Here’s the Fresno city attorney’s full email asking DA Smittcamp to ‘correct’ the record
Fresno City Attorney Doug Sloan on Monday asked District Attorney Lisa Smittcamp to “help correct” remarks she made over the weekend during a television appearance in connection with a recently closed investigation of four city councilmembers.
You can read the full story here.
The Bee obtained a copy of Sloan’s email to Smittcamp on Monday. You can read the full message below.
Doug Sloan’s email to DA Lisa Smittcamp
Lisa,
I wanted to help correct the record based upon a statement you made about Granite Park and a potential Brown Act violation.
Last June, I contacted you only after receiving your letter asking the Council not to vote on Granite Park matters, the letter stating your office was investigating potential Brown Act violations. I had not spoken to you or your office about that before receiving your letter. During that conversation, you said something to the effect of “That place is out of control.” I responded with “What do you recommend?” and that’s when you said “I don’t know, I’m not your boss.” As you know, the Council respected your wishes and did not vote.
My understanding, indirectly, is former City Manager Tommy Esqueda is the City official who contacted your office about a potential Brown Act violation. I did not even know that at the time. I also did not know what alleged Brown Act violations you were investigating.
I would appreciate correcting or clarifying, and I think it would be more appropriate coming from you, rather than me.
On another note, you have said to the media: “An inherent conflict can be assumed from this format [Council appointing the city attorney],” Smittcamp said. “Similar to other important city administrative positions, it would be well-advised for the city council to consider changing the city of Fresno Charter to have the city attorney be hired by the city manager and mayor, and be approved by the city council.”
It appears you are assuming there is something wrong with legal advice provided, but didn’t identify what that was. I believe it would be incorrect to assume advice has been lacking, incorrect, or biased based upon the fact the Council appoints the City Attorney.
In the 475 cities in California, in all but 10 the council appoints the city attorney. There are a handful, the 10, where the city attorney is elected. Notably in the four cities larger than Fresno, three have elected city attorneys, and the other, San Jose, the council appoints. In Sacramento, a similar size city, the council appoints. In no city to my knowledge does the mayor or manager appoint the city attorney. Also, every county board of supervisors (except the special case of San Francisco) appoints the county counsel, including Fresno County. Government Code section 27640. Most cities are general law cities. Those must follow state statutes in how to conduct themselves. State law specifically provides that for those cities, the council is the appointing authority for the city attorney: “The city council shall appoint the chief of police. It may appoint a city attorney, a superintendent of streets, a civil engineer, and such other subordinate officers or employees as it deems necessary.” Government Code section 36505.
There may also be something said for balance of power, as in our Charter the Mayor appoints the City Manager, and has authority over nearly all of the City’s 4,000 employees. The Council has only legislative and contracting authority, and control over legal matters via the City Attorney. Implementing almost everything the Council must approve must be done through the City Manager.
If the concern is a city attorney appointed by council would not prosecute councilmembers for violations of the municipal code, I believe in any circumstance, regardless of who is the appointing authority, that function would be better left to the District Attorney. Besides, my understanding is your office indicated there was insufficient evidence to prosecute with respect to the Brown Act issues discussed.
Elected city attorneys are not without issues, too. San Diego has reported some difficulties with that format, and the LA City Attorney’s Office has some serious issues, as reported in the media.
From the beginning of taking this job nine years ago, my office has provided objective, neutral legal advice to all City officials. Legal advice is provided with integrity and objectivity so that City officials and the public can be assured it is sound advice.
Doug
Here’s Smittcamp’s full response
In an email dated March 7, 2022, Fresno City Attorney Doug Sloan asked the Fresno County District Attorney to provide a clarifying statement regarding comments made on the ‘Sunday Morning Matters’ television program. The email specifically referenced comments made about the recently closed investigation over a possible Brown Act violation involving the Fresno City Council.
In response to a question from the program’s host to address rumors that the District Attorney had been “put up” to intervening in the Granite Park matters by issuing an investigation letter close in time to the scheduled vote, the District Attorney referenced a phone call between her and the City Attorney. The District Attorney’s response to that question, along with her reference to the phone call, was not intended to suggest the City Attorney was the person who lodged a confidential complaint regarding the possible violation. Although it is our common practice and policy not to confirm or reveal the sources of allegations to our Public Integrity Unit if anonymity is requested, the initial complaint to our office regarding the alleged Brown Act violation did not come from City Attorney Doug Sloan.
The Fresno County District Attorney’s Office has an ethical obligation to thoroughly review every complaint and investigate any allegations when the facts and circumstances warrant.
The following is a summary of the initiation of the investigation:
• On June 22, 2021, our Public Integrity Unit received an anonymous complaint regarding an alleged violation of the Brown Act by several City Council members.
• On June 23, 2021, on behalf District Attorney Smittcamp, the Public Integrity Deputy District Attorney sent a letter to City Attorney Doug Sloan and CC’d the entire City Council, City Manager and Mayor about the allegations our office had received and respectively requested that “any vote regarding Granite Park be postponed until our investigation is complete.” [See the original letter attached]
• On March 1, 2022, The Fresno County District Attorney’s Office released a press release that we will not be pursue criminal charges against City Councilmembers for Brown Act or Municipal Code violations.
In the process of preparing this clarifying statement, we were informed by a local reporter that today’s email from the City Attorney to the District Attorney was provided to the media. Without adhering to the City Attorney’s own records release protocols and despite the following disclaimer at the foot of the email:
“This e-mail message is intended only for the named addressee(s) and may contain privileged and confidential information that is protected pursuant the attorney-client privilege and the attorney work-product doctrine. Any dissemination, distribution or copying is strictly prohibited. If you received this e-mail message in error, please destroy the message, and notify the sender immediately by replying to this e-mail or by calling Doug Sloan at the number provided above. Thank you.”
Because of this disclaimer, the District Attorney will not further comment on the contents of Mr. Sloan’s email outside of this clarifying statement. Dissemination of this email, which was leaked to the media, only adds to our concern about the City Council and the need to “fix their house.”
This story was originally published March 7, 2022 at 2:12 PM.