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Gag Me 

Opinion: The idea that an employment contract for the highest-ranking city official can be shielded from taxpayers because it is a “personnel matter” is ethically offensive.

BY CAROL A.O. WOLF

Mayor Dwight C. Jones and the city's recently departed chief administrative officer, Byron C. Marshall, must think the people of Richmond are a bunch of fools. Why else would they attempt to hide from us the details concerning Marshall's sudden departure from City Hall?

Their latest gambit was to ask City Council members to sign confidentiality agreements in order to find out why Marshall is no longer in City Hall.

It's only the most recent example of Richmond's near-pathological addiction to secrecy, an addiction that's as corrosive to regional efforts at working together for the greater good as it is to building trust in our elected officials. They should know better.

Clearly, preacher Jones needs to spend more time reading his Bible, especially Luke 12:12 (King James Version): "For there is nothing covered, that shall not be revealed; neither hid, that shall not be known."

And Marshall, who has a bachelor's degree in history, must need a refresher lesson on how things turned out when former President Richard M. Nixon attempted to gag the media from reporting on the Pentagon Papers and to keep from turning over those White House tapes, to those "nattering nabobs of negativism," as former Vice President Spiro Agnew described reporters just before he left office in disgrace.

More's the pity for our city then that only four of nine City Council members — Jon Baliles of the 1st District, Chris Hilbert of the 3rd, Parker Agelasto of the 5th and Reva Trammell of the 8th — had the good sense to refuse to sign away their constituents' right to know what the real deal is concerning Marshall's sudden departure from City Hall.

What in the world makes them think they can require elected officials to sign a confidentiality agreement in order for them to do their fiduciary duty? And what's next? A loyalty oath?

Besides, does the mayor really think this foolish piece of paper somehow is enforceable? If a council member signs and then talks, an injunction to not talk won't accomplish anything. So would the mayor sue for damages? It's difficult to believe his tattered administration or reputation is worth much at this stage.

When this news was first reported Sept. 15, I filed a Freedom of Information Act request. Two days later, the mayor's press secretary, Tammy Hawley, and City Attorney Allen Jackson informed me that the documents I requested were either "attorney-client privileged or personnel records" and therefore "shielded" from FOI law.

Both notions are even sillier than the mayor's so-called confidentiality agreement, which essentially is a gag order.

Hoping to persuade them to reconsider their refusal to release the information, I sent a follow-up email. It said, in part:

"It is absurd to say that an agreement is an attorney-client privileged communication because it was prepared by a lawyer. If that were all it took to preclude disclosure of the document, then most contracts wouldn't be discoverable because almost all of them are prepared by lawyers and then communicated to their clients.

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 City Hall and the terms of his buyout package.

Consequently, this document and the information contained therein have 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 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's happening to public money.

Recall the case of what happened in Bell, Calif. The Los Angeles Times won a Pulitzer Prize for its investigations into what was dubbed "Corruption on Steroids," a scandal about a small city "whose leaders paid themselves outsized salaries."

I hope you know that I have no personal issue with either of you. I know you are simply trying to do your jobs. Having served as an elected official and as a journalist, I know there are dedicated individuals in government who are truly public servants doing their utmost to safeguard the public's money and trust. I hope that you will reconsider your decision.

And Mr. Jackson, I ask that you recognize that the public offices — and not the people who occupy them — as well as the residents of Richmond are your real clients."

As Claire Guthrie Gastañaga, a former deputy attorney general and current executive director of the American Civil Liberties Union of Virginia astutely put it: "In a democracy people should know more about the government than the government knows about us."

How did they reply? I'm still waiting. And despite numerous efforts to reach him, Charles Samuels — 2nd District City Council member, City Council president, a lawyer and one of the members who signed the confidentiality agreement — didn't respond by deadline.

Make no mistake. In this case, our rights to know what our government is doing — in our names and with our tax dollars — will prevail. S

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Carol A.O. Wolf is a former newspaper reporter who served on the Richmond School Board from 2002-2008.