Controlling information, secrecy and censorship is a tool long used by authoritarian governments to keep the people both in line and ignorant of what their government is actually doing, and this is the direction the RPA-controlled Richmond City Council is increasingly taking to conceal their perverted agenda.

While simultaneously plotting to orchestrate the city manager’s resignation, the RPA-controlled City Council hypocritically voted at the November 9, 2021, City Council meeting, to adopt a resolution, “ that the City Council of the City of Richmond renounces and condemns the statements made in the [TOM BUTT E-FORUM] postings about Laura Snideman’s job performance.”

During closed session at the same City Council meeting, the RPA-controlled City Council directed the city attorney to ask the district attorney and grand jury to investigate alleged disclosure by me of information obtained in closed session.

On the Agenda for the upcoming November 23, 2021, City Council meeting is another resolution of the City Council that, “censures Mayor Tom Butt for breaching his duty as mayor not to publically (sic) release confidential attorney-client privileged information,” and directing the City Attorney to, “report the actions of Mayor Tom Butt described in this resolution to the Contra Costa Grand Jury and the Contra Costa District Attorney.’

What is this all about? First of all, the RPA City Council members are obsessed with secrecy. They don’t want the public to know how they are manipulating City of Richmond government to serve their own ideological purposes and put the City of Richmond at grave risk, and they want to totally control the messaging, one of the hallmarks of an authoritarian society. Second, we have a lame duck city attorney who, in my opinion, is both unethical and incompetent and also continually subverts the Brown Act to keep important city business secret. Thank goodness she will soon be gone. I hope she can take her sidekick Heather McLaughlin along with her, but that is probably too much to ask.

At the heart of these actions is corruption by the city attorney of the Brown Act, a piece of landmark California legislation intended to inform the people, not conceal information from them. The Ralph M. Brown Act is California's “sunshine” law for local government. It is found in the California Government Code beginning at Section 54950. In a nutshell, it requires local government business to be conducted at open and public meetings, except in certain limited situations. The Brown Act is based upon state policy that the people must be informed so they can keep control over their government. Its purpose is described in the Act:

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” Gov’t Code § 54950.

The central provision of the Brown Act requires that all “meetings” of a legislative body be open and public. At its core, the Brown Act is intended to insure government transparency, but city managers, city council members and particularly city attorneys have routinely perverted it into exactly the opposite, an excuse to conceal from the general public some of the most consequential and controversial acts of government, and this is what is happening in Richmond.

While most of the Brown Act provisions deal with transparency, the Brown Act also includes necessary but very narrow exceptions for certain business that can be discussed in closed session, including some aspects of labor negotiations, real estate negotiations, personnel actions and litigation. Generally, actions taken following discussion of these items must be reported publicly in an open session.

In the interest of protecting the integrity of confidential information discussed during closed session, the Legislature enacted Government Code section 54963 as part of the Brown Act. This section prohibits city council members from disclosing confidential information that has been acquired by being present in closed session to a person not entitled to receive it, unless the city council authorizes disclosure.

The Richmond city attorney corrupts the Brown Act routinely in several ways:

• Allowing or even encouraging discussion in closed session of subjects not allowed to be discussed in closed session.
• Allowing or even encouraging discussion in closed session of subjects not on the closed session agenda.
• Not reporting out in open session actions taken in closed session

In recent closed session meetings, the City Council has directed the city attorney to take specific actions with respect to litigation involving Campus Bay and Point Molate, actions that could have grave impact on the City of Richmond and its fiscal future. The details and content of such discussions are deemed confidential under the Brown Act, but not the actions ultimately taken. The city attorney, to her credit, reported out one such action in a closed session of October 19, 2021, direction from the City Council to prepare a brief in the Point Molate Brown Action litigation appeal that actually supports the arguments of the appellants -- after the City argued its case and totally prevailed in the trial court. However, the city attorney, inexplicably failed to report out other directions and actions that were potentially just as damaging to the City.

After reporting out what the City Council had directed her to do regarding the defense appellant brief, the city attorney wrote an email to City Council members the next day under the heading “Confidential Communication” explaining why she was not going to do it. See “The Rest of the Story”, November 5, 2021. The city attorney’s November 20 email was not a closed session discussion and was not subject to the Brown Act closed session confidentiality provisions. The city attorney erroneously believes that anything she communicates to City Council members can be made secret just by writing “confidential” on the email. City attorney communications can arguably be made “privileged,” which means they cannot be discovered or used as evidence in litigation, but it doesn’t mean that they can also remain confidential.

Although the city attorney is educated and licensed as an attorney, she either doesn’t know or chooses to obfuscate the difference between confidentiality and privilege.

The Law Dictionarynotes:

…attorney-client privilege and attorney-client confidentiality are two-terms that often get confused with one another–even, sometimes, by attorneys themselves!

The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle … [attorney client privilege] refers only to communication between an attorney and his or her client. In many cases, attorney-client privilege only protects such communication if that communication pertains to the litigation at hand and it also does not protect communication that is available from a third-party source.

In common language, attorney client privilege protects communication between an attorney and client from being discovered or used in ligation against the party who is the attorney’s client.

In contrast, attorney-client confidentiality tends to be much broader in scope. Confidentiality requires the attorney to not only not reveal information that has been shared with him or her by the client but also prevents that attorney from using such confidential information in a way that may be disadvantageous to the client. Furthermore, the duty of confidentiality pertains to most information that may be used against the client, whether or not that information was revealed by the client or by a third party. For example, if an attorney receives information from a client’s friend that could harm the client’s case then attorney-client confidentiality would still forbid that attorney from using that information against his or her client. Again some information may be exempt from attorney-client confidentiality protections.

Except for the Brown Act protection of certain appropriate confidential discussion in closed session, confidentiality of communication between a client and an attorney is intended to protect information provided by the client to the attorney, not to provide a city attorney with blanket authority to label every email to city council members or anyone else “confidential” and expect it to remain secret. Even the Brown Act recognizes the limitations of confidentiality by stating in 54956.9, “For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter.”

The potential termination of the city manager has been a topic of discussion in several recent closed session meetings, being noticed on the Agenda as follows:

1. November 2, 2021: PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code Section 54957): Title:  City Manager
2. November 9, 2021: PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code Section 54957): Title:  City Manager
3. November 16, 2021: CONFERENCE WITH LABOR NEGOTIATORS (Government Code Section 54957.6): Unrepresented employee:  Acting and Interim City Manager, Agency Representative:  Acting Deputy City Manager Internal Services

During these closed session meetings, the City Council negotiated a separation agreement with the city manager that provided for severance payments of between $300,000 and $400,000 (the exact amount was undefined), and it was signed by Vice-mayor Demnlus Johnson. I refused to sign it because it is an illegal document. All this was done in secrecy

The Brown Act allows discussion in closed session to consider the “the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee,” but it does not allow discussion about the “allegedly false and disparaging statements posted by Mayor Tom Butt on social media” or the consideration of a resolution, “to publicly renounce and condemn such statements,” especially under the Agenda item, “Public Employee Performance Evaluation.” If it were up to the City Council and city attorney, the separation agreement would have never seen the light of day. The final version was provided to the City Council via an email marked, “Confidential Attorney Client Privilege” on November 16, 2021, and there was no plan to release it publicly, even though the interim assistant city attorney acknowledged that, “technically, the document is a public record.”

To the horror of the city attorney and the RPA-dominated City Council, I released the separation agreement via the TOM BUTT E-FORUM on November 16, 2021, “City Manager Separation Agreement Executed,” November 16, 2021.

Now, the city attorney and City Council are doing everything they can think of to muzzle me and punish me for revealing their secrets. The Brown Act protects this disclose under several provisions, including “Expressing an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action,” and “Disclosing information acquired by being present in a closed session under this chapter that is not confidential information.”

In Laguna Beach, the district attorney recently slapped down a similar attempt by the City Council to muzzle a council member. the Laguna Beach council was discussing a divisive development project in closed session and keeping the discussion from the public, so Weiss , a City Council member, leaked that info to the public, arguing under CA Gov. Code Sec. 54963(e)(2) that it was appropriate to do so. The council then discussed censuring Weiss for doing this in closed session, followed by a 3-2 vote to censure him, exactly what the Richmond City Council is doing. Weiss referred the matter to the DA, who warned the council in a written letter that If future Brown Act violations occur (the lack of transparency, not for revealing “confidential” info)  there may be criminal prosecution. The city manager and attorney disagreed – and the language they use in revealing: the DA talks about the importance of public transparency and notice, while the city manager talks about the importance of keeping confidential “items that are protected by the Brown Act” There seems to be an interesting school of thought among city managers and attorneys that the Brown Act’s limited exception are meant to broadly protect confidentiality as opposed to the very limited and strictly construed exceptions to the Act’s mandate for transparency. The courts, however,  have not embraced the former interpretation.

See “OC District Attorney Says Laguna Beach City Council Violated the Brown Act,” September 28, 2021.

"Part of those actions will be for the council to record their closed session meetings for the next six months and keep them for a year. The district attorney is also calling on the city to ensure that notices for closed session meetings reflect what will actually be discussed. “These measures will promote trust in the legislative process and maintain public confidence in the City Council itself. Should the City Council agree to implement these measures [the district attorney] will not pursue the matter any further,” reads the letter from the district attorney’s office. Dupuis said the city has no problem implementing those safeguards, but wants to meet with the district attorney’s office first. “We have no issues if those safeguards need to be implemented after we meet with the district attorney’s office — we’d be more than happy to implement them,” she said. Dupuis also said the city “extremely values the importance of transparency.” “We just need to make sure that we protect the city when there are matters related to potential litigation that cannot be legally disclosed in a public setting, and those are the items that are protected by the Brown Act,” she said.

For more on the Laguna Beach saga, see:

• https://voiceofoc.org/2021/09/oc-district-attorney-says-laguna-beach-city-council-violated-brown-act/
• https://www.lagunabeachindy.com/closed-session-leaks-violated-brown-act-district-attorney-says/
• https://www.ocregister.com/2021/08/13/laguna-beachs-george-weiss-censured-for-sharing-closed-session-information/
• https://www.lagunabeachindy.com/letter-district-attorney-takes-remedial-action-on-brown-act-violation/

Will the people of Richmond insist that their city attorney and City Council act with transparency when appropriate, or will the City of Richmond continue to spiral downward into a black hole of secrecy where those who dare to shine the light of day on government are condemned, censured and threatened with legal action? It’s up to the people. Elections have consequences.