A proposed ordinance that would criminalize anyone who leaks attorney-client privileged documents from Fresno closed-door meetings was introduced Thursday to the City Council, drawing both skepticism and support.
The ordinance was co-sponsored by council members Mike Karbassi and Garry Bredefeld, along with Mayor Lee Brand’s office. The revised version introduced Thursday left out previously proposed penalties on local media.
“In no way does this nor in any way do we want to penalize the media,” Bredefeld said. “They have a role. It’s a very responsible role that they have. It’s a critical role for our society.”
Karbassi said the section that would have charged reporters who used leaked documents with a misdemeanor drew the ire of the community and local media, so it was left on the cutting room floor.
The proposal was not voted upon Thursday.
In the revised version, the misdemeanor charge would still apply to elected officials and city employees involved in leaking documents from closed meetings. It’s tailored similarly to laws in San Francisco and Oakland, which both outlaw disclosure of confidential information.
Under routine rules, certain documents are protected under public meetings rules, such as those related to personnel matters or potential litigation. The documents can be released by a majority vote of the council.
Brand said leaked documents have the potential of costing the city millions in litigation. Councilman Miguel Arias pushed back against that claim, saying the administration has not provided any evidence about leaked documents costing the city.
Assistant City Manager Jane Sumpter said she did not have the numbers immediately available and would have to bring it back to the council later this month.
The ordinance isn’t clear about which officials or employees could be prosecuted, according to Arias.
The ordinance calls for the city attorney, who is hired and answers to the City Council, to prosecute offenders. When asked about whether the proposed penalty would apply to the police chief discussing cases in litigation or elected officials talking about real estate deals, City Attorney Doug Sloan was ambiguous.
“I hate to say it, but the lawyer answer is it depends,” Sloan said to Arias.
That uncertainty sets up a system that can be politicized, and is a conflict of interest for the city attorney, according to Arias.
“The revised version, in my view, is not supported by the evidence provided to us so far,” Arias said.
“As you heard from the city attorney, who gets prosecuted ‘depends,’ “ he continued. “ ‘Depends’ is a very difficult word to operate under. ... It politicizes criminality.”
Some have said the proposed ordinance is redundant. The council already has the power to discipline employees who leak documents, and the Brown Act allows the Fresno County District Attorney’s Office to prosecute elected officials who violate closed session rules.
Councilmember Luis Chavez, who dubbed the proposed ordinance the “Councilmember Karbassi Snitches get Stitches Act,” said he was hesitant to make the city attorney staffers potentially prosecute one or more of their bosses.
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. Sloan also asked The Bee to return the information before publishing.
Councilmember Esmeralda Soria said the ordinance was peculiar because it made no reference to the most recent situation related to Quan.
Soria, an attorney who also teaches law, said she also heard from a number of people in the legal community who were outraged by the ordinance. “There are folks in the community, lawyers, that had a tremendous amount of concerns,” she said.
Karbassi has said the proposed ordinance was not a reaction to the Quan documents. He stressed the measure would protect whistle blowers who suspect wrongdoing.
“My reasons are if it’s confidential, it’s confidential. It’s really simple,” Karbassi said on Thursday. “It’s the universal standard. If you’re in that room and the information is confidential, you shouldn’t be sharing it.”
The proposed measure is expected to be up for a vote at the Nov. 14 meeting.