Wednesday, September 15, 2010 | Irvine City Council member Christina Shea is arguing that documents pertaining to contaminated soil at the Great Park, which are now wrapped up under attorney-client privilege, should be made public.
But first, she'd like to get a look at them.
Shea and environmental consultant and activist Roger Butow were expected to raise transparency issues at last night's council meeting regarding reports by URS Corp., the environmental consultant investigating contamination at the park.
It turns out that the information has not only been kept from the public, but the City Council hasn't been given any updates on the work either, according to Shea.
"I'm your client, as you suggested, but I haven't heard a word about what they're [URS Corp.] doing, and I think I should have some updates," Shea told Richard Montevideo, a lawyer from the law firm Rutan and Tucker, which Irvine contracts with for city attorney services.
The consultant has been working since last year under a contract through the city attorney. The details of that work have been kept under wraps.
The park is on land that was formerly the El Toro Marine Corps Air Station. The land has been contaminated by a large TCE plume in the groundwater running beneath the park and central Irvine. Other contamination at the park includes lead paint findings at the proposed western picnic area.
Montevideo said the scope of the consultant's work is to help the city attorney understand "overlapping legal and technical issues" related to clean-up efforts. He said the consultant, as an extension of the city attorney's office, has to keep its work secret.
"The outside world isn't entitled to understand what your lawyer's thoughts are, and the consultant is the arm of the lawyer," Montevideo said.
A staff report used the example of an environmental insurance policy to explain the need for attorney-client privilege. The insurance policy requires that the city update its five-year-old cleanup standards for the park. The draft reports on updating the cleanup plan are not made public because doing so could have an effect on the insurance policy.
"Until we get to a point where the work can be finalized and submitted for public review, it is protected," Montevideo said.
When Shea pressed Montevideo on the lack of updates to the council, Montevideo admitted that council has yet to be briefed in closed session about the work the consultant is doing for the city attorney.
Montevideo tried to downplay the scope of the consultant's confidential attorney-client privilege work, saying it is limited.
"URS has done so much more for the city than what they've done -- in terms of the limited scope of work they've done -- under our direction," Montevideo said.
But the Orange County Register reported last year that of the $500,000 earmarked for the then-pending environmental study, $250,000 was set aside for the city attorney and its consultant subcontract.
Shea is not convinced that all the consultant's work can be protected under attorney-client privilege. The attorney is supposed to meet with the client and receive regular direction. But in almost a year, no such meeting occurred, Shea said.
"You're kind of working with staff and doing something that -- I think now I'm understanding -- is not falling under this attorney-client privilege," Shea said.
Shea also doubts the documents in question are protected under attorney-client privilege because they don't pertain to any litigation, which she believes to be "the only way they can do this."
Montevideo said he would set up a closed session meeting with City Council through the city manager to discuss the work of the consultant.
Shea made it clear that if she finds that the documents are not privileged, she will release them to the public.