comply
with the requirements of the federal Family and Medical Leave Act, the California
Family Rights Act, the Penal Code, and/or the right of privacy guaranteed under
California Constitution, Article I, Section 1; to preserve the due process rights of City
employees on disciplinary matters and third parties on adjudicatory matters that will
come before the City Council; and to protect discovery of the mental processes of
individual Council members in evaluating legislative proposals that will be presented for
action to 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.
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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.
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
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computer at City Hall. No photograph, copy (electronic, paper or otherwise) shall
be provided or permitted. If the Council Member asserts that he or she cannot
comply with this Paragraph 4, the Council Member shall request authorization
from the City Council to deviate from the provisions of this Paragraph.
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
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CITY COUNCIL POLICY (Proposed /Revised )
NUMBER:
DATE ADOPTED/AMENDED: J/484/1 /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.
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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 confidential 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 . "Confidential communication ." as defined in Section 952 of the
California Evidence Code , means information transmitted ora ll y or in writing (including
by email) between a client and the cl ient's lawyer "in the course of that relationship and
in confidence by a means whic h. so far as t he client is aware . discloses the info rmation
to no third persons other than those who are present to further the interest of the client
in the consultation or those to whom d is closure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the advice g iven by the
lawyer in the course of that relationship."
Aft.y-§onf idential oral or wr itten communieatiens by or from the City Attorney,
including emai l, containing th e City ,t\.ttorney's legal opinions , advice , thoughts , menta l
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 cours e of that attorney client relat ionship and in confidence ,
in accordance with California Evidence Code Section 952.
d.Q . 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. "Person" includes any person , firm , associati on , organization . partnership ,
limited liability company , business trust. com pan y or corporation. and any municipal ,
political or governmental corporation , district. body or agency.
~"Unauthorized person" means :
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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.
C. Acknowledgement of this Policy
Each Member of the City Council and each Member of City Management Staff
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-cl ient 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 and the City
Attorney , 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.
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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.
The C ity 's Attorneys also provide confidential legal advice to the C ity on matters that
may be subject to limitations on dissemination of information under federal or state law
t o on ly specified persons or unde r specified circumstances . As examp les , state or
federal law may limit dissemination of inform ati on and documents in order to com ply
with the requirements of the federal Fa mily and Med ical Leave Act. the Cal ifornia Fa m ily
Rights Act. the Penal Code . and /or the right of privacy g uaranteed under California
Constitution . Article I. Se ction 1: to p reserve t he due process rights of City emp loyees
on disciplinary matters and third parties on adjudicatory matters that will come before
the City Council ; and to protect discovery of the mental processes of individual Council
members in evaluating legislative proposal s that will be presented for action to the City
Council.
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
or to other persons protected by other provisions of federal or state law. 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 .
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CITY COUNCIL POLICY (Proposed /Revised )
NUMBER:
DATE ADOPTED/AMENDED: ~4/1 /2014
SUBJECT: CITY COUNCIL MEMBER REQUESTS 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. lf
the Council Member asserts that he or she cannot comply with this Paragraph 4. the
Council Member shall request authorization from the City Council to deviate from the
provisions of this Paragraph.
5. By taking these steps, the City 's attorney-client privilege will be
preserved.
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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. "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 confidential oral or written information transmitted
between an Agent of the City and the City Attorney in the course of that attorney-client
relationship, as defined in 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.
This policy also preserves the ability of t he City Attorney to provide advice to the City on
lega l matters where other provisions of fede ral or state law limit access of information or
documents to specified City officials or employees . As examples . state or fede ra l law
may limit dissemination of information and documents in order to comply with the
requiremen ts of the federal Fami ly and Medical Leave Act. t he California Family Rights
Act . the Penal Code , and/or the right of privacy guaranteed under California
Constitution , Article I, Section 1; to preserve the due process rights of City employees
on disciplinary matters and third parties on adjudicatory matters that will come before
the City Council ; and to protect discovery of the mental pro cesses of individual Council
members in eva luating legislative prop osals that will be p resented for action to the City
Council.
With these concerns in mind, this policy requires prior review of document requests by
the City Attorney and limits the distribution of copies of attorney-client privileged
communications while providing access to such records at City Hall.
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