I’d like to add my agreement to this morning’s editorial in The State, and elaborate on it:
IT HAS BECOME almost routine that when Columbia city attorney Ken Gaines speaks, the City Council listens — behind closed doors….
With citizens across Columbia following City Council’s deliberations over a possible curfew for teens, Mr. Gaines refused to discuss concerns he had in the open, saying that if he did so, he would violate attorney-client privilege. City officials were concerned about such questions as who would retain custody and whether the city would be liable for the safety of children who were taken into custody for breaking the curfew if their parents refused to pick them up.
Likewise, during a recent work session on a proposed ban on texting while driving, Mr. Gaines said he wanted to meet with City Council members in a closed-door session to discuss “legal issues” about potential problems with the restriction.
Mr. Gaines’ thoughts undoubtedly could affect the council’s actions. It does the public a disservice when policy is being shaped behind closed doors instead of in full public view.
We understand that the council will sometimes go into executive session to receive advice on active lawsuits — or even pending ones. What’s problematic is when closed-door meetings are held to receive information from the city’s lawyer about whether to approve or change a policy or ordinance the public must adhere to….
But we don’t believe for a second that this [the council’s interpretation] is what the Legislature had in mind when it wrote this law. After all, legislators routinely receive legal advice in open meetings about bills they are debating — because they understand that the advice is first and foremost part of the debate, which needs to be public. Apparently local officials need some help understanding this. The Legislature should change the law to make it clear that local bodies can lock out the public to talk to their attorneys only to discuss an actual legal challenge — not one that they or their lawyer imagine might someday be brought if they adopt a certain ordinance.
In the meantime, Columbia City Council and other local governments would do well to remember that while the law allows public bodies to go behind closed doors to discuss legal matters, it doesn’t require them to. City Council members should direct Mr. Gaines to share information affecting public policy in the open.
Amen. Now, here’s a thought I’d like to see further developed…
Who is the city attorney’s client? I would say it is the citizenry. I’m simply basing this assertion on reason and my understanding of representative democracy, not on a technical legal reading. But I’d love to see someone test it in court.
And even if what I’m saying is not the way it is, I’m quite sure that’s the way it should be.
As I see it, council members are the citizens’ agents, and not the principals, in this attorney-client relationship. Under this interpretation, the only way there would be attorney-client privilege allowing for closed doors (under the canons of the profession, not the FOI statute specifically) would be when the attorney is representing council members as individuals, because they have been specifically named in a lawsuit. (And then we could have a separate debate about whether the city attorney should be representing them, as opposed to their engaging private counsel. I’d be inclined to say that we the people should extend them that help when they are sued for actions performed as part of their official duties, but depending on the case, I could see debating the point.)
Bottom line, there is no justification for privilege in these policy discussions (the specific cases cited in the editorial), either under FOI law or the rules of professional responsibility.
Would any lawyers like to jump in on this? Perhaps not, after the scary warnings I heard the other day from Barbara Seymour about the dangers to attorneys’ engaging in social media, but I can always hope…