On Wednesday [9/17] and again on Thursday [9/18], I pointed out -- in e-mails to Richmond City Press Secretary Tammy Hawley and to City Attorney Allen Jackson, various postings on FaceBook and on this blog -- that Mayor Dwight C. Jones' excuses for not releasing the "confidentiality agreements" he is demanding Richmond City Council members sign in order to be briefed about the CAO's Byron C. Marshall's abrupt departure are bogus:
" ..... It is absurd to say that an agreement is an attorney-client privileged communication because it was prepared by a lawyer. If that is all it takes to preclude disclosure of the document, then no contract would be discoverable because they are almost all prepared by lawyers and then communicated to their client."
- However, your stated rationale for refusing to provide even an unsigned copy of the so-called Confidentiality Agreement and a list of the City Council members who signed it (or did not sign it), raises the question of just who is the client in this matter.
- Clearly, the client is NOT City Council members individually nor collectively since they did not ask counsel to prepare such a document prior to learning (or not learning) the details of Mr. Marshall's departure from Richmond City Hall and the terms of his buyout package.
- "Consequently, this document and the information contained therein has already been disclosed to "non-clients." As I am sure you are aware, Mr. Jackson, disclosure to a third party constitutes a waiver of attorney-client privilege.
- "The idea that the terms of an executive's employment contract -- in fact, the highest ranking official in Richmond City government -- can be shielded from the public and taxpayers because it is a "personnel matter" is ethically offensive. This logic might work in private business, but it has no place in public policy.
- "If the details of employment and the details of the departure from public employment can be shielded, the city could enter into outrageous contracts and never need to reveal what is happening to public money.
Today [9/19] the Richmond Times-Dispatch editorial page published this brilliant editorial (excerpted here):
" ..... That rumble you hear is the thousands of lawyers across the state laughing their guts out. Attorney-client privilege does not mean any document drawn up by a lawyer can remain hidden from public view. It covers only a very narrow category of information: information provided (a) by a client (b) to a lawyer (c) for the purposes of obtaining legal advise and counsel. The purpose of privilege is to ensure that, for instance, a defendant in a murder case can tell his lawyer exactly what happened on that fateful night, without having to worry that what he says in confidence will be used against him in court.
What’s more, attorney-client privilege ceases to cover information that is shared with a third party. Since the members of the City Council are not the clients of the lawyer who drew up the confidentiality agreement, they qualify as third parties. So even if the confidentiality agreement had been a privileged communication, it ceased to be the moment it was presented to council members.
The claim that the agreement is a personnel record is equally ludicrous. A confidentiality agreement not to disclose a discussion about an employee is not, itself, a record regarding that employee’s performance — any more than a medical nondisclosure form contains the contents of a blood test. Indeed, it would defeat the entire purpose of a nondisclosure agreement if the agreement contained within it the information that was supposed to be kept secret.
The mayor’s insistence on concealing not only the reasons for Marshall’s departure, but also even the confidentiality agreement he asked members of the City Council to sign, does nothing but fuel suspicion. And the nonsensical reasons he has offered for the secrecy reek of desperation.
In short, this all looks very bad. It’s time for the administration to drop the nonsense and come clean."
Very bad, indeed.
Very bad, indeed.