BY MAIRE O’NEILL
Los Alamos County Councilors voted 4-3 Tuesday evening during their regular session to waive attorney-client privilege on a memorandum of opinion emailed Dec. 14, 2020 by County Attorney Alvin Leaphart to Councilors regarding the proposed purchase and sale agreement for the CB Fox building on Central Avenue. Councilors Sean Williams, James Robinson, David Reagor and Council Chair Randy Ryti voted in favor of the waiver and Councilors Sara Scott, Denise Derkacs and David Izraelevitz voted against.
Councilor Williams said it was probably safe to say the memo discussed a dimension of the proposed purchase that by and large the public is not aware of.
“By continuing to keep the memo privileged, we have effectively cut the public out of a big part of the debate surrounding the proposed purchase of CB Fox and Reel Deal. The obvious solution to this conundrum is to waive the attorney-client privilege on the memo, allow the public to read it and that way the public can be essentially informed as we are, well in advance of the meeting in mid-March where the purchase will actually be decided for real,” he said.
Councilor Sara Scott said she was trying to understand why this is the only mechanism to get the public information on the topic.
Williams said waiving the privilege would be the cleanest way to get the information out. Scott said she was trying to think about past situations where Council had “been able once an item comes up for decision to mull information related to the decision around” and asked why this case different. Asked for an example, Scott said all the other land transactions Council has made decisions on ever since she began watching Council.
Williams said he considered the information in the memo to be “a simultaneous case of being highly-important to the decision and also not something that the public is likely to stumble upon their own”.
“It’s the sort of thing that I certainly would like to be able to tell the public but cannot because of the attorney-client privilege. I think that it is a big missing piece of the public debate about the CB Fox purchase,” he said.
Councilor Reagor in answer to Councilor Scott’s question, that the waiver is not for Council’s information.
“We already have the information, but sometimes the public is upset because the Council has done things that they have no understanding of why, so we have to share some of that information with them about what we’re reading. And I think there was another issue just earlier today about the lockdowns and home rule that I raised a month ago and now the County Attorney had certain opinions on that. We never released any of that to the public so they probably don’t even know how the conversation changed,” Reagor said. “I think I have seen many times the public is complaining about the clarity of Council decisions. That’s a common thing and that’s in all of our surveys as well. They feel we’re kind of opaque. If we’re going to use an important piece of information, some version of it has to be released to the public.”
Councilor Izraelevitz asked Leaphart if there is a legal issue that is described in the purchase and sale agreement – can that be discussed in a public forum and if there’s overlap between an item in the contract and an item that has been presented in Leaphart’s memo, whether or not that is privileged.
“The proposed purchase and sale agreement is a public document and all the facts that constitute the basis of the opinion are facts of the world and are not privileged,” Leaphart responded.
He said he is concerned that the privilege is being so narrowly construed that it is becoming a straightjacket.
“We have simply discussed the topics that are relevant to transactions in the public meeting. Those have and have not included topics addressed by the County Attorney’s office at various different times and privileged communications with various members of the County Council. Just because those topics have been discussed in a privileged environment doesn’t mean they can’t be discussed outside of it. You have to balance that with the simple fact that when you discuss in particular the legal advice that’s being given to you by your attorney with someone who’s not the attorney, meaning anybody else, the likelihood that a court will later determine that the privilege has been waived is enhanced,” Leaphart said. “So I would suggest to Council that they balance the need to discuss things in public relevant to the transactions with the sort of uncertainty of whether you will create facts that may at some date lead to a court ruling that the privilege has been waived. That things have been discussed in a memo between an attorney and their client, does not mean the same factual circumstances in legal decisions can’t be discussed by others. And I’ll leave it at that.”
Under public comment Greg White said he agreed with Leaphart.
“The County is always claiming to have open government but then it seems that particularly when it comes to land purchases and sales that a lot of people in the county are interpreting that the government is not being open, that it’s doing a lot of stuff in secret. Basically what Leaphart is advising is that just because there’s exceptions in the Open Meetings Act to be able to discuss something closed and not with the public doesn’t mean that certain, not necessarily everything, but certain things that are important for the public to understand why the county Council made the decision it did, are available to the people,” he said.
Also under public comment, Aaron Walker said he wholeheartedly agreed with Councilor Reagor.
“In the past, Council has made some decisions and the public has questioned why that decision was made. If you are holding back information that could affect decisions, then that’s not being transparent. This Council has made a commitment to being more transparent. Whether it’s going to damage the public opinion or not doesn’t matter – that has no bearing on this right now because this Council has made a commitment to being more transparent,” Walker said. “There is obviously some information in this memo that should come out or at least Councilor Williams felt should come out. Because of that it needs to come out, period, plain and simple. If you keep it private now, it’s only going to damage the public faith in Council and their decisions going forward.”
Councilor James Robinson said he appreciated Councilor Williams bringing up the issue.
“I have more than once been kind of bumfuzzled about some of the attorney memos that I get about vacancy tax, plastic bag bans, and how to communicate that information to the public without necessarily violating a privilege. All my training through holding a Q clearance says that if it’s sensitive information, you shouldn’t discuss it, even if that information might be publicly available. I don’t think there’s any doubt that given enough resources, someone could figure out how to build a nuclear bomb but just because I know that they can do that doesn’t mean that I get to tell them the particulars of the bomb that I know about,” he said.
Robinson noted that he has heart specifics of the information discussed in the memo already being talked about in the public.
“So as a matter of transparency and since we do have the authority I support releasing this memo and the fact that it gives the public a more well-rounded version than a councilor speaking in specifics and on their own. This is Council as a body saying we want the public to have this, not Councilor A talking about section 1, 2 and 3 and Councilor B talking about another,” he said.
Councilor Reagor said he agreed with Councilor Robinson
Councilor Denise Derkacs said the advice from the County attorney is privileged.
“Waiving attorney-client privilege I believe is ill-advised and could set precedence for future matters. The Council can discuss matters related to the possible property purchase without waiving this privilege. The purchase agreement itself during the inspection topics does mention the topics of the advice and I think that Council can discuss the information in the public without waiving the privilege so I don’t think we should go down this path of waiving the attorney-client privilege,” Councilor Derkacs said.
Councilor Izraelevitz said he thinks releasing this memo is kind of shirking in a sense Councilors’ own responsibility to understand and to seek the resources needed to be able to speak to the issues in the memo appropriately.
“I definitely agree that this would set a very bad precedent for a variety of reasons, some of which Mr. Leaphart has discussed. Let me give you a theoretical example for the public’s benefit. If there is litigation and Mr. Leaphart is telling us something about what a litigation strategy might be, yes, councilors will know about it. Is this something the public should know about at that point when the litigation is going on? That’s not transparency. That’s not being responsible to us being the stewards of the public’s funds, interests and so forth,” he said. “So yes, we have to be careful about how we use privileged information, how it’s divulged.”
Izraelevitz said he doesn’t understand the argument that Council has to release this document with all the other precedence that it takes, unknown legal liabilities that might come from it, when he feels very comfortable that everything that we need to discuss is in the purchase and sale agreement.
“So we should all read it, discuss it, write articles about it, highlight things that are important to it and that I think is just the simplest and most direct path forward to complete transparency as the public deserves at this point,” he said.
Councilor Scott said she wanted to be clear.
“I believe we can and should clearly and openly communicate key and important information relative to proposed actions. I absolutely support doing that, however in this case, based on the information that’s already out there, and based on comments from our attorney, I feel like we can do that and that waiving the privilege in this case is not necessary. Certainly in cases where it is and we need to get important information out there that’s not available through any other forum, we should waive the privilege. We have done that in rare cases before but there was very clear and specific reason for doing so and I’m not finding that here,” she said.
Councilor Scott said she thinks if there is a concern that there is “critical decision-making information that is not available or will not be available”, it should be addressed.
“Let’s address that and work with the attorney’s office and figure out how to get that resolved. But absent any specific concerns I don’t see the need for that in this specific case and I do support that the public is alerted as this information continues to be developed. We aren’t at an end point here in the information that will be available relative to this decision. It will continue to evolve and mature and we need to continue to get that out to folks and we will do this but I don’t think this is an essential action to accomplish that,” she said.
Council Chair Randall Ryti noted that after speaking to Leaphart and others, there were other options.
“Releasing the memo is one solution. Another solution might be to ask Mr. Leaphart to write a one or two page memo describing the issues that the public would like to know about in this memo that is for public consumption. Right now that is a 39-page memo. A written document is probably preferred but I think we could probably even ask Mr. Leaphart today what the main issue is that is described because we are discussing the memo,” he said.
Councilor Williams responded that the memo is only five pages but the document is long because contains the entire purchase and sale agreement along with all of its own attachments.
“The memo itself is quite brief. About having a one or two page memo to avoid having to waive attorney-client privilege, I think having to ask that question asks a much more disturbing question, frankly, which is why was this memo marked ‘privileged attorney-client information’ in the first place if there’s nothing privileged. I think every other road we could walk down is even more dangerous than this one. This I think is the safest path to walk,” he said.
Councilor Williams said that he agreed that there are some things that shouldn’t be released such as memos that would compromise the County’s position on matters of litigation.
“But that’s not what we’re talking about here. We’re talking about a policy analysis that ultimately Council is going to have to rely upon in making the final decision on whether to close on the transaction. I’d also say that I have asked Mr. Leaphart about where these lines are drawn between what is and is not breaching the privilege. I have not gotten a useful answer. I’ve just gotten a bunch of vague, nonsense from him,” he said. “That is another part of why at least I decided to go down this road, because this is a very clear and precise approach to these things.”
The actual contents of the memo were not discussed at the meeting even after the vote to waive privilege. The Los Alamos Reporter requested a copy of the memo which she received Thursday morning.