Fresno leaders want leakers to face a misdemeanor. Is that constitutional?
The Fresno City Council will vote at its next meeting on an ordinance that would make leaking or publishing the city’s attorney-client privileged information a misdemeanor.
The proposed ordinance also says that upon city attorney demand, any unauthorized person who receives confidential information must return it without copying the information or disclosing it.
Under the proposed ordinance, confidential information would only be releasable by a City Council majority vote.
Councilmember Mike Karbassi, a cosponsor of the ordinance along with Councilmember Garry Bredefeld and Mayor Lee Brand’s office, said the ordinance is intended to protect taxpayer money and prevent leaks, which he said have been an issue at City Hall in the past and present.
Closed-session business that the City Council and mayor’s administration deals with should only be released upon careful consideration and a majority council vote, Karbassi said.
“If there’s something the public needs to know, the majority will vote to release that. That’s the right thing to do,” he said. “I don’t want the council and our closed-session personnel or legal matters to be held hostage by one councilmember with an agenda.”
Brand said he supports the ordinance, saying leaks have become a “serious” problem at City Hall.
“The leaking of confidential information, whether it be litigation, settlements, personnel matters or contract negotiations, has cost Fresno taxpayers and could cost them millions of dollars more in the future,” he said in a statement emailed by a spokesperson. “The Brown Act was written to require public agencies to do the public’s business transparently out in the open, but also control the flow of confidential information to lawfully conduct certain functions in closed session to protect individual privacy as well as the public purse.”
The proposal comes after The Bee published a story about City Manager Wilma Quan threatening legal action against the city and demanding an investigation into a council member for discrimination and creating a hostile work environment.
The story was based on attorney-client privileged information obtained by The Bee. Fresno City Attorney Doug Sloan asked The Bee to return the information before publishing.
Karbassi said that case was not a catalyst for the proposed ordinance, which he said has been long needed. He also said he’s open to adding language that would protect media.
But The Bee’s editor, Joseph Kieta, said the policy should be dead on arrival at the City Council.
“This is a really misguided ordinance that would have a chilling effect on whistleblowers and the public’s right to know what’s happening in city government. I have forwarded this to The Bee’s attorneys for feedback,” Kieta said. “The Bee frequently is sent internal city documents that lead to important, revelatory stories that are in the public interest. This ordinance would make such disclosure illegal and punishable as a misdemeanor. I don’t see how it is constitutional.”
“Just because the city doesn’t want you to know about something doesn’t mean it’s not newsworthy,” he said.
Jim Ewert, general counsel for the California News Publishers Association, cited a number of U.S. Supreme Court cases that demonstrate why the proposal is unconstitutional.
“While they can probably institute a limitation on how attorney-client privileged documents can be disclosed, it is ill advised they create a criminal penalty if that happens,” Ewert said. “In their attempt to restrict the publication of information that is legally obtained by a journalist, that is flatly unconstitutional.”
Councilmember Miguel Arias said leaks are normal and happen in every governing body.
“The timing of this is suspect given we’re in the middle of a mayoral race with multiple outstanding cases that this policy would apply to,” he said.