At the last Irvine City Council meeting, an attorney with Rutan and Tucker, the city’s contract attorney, gave some legal advice that has since proved to be inaccurate.
As I reported https://voiceofoc.org/oc_south/article_03be67f2-c0ec-11df-a13f-001cc4c002e0.html in an earlier story, the Great Park uses an environmental consultant, URS Corp., to investigate contamination at the former El Toro Marine Air Base.
The consultant works under two different contracts: one that is open and under the purview of the park, which sits on the former base, and another contract through the city attorney where the work is under wraps.
At City Council’s last meeting, Councilwoman Christina Shea had requested an update in closed session about the consultant’s secret environmental reports since attorney-client privilege meant they couldn’t be discussed in a public meeting. An attorney explaining the attorney-client privilege situation, Richard Montevideo, said a closed session update would be OK.
Shea said she scheduled the update on Sept. 28th, the date of the next public meeting. However, since then, Shea said City Manager Sean Joyce has told her that Montevideo misunderstood the Brown Act. City Attorney Phil Kohn also said Montevideo misspoke and the City Council could not be given an update in closed session.
And, Kohn said, Montevideo used the wrong term to describe the consultant’s relationship with the city attorney’s office. The consultant’s work is not protected by attorney-client privilege, as Montevideo explained, but rather another legal protection called attorney-work-product privilege.
Under attorney-work-product privilege, any discussion or report between an attorney and a third party is confidential — even from the City Council members — until that report is sent to the city.
This has Shea scratching her head — how was it that Montevideo misinterpreted the Brown Act and the relationship between the consultant and the city attorney’s office?
“The whole thing is just ridiculous. For me to be told this attorney doesn’t know the Brown Act? I mean come on,” Shea said.
Kohn said since Montevideo is not a municipal law attorney, that would explain his ignorance of the Brown Act.
But why didn’t Kohn, who was present at the meeting, step in to correct Montevideo?
Kohn said he held his tongue because he didn’t want to make it appear as if the process was too secretive.
“I thought the better part of valor and discretion was to let things run their course,” Kohn said.
Shea doesn’t buy it. She said Joyce had told her that he was concerned about environmental cleanup in certain parts of the former base, and he didn’t want “preliminary information to get out to the public.”
Joyce declined to comment on that conversation.
Kohn said a matrix-report is being prepared that will list every task being done by the consultant, including the work being done through the city attorney’s office. He said that since the report won’t be revealing any details about the work, there wouldn’t be a violation of the attorney-work-product privilege.
Kohn said he didn’t know when the report would be ready for public release, but we’ll let you know when it is.
— ADAM ELMAHREK