City Council mulls waiver, release of counsel’s legal view on Elizabeth Patterson and Valero Crude-by-Rail Project

Benicia City Council will decide Tuesday whether the public should see a legal opinion on whether Mayor Elizabeth Patterson has expressed impermissible bias about Valero Benicia Refinery’s request to extend rails onto its property so crude oil can be brought in by train.

In an Oct. 22 report, City Attorney Heather McLaughlin wrote that outside counsel Mike Jenkins has offered his opinion on the matter at the request of the Council.

The crux of Jenkins’s opinion — that Patterson has, in fact, shown bias against the Valero proposal and should recuse herself from votes on the matter — is already known, since the mayor released a rebuttal by her own attorney, Diane Fishburn, last month.

The city is Jenkins’s client, McLaughlin wrote, and the relationship between Benicia and Jenkins is governed by California Business and Professional Code, under which the two have attorney-client privilege.

Under State Bar rules, McLaughlin is prevented from advising individual Council members, and must counsel the entire panel or as directed by the Council.

She wrote, “Removing the attorney-client privilege will make this document public and available to anyone. Because of the disclosure of the crux of the opinion to the public already, I do not believe the memo contains any information that would give away a legal strategy or put the city in a worse legal position.”

However, she added, “Perhaps by disclosing the opinion, it would be easier for the public to more fully understand the situation.”

She wrote that attorney-client privilege lets a lawyer provide advice, including pointing out weak points as well as strong ones in a client’s case or action plan.

“Providing legal advice in public may not always be the best for a client, since it could indicate the weakness of the client’s position and allow another to take advantage of the client’s weakness,” she wrote.

“I’ve been on the Council most of the years since 2001, and there’s never been anything like this before,” Vice Mayor Tom Campbell said Thursday.

“The crux of the opinion was released when Patterson publicly released her attorney’s rebuttal to Mr. Jenkin’s closed-session analysis of Patterson’s emails.”

As McLaughlin wrote in her report, “The attorney-client privilege requires that the client waive the privilege. The State Bar rules provide that the client is the organization acting through its highest authorized representative. Thus, in this particular case, the client is the city acting through the City Council.”

Attorney-client privilege means conversations and written communication are confidential between the two, a concept McLaughlin explained has been recognized by the United States Supreme Court as one of the oldest of privileged, confidential communications. She wrote that the Council can’t take action to waive the privilege until a majority on the panel agrees, explaining, “an individual Council member cannot validly waive the privilege.”

“I have no recollection of similar requests,” said Councilmember Christina Strawbridge said of Tuesday’s agenda item. “I think we are in uncharted territory.”

Strawbridge is in her first term on the panel, but has been active in city government through membership and leadership positions on the Economic Development Board and her participation in developing the city’s tourism program, as well as in other community organizations.

All members of the Council as well as McLaughlin were asked to comment on the agenda item. Others didn’t respond by press time.

The topic has been a matter of discussion between Patterson and McLaughlin since last year, when the attorney raised concerns about Patterson’s “e-alert” emails.

During those conversations in person and by email, McLaughlin asked Patterson to recuse herself and not participate in the city’s decision about the Valero proposal. Last month, Patterson said, “Free speech is the bedrock of open government. To inform the public about issues of vital concern or issues that should be of vital concern is what I promised.”

She said she would continue to do so, explaining that the sharing of information shouldn’t be constrained and that other Council members can’t force her or other members not to vote.

“To act according to their city’s best interest is what I intend to do to the best of my ability. Interference with this duty and purpose is unacceptable,” she said.

Patterson attorney Fishburn, retained last year, has said a 1975 California Supreme Court decision supports the mayor’s contention.

In that case, two Fairfield City Council members were allowed to participate in voting on a shopping center even though they had said publicly they didn’t support the project.

In a letter sent June 26 to McLaughlin, Fishburn recognized that McLaughlin not only had asked Patterson to refrain from participating in the decision on the Valero project but also from sending her “e-alert” mailings.

Since Patterson has no financial interest in the project, Fishburn said, it appeared McLaughlin’s advice was based on “the common law conflict of interest doctrine.”

She denied her client had that conflict, and wrote that Patterson “not only has the First Amendment rights as a citizen and public official, but she also has the right and duty as an elected official to participate in the public and city discussions regarding this important matter.

“Equally important, she has First Amendment rights to communicate freely with her constituents and the public in general on any and all issues of public policy and concern, and any attempt by the city or city officials to curb those rights would be an unlawful restraint of her speech under the U.S. and state Constitution.”

Fishburn went on, “The law fully supports the mayor’s complete participation in both the public community discussions and her activities in her role as mayor as well as in any decisions which may come before the Council on the project.”

In addition to the Fairfield case, Fishburn also quoted Wollen v. Fort Lee, a 1958 New Jersey Supreme Court decision that said it would be contrary to a free society’s principles to disqualify from services in popular assembly those who made pre-election commitments of policy on issues involved in the performance of their sworn duties.

Fishburn asked McLaughlin to retract her advice to Patterson that she had a potential conflict of interest.

“As you know, our client has taken a prudent approach and has not made public statements or indicated a specific position on the pending permit,” Fishburn wrote.

Saying the mayor’s mass emails cover a range of topics, Fishburn wrote, “Accordingly, her actions have been consistent with her role as mayor and leader in the community and her desire to see that the public is provided with complete information and encouraged to be part of the review process as well as with her official role in the pending city decisions.”

Even if Patterson had expressed views on the Valero project permit, she wrote, it still wouldn’t disqualify the mayor from participation in the ongoing proceedings.

McLaughlin said Oct. 16 that the Council hadn’t decided whether to release Jenkins’s opinion about whether Patterson should recuse herself from addressing or voting on the crude-by-rail project.

She declined to comment on what Jenkins said, but cited sections of the Benicia Municipal Code requiring that public officials and employees be independent, impartial and responsible to the people, uphold laws from local to federal levels, and fulfill the public trust by their conduct, which should be above reproach.

She also mentioned the city’s Code of Conduct that also could be pertinent to the matter.

In her report to the Council, McLaughlin attached a League of California Cities article titled “When an Elected Official Feels Passionately About An Issue: Fair Process Requirements in Adjudicative Decision-Making,” printed in 2006.

The article ascribes a question to a public official who had successfully run on a campaign promise to shut down adult entertainment establishments in the area and had been an outspoken critic of the businesses.

After the official’s election, an applicant submitted a request to open a new adult entertainment business. The official said to a reporter, “I would never vote to issue the permit.” The government agency’s attorney advised the official against voting on the matter and to stop providing information about the issue.

The article writer’s response was that the agency attorney was worried that the official’s participation in the decision-making process could open the agency to a legal challenge, because of a perception the person wouldn’t be a fair decision-maker, and that by circulating informational materials about the matter — particularly outside of meetings — the person may have been trying to develop “a collective concurrence on the adult entertainment issue outside an open and publicized meeting.”

The article said this is particularly significant in adjudicative decisions, such as on permits.

“Fairness requires that the hearing occur before a reasonably impartial, noninvolved decision-maker,” the article said. “What this means is that decision-makers cannot be biased and the courts will examine the agency’s procedures to ensure that the process has been fundamentally fair.”

The Institute for Local Governments has published “An Ounce of Prevention: Best Practices for Making Informed Land Use Decisions” that can guide local governments about making decisions in ways that promote public trust and minimize the likelihood of getting sued, the League article said.

The Council will meet at 6 p.m. Tuesday in a closed session evaluation of McLaughlin’s performance, and will meet in open session at 7 p.m. Tuesday in the Council Chamber of City Hall, 250 East L St.