The Weak Legal Case for Anaheim’s Item 10

Vern will be giving you the news about Item 10 on Anaheim’s agenda today. I’m offering some legal analysis — as well as some suggestions about what the city, and local activist non-profits, should do if this hot mess passes.

[AUTHOR’S NOTE, 5/2: I erroneously believed that the investigators for the JL Group were not attorneys. According the Judge Smith at the meeting, they are. That would seem to give more credence to the assertion by Ms. Pelletier that the City had an attorney-client relationship with JL Group, to give them information that was required to do what was to be an internal investigation only. In that case, Judge Smith’s quote in the graphic (that’s his image behind it the fading-in or -out text) could be construed to mean “result” in the narrowest way possible: “no problems were found” or “we have informed the city that some problems were found” — not particularly useful, unless it leads to criminal charges (or, with luck, a state or federal prosecutor investigation.) Pelletier’s argument that last year’s Council had no legal guidance about making the report public seems preposterous (and gratuitously insulting to her boss) — the Council clearly knew what it was doing, and if confidential information was thus put at danger, Pelletier herself was the one who should have raised it back when it was agendized — but it has a far worse possible implication: if any of JL Group’s subsequent work was INFORMED by any of that confidential information, then under a supposed “attorney-client relationship” THAT INFORMATION TOO could be rendered confidential. (Figuring out what the exact scope of the A-CR supposedly was is another issue.) So: if we don’t get some awfully clear info about the Angels deal in particular, that would be why — we know that there’s something pretty sensitive in there based on Pelletier’s running around (on her own initiative or as a result of pressure or influence from some other person(s) or entity/ies with her hair on fire over it) — and that should be A CLEAR SIGN to those in Sacramento, the Central District of California, and/or the U.S. Attorney General’s office that there’s smoke here and someone outside of Orange County ought to be looking for the fire and its causes. THIS is what makes the actions of critics here a success, even if their efforts are stymied: this is not the end of the road, and anything even resembling like a coverup will generate even more interest in places that the city (or even OCDA, if he’s so disposed) cannot control. Meanwhile, I still want to know who came up with the legal citations used in the staff report, whether Ms. Pelletier stands by them, and how she rebuts my criticisms of them below. Let’s ask her as often as need be, shall we?]

While Vern terms Item 10 as a “cover-up” of the JL Group report due on June 1, and I agree that that was the likely intent, I’m not even sure if it will satisfy even that dismal-to-despicable goal. It ain’t going to work, no matter what the City Council does today or at its next meeting. It’s just going to whet people’s appetites for the information.

What I’m here to talk about is Anaheim’s (or “Anaheim’s) legal argument. It’s really poorly thought out, and supported by stunningly shoddy legal support. It’s true that the city does identify some minor and tenuous interests in some sort of privacy — such as not releasing information from employees’ personnel files, which I’m confident was never going to happen anyway — but the broader argument the city makes for its right to curtail the report is one based on the concept of “waiver.” The stated legal justification for this argument is so laughable that I don’t know why anyone other than deeply conflicted Councilwoman Natalie Meeks — a seeming agent of former Mayor Curt Pringle who worked as the city’s Public Works Director for a time — would risk supporting it. (As Vern noted before it happened, Pringle seems to have shunted District 6 Councilmember and Acting Mayor Trevor O’Neil from that District’s race into his doomed Mayoral race against Ashleigh Aitken, likely because he wanted Meeks on the Council.)

But let’s not jump all the way to tonight’s vote yet. Let’s start closer to the beginning.

1. What’s This All About, Anyway?

A lot of bad things have happened in Anaheim since Pringle replaced Tom Daly as Mayor at the end of 2002. (The blissful exception was that portion of Tom Tait’s tenure as Mayor when he actually had a working majority on the City Council – 2017-18.) Public money spurted out of the budget during these years like arterial blood, laundered through groups including the Anaheim Chamber of Commerce, Save/Support Our Anaheim Resort, and Anaheim First. That money went to the benefit of Disneyland, the California Anaheim Los Angeles Angels and the special purpose entities created to enrich its owner Arte Moreno, hotel interests (supported by spurious “expert” reports), with Pringle regularly popping up as a likely middleman and fixer — if not more. Smaller venous trickles, largely generous siting decisions (largely influenced by Meeks), gave boons to the likes of the Anaheim Ducks, a car dealership, and a gas station and car wash developer. (The money spent in court settlements is another story, one with some overlap.) The massive bond, never approved by voters, to support Convention Center Expansion mostly belongs on Disney’s tab. And dark warnings of municipal bankruptcy — which could end up costing the city it’s celebrated and admired municipal public utilities, snapped up by some of the very vampire squids who sucked up so much city revenue — no longer get airily dismissed. (One source has told me that Anaheim was losing out on recruiting public employees to cities like my small hometown of Brea, because Brea was a better bet to actually pay off its employee pensions.)

The most absurd (though not largest!) attempt to just chuck money at the city’s big interests was back as the start of quarantine, when the City took its Covid money and gave it to one of the above agencies to encourage tourism in Anaheim — at a time when people did not want to travel and Disney didn’t even seem to want that appropriation. But pleasing the master before it beckoned was the best sort of show of fealty. Making this happen required a compliant Council, whose campaigns were largely funded with Disney money, a significant portion of which was reportedly channeled through the Orange County Business Council, which Councilwoman Natalie Rubalcava used to oversee. (As will become clear, it’s not that likely that anything Rubalcava did in that capacity would come up in this report, making the prospect of her deciding to risk public shame by joining Meeks in an attempted cover-up perplexing.) I should note that, given lax campaign finance laws, it’s not all that likely that those campaign contributions were illegal — except for Harry Sidhu’s attempted Disneyland shakedown — so much as pernicious and (if and when word got out) potentially embarrassing.

The FBI came in and nailed Sidhu, and Todd Ament, and turned Jordan Brandman’s chief sponsor and promoter Melahat Rafiei into a canary of questionable reliability, though I think that Pringle protege Jeff Flint got away with solely financial damage. (See this Ryan Cantor piece for a nice short summary, which notes that the worst thing that an Anaheim staffer could do in the eyes of Anaheim’s leadership was to be competent, honest, and outspoken, like Cristina Talley and Chris Zapata. As a result, the city felt the need to either “make a go” or “make a show” of its contrition and its interest in identifying and rooting out its corruption. (Pervious term Councilmembers Dr. Jose Moreno and Denise Barnes were on the “make a go!” side, as was now-Assemblymember Avelino Valencia. Steve Faessel seemed to be on the fence — and he is still somehow teetering atop it. (That perch may be ending; being the deciding vote against releasing the report, even by abstaining, would not seem to serve Faessel’s person interests. Vern and I are, after a fashion, praying for his wisdom and, if not that, his soul.)

The investigation is being run by two former police investigators in the JL Group; it is being supervised by retired Judge Clay Smith. They were low bidders and, some believe, the Council or staff might have that that they would be less aggressive and competent than the alternative of a high-powered law firm. If so: well, they seem to be doing pretty well, and the Council agreed to extend their budget earlier this year as things got deeper than expected.

So that’s how the investigation got started. Now let’s look at how it may have stopped.

2. The Meeks-Pringle Problem

The problem with this motion, especially coming from Councilwoman Meeks, is that her own actions are potentially a critical part of this inquiry, based on her allegedly close professional relationship with Curt Pringle and her role as Public Works Director. This comes up in at least three areas:

(1) ARTIC

(2) The Stadium Deal

(3) The Streetcar and Bridge Over Harbor

An investigation of ARTIC alone would be critical. The promises made to induce spending on it never materialized — and not simply due to Covid. Even now, post-Covid, the one restaurant on the ground floor (that was supposed to generate a profit stream) is long dead and empty; the only food one can get within it is a snack bar and a Pinkberry on the ground floor. Plans for amenities on the top (third) floor never materialized beyond chairs, bathrooms, and some signs with ads. The paltry amenities for travelers make the far more modest Fullerton Station look like the Grand Hotel by contrast. So HOW DID THIS HAPPEN?

Some may not remember it now, but Anaheim had a perfectional functional train station within the Anaheim Stadium parking lot. It was apparently removed because it created more space for development of the Stadium Grounds, which have twice now been slated to go to Arte Moreno for a relative song. But if that train station were to go, there had to be another train station close by (in part for Angels fans) — and that created the need for the expensive brightly decorated empty armadillo egg that is ARTIC. Despite some appalling engineering flaws, Meeks herself? won a design award for the structure. But there was no real reason to build it at all, other than to further empty the stadium grounds so that Moreno could make more money off of them and pay for his maintenance obligations that he was neglecting under his lease. Why was that such a priority? The most obvious reason, which I’ve heard from various sources, is that Pringle was making money off arranging the deal. If so, than Meeks would have been using her position primary as a means of enriching Pringle — and we’d need to know more about their relationship to know whether she was just doing this for fun, or for more.

Moving to Disney, the Mouse wanted the City to build a streetcar on Harbor that would, in effect, be for its primary use without giving Disney the liability for any accidents or incidents involving the streetcar. This was tied to a bridge built over Harbor that would allow the Mouse to bring in people from the East. What role did Pringle have in brokering this expensive use of public funds for Disney’s behalf? What role did Meeks play?

Beyond that: what is Meeks afraid of? She seems very concerned about limiting the scope of the investigation to where it would not reach her own actions as Director of Public Works. In an open meeting, she sought guidance about the applicable statute of limitations for any crimes. (And she refuses to recuse herself from these votes to a degree that might make even Clarence Thomas blush!) The problem this creates is that it gives the appearance that she is trying to protect herself, and to the extent that she does have any concerns about criminal behavior (as the statute of limitations questions suggest), it puts other Council members in danger of helping her cover up her previous actions. (This, again, is why I don’t understand why Rubalcava would vote for her. It is pretty much the only way that she could get into trouble — unless Disney is pressuring her to do it, in which event everyone else should treat this vote as radioactive.

3. What the Staff Report Says

Let’s get this down, and we’ll return here to pick it apart later.

DISCUSSION:

1. Introduction

In response to privacy and other concerns raised by Judge Clay Smith, the neutral retained to assist in the JL Group, LLC investigation, Councilmember Meeks requested that a review of prior Council direction to publicly release the JL report be agendized for Council consideration. The City Attorney’s Office and Human Resources Department have evaluated and concur in Judge Smith’s concerns, and are accordingly recommending that Special Counsel be retained to advise the City and assist in formulating a pathway where a report can be released that gives the public investigative results without violating privacy interests, constitutional rights, or applicable privileges.

2. Background

In August of 2022, in the wake of an FBI affidavit detailing potential criminal conduct on the part of former Anaheim Mayor Harry Sidhu, the City retained JL Group, LLC to conduct an independent investigation. The articulated focus of the investigation was campaign contributions made to Mr. Sidhu and other members of the City Council, whether campaign donors had been awarded City projects or contracts, whether City staff was involved in any potential misconduct related the issues identified in the FBI investigation, and whether any serial communications/meetings in violation of the Brown Act occurred in the context of the facts alleged in the federal investigation. Consistent with other investigations involving City officials/employees, the contract between the City and JL Group provided that JL Group’s work product and report would be confidential in order to protect applicable privileges and the constitutional privacy rights of any affected employees. Specifically, the contract states that “All documents, including drafts, notes, ideas and communications that result from the Services provided under this Agreement are protected by the attorney-client privilege and shall be kept confidential by [JL Group] and only disclosed to ANAHEIM and/or Clay M. Smith, the neutral assigned to the Project, unless otherwise authorized in writing by ANAHEIM.”

Several months later, at the November 15, 2022 City Council meeting, former Council Member Jose Moreno made a motion to publicly release JL Group’s report upon its receipt. Since the City had no knowledge of what JL Group’s investigation was uncovering, the Council had no basis to contemplate or expect that the release could invade the privacy rights of employees who might be the subjects of that report. Nor did the Council expressly consider or waive the attorney-client privilege or other privileges.1 

After JL Group and Judge Smith became aware of the Council’s November 15 action to publicly release the JL report, Judge Smith cautioned the City about the privacy interests that could be implicated by the release and recommended that the City take appropriate remedial action. More specifically, the majority (3 of 5) of the progress reports submitted to the City by Judge Smith (attached) raised concerns about the public release of the report given employee privacy rights and the privileged information to which JL Group had been given access, and suggested that the City consider removing privileged and confidential information from the report before its distribution. 

3. Legal Analysis

 a. Attorney-Client Privilege The City has cooperated with JL Group in its investigation and provided investigators with access to confidential attorney-client and other privileged information concerning, among other things, the Angel Stadium real estate transaction and its aftermath. It was able to provide that access without waiving privilege because JL Group was commissioned to prepare a confidential report protected by the attorney-client privilege. City of Petaluma v. Superior Court (2016) 248 Cal. App. 4th 1023 (investigation conducted by attorney is privileged). The Council’s only waiver of the attorney-client privilege (on February 28, 2023) was very limited: to allow JL Group to share information with the District Attorney’s office related to potential criminal misconduct. 1 Subsequently (at the February 28, 2023 Council meeting), the Council did waive the attorney-client privilege, but only for the limited purpose of allowing JL Group to talk to the District Attorney in relation to any potential criminal conduct it had uncovered.

Waiver is defined as “the intentional relinquishment of a known right after knowledge of the facts.” Roesch v. De Mota (1944) 24 Cal.2d 563, 572. Clear and convincing evidence of a specific intent to waive a privilege is required for an effective waiver; silence/inaction may not be used to impute intent. Id; Craig v. White (1921) 187 Cal. 489, 498 (there can be no waiver where the one against whom waiver is asserted has acted without full knowledge of the facts); City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107-108 (waiver must be proven by clear and convincing evidence). Here, while the prior City Council voted to make the JL Group report public, it did not discuss or consider a waiver of the attorney-client privilege with respect to either the JL Group report (which the contract provides is privileged) or any underlying privileged or confidential information that might be in that report. Nor could the Council know what it was waiving (or even that there might be a waiver) without having some information as to what would be in the JL Group report. Further, given that the Council was unaware of the information gathered by JL Group or what might be part of the final report, it did not discuss or consider any legal consequences of releasing a report that might violate individual privacy rights. 

b. Employee Privacy Rights 

California law affords employees a constitutional right to privacy in their personnel records, and broadly defines a personnel record as any record/document “relating to the employee’s performance or to any grievance concerning the employee.” California Labor Code 1198.5(a). The courts have repeatedly held that investigative reports concerning potential misconduct of employees are personnel records protected by the right to privacy. See e.g., Associated Chino Teachers vs. Chino Valley Unified School Dist., (2018) 30 CalApp5th 530, 539-41 (disposition letters detailing results of investigation into employee misconduct are personnel records protected by right to privacy). It is therefore advisable for the City to find a pathway to provide the public with information concerning the JL Group investigation in a manner that does not violate its employees’ privacy rights or waive privileges the City did not expressly intend to waive.2 
It is accordingly recommended that i) the City Council appoint Scott Tiedemann, Managing Partner of the firm Liebert Cassidy Whitmore, as Special Counsel to advise the City with respect to legal issues surrounding the JL Group investigation and report; ii) JL Group’s report be reviewed by Special Counsel prior to any public release to ensure that the release does not violate privacy rights, run afoul of constitutional protections, or disclose information protected by the attorney-client privilege, and iii) Special Counsel be authorized to work with JL Group/JL Group report to prepare/present a report that can be publicly released without violating rights or privileges. It is anticipated that Special Counsel will consult and share information with the Human Resources Director and the Chief Assistant City Attorney as necessary during this process. However, outside of this group/process, the JL Group report will not be disclosed to the City Council or anyone else at the City until a redacted report is ready for public release. City staff has conferred with JL Group and Judge Smith, who support this approach. 2 As noted previously, for a waiver to be effective, it must be informed and intentional.

It should be noted that if there are misconduct findings against third parties or highranking public officials, that information is unlikely to be protected by the right to privacy and may be subject to immediate public release.3 In addition, in coordination with Special Counsel and the Chief Assistant City Attorney, the City’s Human Resources Director (or other applicable authority should the matter fall outside the Human Resources Director’s authority) will determine if disciplinary action is warranted, and all applicable processes provided by law, including those defined in the City’s Personnel Rules or applicable Memoranda of Understanding will be followed. Furthermore, as detailed above, JL Group has met with and been authorized to release information about potential criminal conduct uncovered in the investigation to the Orange County District Attorney’s Office, so the possibility of criminal proceedings exists as well.

CONCLUSION:

For the reasons set forth above, the City Attorney’s Office and the Human Resources Department are recommending that the Council authorize the following actions: 

1. Modify the decision of the previous City Council to immediately release the JL Group report in the manner set forth herein to be consistent with the terms of the parties’ contract and to minimize the City’s exposure to litigation and chances of violating rights and privileges. 

2. Appoint Scott Tiedemann of the firm of Liebert Cassidy Whitmore as Special Counsel to advise the City concerning JL Group’s investigation and report, and authorize him to work with JL Group/JL Group report to formulate a report that can be publicly released. 

IMPACT ON BUDGET: Approval of this item is not anticipated to have any budgetary impact. However, if the preparation of a redacted report requires JL Group to expend additional time or resources, a modest amendment in the scope or amount of the JL Group contract may be requested in the future.

Respectfully submitted,

Kristin Pelletier

Chief Assistant City Attorney,

Civil Division  

Respectfully submitted,

Linda Andal

Human Resources Director

4. Meeks Moves for a Mulligan

Here’s the tonight’s agenda item, with staff report, for Item 10.

RECOMMENDATION: That the City Council, by Motion: 1. Review and modify the decision of the previous City Council to immediately release the investigative report being prepared by JL Group, LLC to address concerns raised by the investigative team, be consistent with the terms of the parties’ contract, minimize the City’s exposure to liability for constitutional/privacy rights violations, and preserve applicable privileges.; and 2. Appoint Scott Tiedemann of the firm Liebert Cassidy Whitmore as Special Counsel to advise the City concerning the JL Group investigation and report, and authorize Special Counsel to work with JL Group to prepare a report that can be publicly released without exposing the City to liability or violating rights or privileges.

Let’s break this down.

1: Modify the previous councils decision to release the unredacted investigative report. Can they do this? As a formal matter, yes. No one has a reliance interest that would make continuation or release of the report mandatory. It would probably look awful, though — or at least an awful lot like a cover-up — and if they did so because they were trying to cover up a report of criminal (and possibly less significant corrupt) activity, it could get them in serious trouble.

2. Address the concerns of the investigative team. Really? What are those stated concerns? Well, while Meeks in particular wants to cite statements by Judge Smith as the impetus for her motion, that’s not really it. Yes, the city might conceivably face liability if one of its employees did something illegal — but if that did happen is hiding it the answer? Usually self-disclosure and a plea for leniency is viewed as much better. As noted below, this concern has some substance in theory, but not a lot in fact. Smith’s concerns were quite minor; Meeks’s concerns go well beyond them.

3. Be consistent with the terms of the parties’ contract. Wait — how would this violate the contract? This is a red herring. As described below, the original contract called for a confidential review. But the Council then modified that contract, on the motion of Dr. Moreno, so that the report would be made public. Public release IS now consistent with the contract. Meeks seems to mean “be consistent with the initial terms of the contract” — which no longer govern! — but this means that she is trying to “unbreak the egg.” This can be done, but coming from someone who can reasonably construed to be a potential person of interest for the investigation, it is such a horrendous act of overreach in the service of self-interest that it suggests that the information she is afraid of becoming public is highly damning. I feel bad for her, really — but I feel worse for Anaheim. (I’ll get to my fix for this later on.)

4. Minimize the city’s exposure to liability for constitutional rights violations. Huh? What constitutional violations are we talking about? (Note that this is NOT addressed in the staff report reprinted above; it just mentions waiver and privacy issues.) I’m not sure, but the only constitutional rights violation that comes to mind would be violating the Fifth Amendment right against self-incrimination for criminal actions. That would be a concern if employees were forced to speak to the investigators for the record. But my understanding is that NO ONE was forced to speak to the investigators, on the record or off; there was nothing like a subpoena process, nor were their threats of retaliation for noncompliance. Even if concerns existed, there are likely ways to minimize this — and NO, and we’ll discuss, Mr. Tiedemann is NOT the one we should want making that decision! So what is Meeks talking about here?

5. Minimize the city’s exposure to liability for privacy rights violations. Yow! Are privacy rights really at issue? They could be, but they probably aren’t. This would only be likely if — as the Staff Report notes, the city were planning on releasing material from an employee’s personnel file. (I’d argue further that the material being in the personnel file is not enough: you can’t immunize an otherwise discoverable public document just by putting a copy of it in a personnel file if the material had originated elsewhere, such as in an unprotected internal communication. Ask John Eastman about that!) But Judge Smith presumably already knows this — and even in the unlikely case that such information was tendered to the investigators, he would know not to allow it. I should note also that “minimize” is a very tough standard to meet here; it means that the value of every other competing interest or consideration should be set to zero, meaning that the safest course of action would be to release nothing. This is antithetical to the purpose of the original motion, reaffirmed by the Council at least twice, and would be both a substantive and public relations disaster.

I’ll add that it’s not clear to me that an individual has a privacy right in not being mentioned in this sort of report based on someone else’s testimony to investigators. Certainly not if this doesn’t come from the personnel file; and, again, maybe not even if comes from someone who did not get it from personally reviewing the person’s file. People gossip.

The staff report says that:

California law affords employees a constitutional right to privacy in their personnel records, and broadly defines a personnel record as any record/document “relating to the employee’s performance or to any grievance concerning the employee.” California Labor Code 1198.5.

Now just a minute. That section of the code regards the documents that the employee has their own right to inspect; hence the broad definition. The city is trying to use that same broad definition as describing the files that cannot be released without the employee’s approval; that’s a different matter (and might, for example, allow incriminating information from co-workers to be withheld from plaintiffs in civil actions and prosecutors in criminal actions, if this definition is applied so widely. It’s been a while since I’ve dealt with this issue in my practice, so I’ll have to look at the cite. But I’ll first note that this right to privacy speaks to an individual’s right, and it can be waived by an individual, should they wish to do so. (This raises the question of how JL investigators would have obtained protected material from personnel records in the first place. Is this really even a problem?

Anyway, let’s go to the cited case.

The courts have repeatedly held that investigative reports concerning potential misconduct of employees are personnel records protected by the right to privacy. See e.g., Associated Chino Teachers vs. Chino Valley Unified School Dist., (2018) 30 CalApp5th 530, 539-41 (disposition letters detailing results of investigation into employee misconduct are personnel records protected by right to privacy). It is therefore advisable for the City to find a pathway to provide the public with information concerning the JL Group investigation in a manner that does not violate its employees’ privacy rights or waive privileges the City did not expressly intend to waive.

This is the first of several instances where the legal citations offered by the city are deeply misleading, suggesting either sloppiness or deliberate intent to deceive. (The possibility that Mr. Teitelmann may have been involved in providing them is extremely disturbing.) Yes, the records in question were found to be protected from the right to privacy — but this was in a case where the district was responding to a CPRA request! The court made clear that its decision was based on a balancing test between the privacy rights in question and the public’s right to know. These cases involved complaints against a gym teacher for patently noncriminal activity: e.g., yelling at students in practice. The importance of the public knowing did not exceed even a small privacy interest.

Now compare that to, for example to documents in Meeks’s personnel record that might, conceivably, her ties to Curt Pringle and whether they had ended up costing Anaheim considerable money for what might have been in part her own personal gain. (I’m not asserting that that ever happened; it’s just a theoretical possibility. Meeks would still have some privacy interest in those documents — but this time that interest would be overwhelmed by the significance of the public being aware of them, even if they were determined to involve gross negligence rather than criminal acts.

Lumping them together as both — implicitly equivalent — privacy interests misstates the holding of the case and seriously cheeses me off. I’ve seen Pelletier at work, and she is no dummy; I’d also like to believe that this is not the sort of bamboozlement she is inclined to pull. So who DID cite this case for this purpose? I’d really like to know! I’d also like to know why this city is inclined to want to keep secret any record of far more serious wrongdoing, if the investigators have it? Who has decided that that is in the city’s interests. (I hope that Meeks wasn’t part of it!)

6. Preserve applicable privileges — Attorney-Client Privilege

The first privilege that the city addresses is its attorney-client privilege.

The City’s argument is that it gave JL confidential attorney-client and other privileged information concerning, among other things, “the Angel Stadium [sic] real estate transaction” ONLY BECAUSE it believed that the report would be for internal use only. In other words, it follows that had the report been intended to be made public, the city would have withheld this critical information from the investigators. (Does that boggle your mind? It does mine!) It suggests the importance of other authorities with subpoena power getting involved in this matter.

We should look at “attorney-client privilege” information (between non-legal city staff and city lawyers, and between city lawyers and outside lawyers) separately from non-privileged information (like other information about the Angels Stadium transaction that did not come from lawyers), because the former have an extra privilege. (I have to say that the phrasing “The City has cooperated with JL Group in its investigation” is pretty rich: the city COMMISSIONED this investigation, it did not reluctantly agree to participate in someone else’s investigation!)

OK, we have to go check out the case citations now. They offer the Petaluma case to support the proposition that “an investigation conducted by attorney is privileged”). Want to hazard a guess as to whether this summary of its implication is misleading?

Here’s what the court actually wrote:

This writ proceeding requires us to resolve two questions related to whether an employer’s prelitigation investigation of an employee’s harassment and discrimination claims is protected from disclosure in discovery. As an initial matter, we consider whether the employer’s prelitigation factual investigation is protected by the attorney-client privilege or work product doctrine when the investigation is undertaken by outside counsel who is specifically directed not to provide legal advice as to which course of action to take. If we conclude the investigation is privileged, we must next consider whether the employer’s assertion of an “avoidable consequences” defense waives any applicable claim of privilege when the investigation was initiated after the employee had already left his or her job with the employer.

The trial court ruled in favor of the former employee on the privilege issue, concluding that outside counsel was acting as a fact finder and not an attorney who was providing legal advice. The court also concluded the employer waived any privilege that might be claimed by asserting an avoidable consequences defense and thereby placing the investigation at issue.

We conclude the trial court erred. The dominant purpose of outside counsel’s factual investigation was to provide legal services to the employer in anticipation of litigation. Outside counsel was not required to give legal advice as to what course of action to pursue in order for the attorney-client privilege to apply. Further, the privilege was not waived by the employer’s assertion of an avoidable consequences defense under the circumstances presented here.

OK, that’s interesting! When privileged information is given to an outside attorney for their legal (fact-finding) input, the material remains privileged — that’s good to know! Now, how does that apply to this case?

Well, as I recall, the investigators of the JL Group are not attorneys. This was not an attorney providing legal fact-finding services in anticipation of litigation. This was a non-attorney providing non-legal fact-finding services in the absence of anticipation of litigation. Not the same thing; the citation doesn’t support the argument.

7. Preserve applicable privileges — Waiver

The second question is this: after the first version of the contract in which the city gave over confidential material to the investigators, and then the City Council changed its mind and decided to make the results public, did that second act constitute a waiver of its confidentiality?

The first case they mention is 1944’s Roesch v. De Mota, which defines waiver of “the intentional relinquishment of a known right after knowledge of the facts.” The city uses this to argue that it didn’t have all of the facts — i.e., what would be contained in the report — and so there could be no waiver. But if we look at Roesch, we get a different sense of the was meant by that.

Roesch is a case about usury. There was a deal, which was not considered usurious at the time; then later the law of usury changed and the transaction was now considered usurious. And the question was whether the party that wanted to have the transaction nullified based on its being usury had waived its right to do so.

it is conceded that the question of usury was not in the minds of any of the parties at the time of the acquisition of the interests of Victor and Sears by Calaveras. It was not until some time after the decision of this court in the case of Haines v. Commercial Mortgage Co., 200 Cal. 609 [254 P. 956, 255 P. 805, 53 A.L.R. 725], that the notes were recognized as usurious. [3a] It cannot be said that the parties to the agreement intended either to waive or to transfer the defense of usury, since the availability of such a defense was not then within their knowledge. [4] Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. (Wienke v. Smith, 179 Cal. 220, 226 [176 P. 42]; 25 Cal.Jur. 926.) [3b] The parties did not know that the notes were usurious at the time they entered into the 1926 agreement, and the agreement cannot be interpreted as imputing to the parties an intention not within their contemplation at the time of the execution of the same.

The trial court found that the defense of usury was available to the plaintiffs. The defendants Victor and Calaveras contend that the defense should have also been found available to them.

This phrase does not relate to knowing what material appears in a report. It’s not about knowing “facts” in general; it’s about knowing a particular KIND of fact: whether one has a particular right. One can’t be charged with having waived a particular right if there was no way that they could have known that they had that right — because the right didn’t yet exist!

Now compare that to the situation of what the Council did last November. The Council KNEW THAT IT HAD THE RIGHT to keep the information it HAD provided confidential. And then IT VOLUNTARILY WAIVED THAT RIGHT. It had all the facts it needed to know ABOUT ITS RIGHTS — and that’s why its action constituted a waiver of them: the Council DID have a specific intent to waive its rights! That this council might wish they hadn’t done so is immaterial: the egg broke!

(At this point, I no longer trust any characterization of the holding of a case in this Staff Report. It’s shoddy._

But let’s proceed.

1921’s Craig case deals with a real estate transaction, which is a completely different area of law with different rules. Waiver is defined as “the intentional relinquishment of a known right after knowledge of the facts.” In this case, the fact that the buyer didn’t know was that the deed to a property was defective — although it looked to be in order and the seller believed it to be in order. When he found out that the deed was defective, did he have to go through with the transaction? No, because he had not been aware of a material fact, and he had not waived his right to withdraw from the deal once it was found to be defective.

What does this have to do with a situation in which the City Council is aware of all of the facts and knowingly and intelligently waives the right to confidentiality? It has NOTHING to do with it. It does not address this sort of matter. That’s strike two.

Finally, 1966’s Ukiah v. Fones. I barely have to read this one: what the Council did in waiving confidentiality is on the record, it is on video, and it was within its rights. That is clear and convincing evidence! I like this one because is was written by Justice Stanley Mosk, who spoke at my commencement. He says:

“Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts.” … The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver”

Well: is this a doubtful case? The City Attorney was there: did the City Attorney, in his capacity as parliamentarian, jump up and intercede because the City Council was acting illegally in rejecting this aspect of the contract? No. This was a knowing waiver, for a discernable purpose, which was within their rights. It does not matter “that the Council was unaware of the information gathered by JL Group or what might be part of the final report, it did not discuss or consider any legal consequences of releasing a report that might violate individual privacy rights.” It did not have to discuss those consequences: it made its decision. (And, again, if there is fault here — and I don’t think that there is — it would lie with the City Attorney who didn’t raise the topic with them. But perhaps he agreed with my view that there was no “attorney-client privilege” with these non-attorneys anyway.

Every single case here is off-base. And while I don’t know who submitted these cases, I suspect that it is more likely to be the guy who does this work for a living — Scott Tiedemann, or someone else from his firm that specializes in this peculiar area of law — and anyone from this firm seems extremely likely to stretch legal terms, legal precedents, and I suspect facts in order to achieve a desired result. This is not — at all, one bit — what one wants in a “Special Counsel” intent on chopping up what the City Council decided was right for the public to know.

5. Where Do We Go From Here?

I don’t see why the city would suddenly, after all this time, decide that suddenly the city had confidentiality interests that shouldn’t, couldn’t, mustn’t be waived. The Staff Report gives a big hint about what may well have changed in the interim: the Angels discovered that confidential information about the stadium deal negotiations were included in the report — and they may have been leaning on the City to prevent its release.

Well, let them sue. It’ll be an interesting lawsuit to consider, especially when they explain why they have standing to prevent the publication of documents — in an investigation of misconduct among donors, including donors who have allowed certain politicians to host fundraisers in extremely privileged areas of their stadium — on which the City Council had already broken the seal of confidentiality. (Do your own dirty work, Arte, if this is indeed your doing.)

Judge Smith has said that the report will go to Anaheim City Clerk Theresa Bass. I doubt that there is any exception in the CPRA that will prevent our seeking it — and I’ll bet that the Voice of OC, the OC Register, the LA Times, and others will join us in doing so.

If four or more members of the City Council want to give in to them — rather that just work with the investigators themselves — they’re just going to be raising questions about their own motivations.

Beyond that, the District Attorney, the Attorney General, and the U.S. District Attorneys should all have their antennae buzzing at the notion that there is something so disturbing in this report — whether it is about the Angels, or Disney, or something else — that someone is leaning hard of the City Attorney’s office to keep it out of their hands. And they should investigate — and subpoena it.

See, City Council? You may fall on your swords for nothing, because everything may come out anyway.

Even if (say) the Angels and the current City Council want to collude in hiding some documents — and please, Theresa Bass, DO NOT let them get you involved in spoliation! — from the public, the media and local interest groups could still sue for a writ of mandamus for the unexpurgated report, especially if (at that point) it seems quite likely to discuss some wrongdoing.

That could be good for everyone — almost everyone — because then the job of deciding what must be redacted from the document, despite its production to non-lawyer investigators, would likely fall to a special master (a magistrate judge, presumably) to make such decisions.

Let’s remember: the present council already said it was OK to go to OCDA’s office. (Do they want to say that he should only receive the redacted version of the report? You want to say that to a guy with subpoena power?

Here are three things that I think that the Council should definitely do as part of this agenda item:

(1) and (2) Adopt an amendment: even if they vote keep the report secret from the public (and to put themselves in the metaphorical crosshairs of prosecutors, they should vote for an unredacted version of the report should go not only to the OCDA, but to the AG’s Office and the US Attorney’s Office. (The latter could refer it to the FBI if advisable.)

(3) To show their good faith, the City Counsel should vote to void any confidentiality clause in Cristina Talley’s settlement with the (about which I’m told Mr. Tiedemann’s firm made a bad prediction and gave bay advice, by the way) and do the same with Chris Zapata if he has any confidentiality constraints.

If Ms. Pelletier gets her way (or more likely the way of someone above her, likely not part of the Anaheim government) on this matter, it’s not going to go away. It’s going to become a juicier story than ever. We many finally see some truth.

As I said at the start, I get why Natalie Meeks doesn’t want this to happen.

But any person or organization that stands with her on this is making a terrible choice. This truth will come out.

Be wise. (And Steve Faessel, get off of the damned fence, for your own good!)