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Home My WebLink About2008/09/23 Item 11 CITY COUNCIL AGENDA STATEMENT ~\ft.. Cln' OF ~ (HULA VISTA September 23, 2008 Item~ SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE RELEASE OF CERTAIN DOCUMENTS RELATING TO THE PAYMENT OF COUNCILMEMBER CASTANEDA'S LEGAL FEES AND WANING THE EVIDENTIARY PRIVILEGES AND GOVERNMENT CODE PROTECTIONS ATTACHED TO THOSE DOCUMENTS Bart Miesfeld, Interim City Attorney &C..-...- ITEM TITLE: 4/STHS VOTE: YES D NO 0 SUMMARY At the September 16, 2008 City Council meeting, Councilmember Ramirez requested that staff agendize an item to discuss the payment of legal fees for Councilmember Castaneda. This item has been prepared in response to that request. By adopting the resolution, Council would authorize the release of certain memoranda prepared in connection with the payment of Councilmember Castaneda's legal fees and waive the evidentiary privileges and Government Code protections attached to those documents. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed actlVlty for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because adoption of the appendix to the Local Conflict of Interest Code does not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION That the City Council take action as it deems appropriate. BOARDS/COMMISSION RECOMMENDATION Not Applicable. 11-1 I' SEPTEMBER 23, 2008 Item i! Page 16f2 DISCUSSION In May 2008, attorney Marc Carlos submitted a letter to the City Attorney's office demanding that the City pay the legal fees and expenses incurred by Councilmember Castaneda in his defense of several criminal charges brought against him by the District Attorney's Office. Each charge was ultimately disposed of by the court, the jury or the District Attorney; Mr. Castaneda was not convicted on any of the charges. Pursuant to the letter from Mr. Carlos, Mr. Castaneda incurred legal fees and expenses totaling $194,314.90. In the letter, Mr. Carlos also noted that "Mr. Castaneda has spent over a year and a half of his life defending this case and is prepared to fully litigate his legal rights under the Charter including any damages resulting from the City's actions." Subsequently, the Council met in closed session to discuss the request and the City's response. The Council authorized the Interim City Attorney to negotiate with Mr. Carlos regarding payment of the fees. On August 20, 2008, Councilmember Castaneda and Mr. Carlos accepted the City's offer. A copy of the final settlement agreement was provided to the City Clerk's office to be made available to the public, and the fact that settlement had been reached was publicly reported. Requests have been made for the release of memoranda prepared by the City Attorney's office and outside counsel, Steve Quintanilla, in connection with this matter. Those documents are protected from disclosure by the evidentiary privileges attached to attorney work product and attorney-client communications and are exempt from disclosure pursuant to Government Code S6254(k). In order to release the documents, the Council must waive those privileges and protections. In determining whether to do so, the Council should be aware that this action may give the impression that a precedent has been set for future closed session matters. In addition, once waived, the privileges and protections cannot be asserted in the future, as to the documents released. Thus, the memoranda potentially could be used in future litigation on this matter. The documents the Council is being asked to disclose have been provided to the Council under separate cover. They are not included with this item because the Council has not yet waived the applicable privileges and protections. By adopting the attached resolution, the Council would waive the evidentiary privileges and Government Code protections against disclosure and authorize release of the memoranda. The waiver would apply to the memoranda regarding payment of Mr. Castaneda's legal fees, only; it would not apply to future matters. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section I 8704.2(a)(l ) is not applicable to this decision. FISCAL IMP ACT There is no fiscal impact associated with this item. J:/Attorney/JiIlM/AGENDA STATEMENTS/2008 Agenda Castaneda Legal Fees 11-2 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE RELEASE OF CERTAIN DOCUMENTS RELATING TO THE PAYMENT OF COUNCILMEMBER CASTANEDA'S LEGAL FEES AND WAIVING THE EVIDENTIARY PRIVILEGES AND GOVERNMENT CODE PROTECTIONS ATTACHED TO THOSE DOCUMENTS WHEREAS, at the September 16, 2008 City Council meeting, Councilmember Ramirez requested that staff agendize an item to discuss the payment of legal fees for Councilmember Castaneda; and WHEREAS, in May 2008, the City received a letter from Councilmember Steve Castaneda's attorney, Marc Carlos, requesting that the City pay the legal fees and expenses incurred in Mr. Castaneda's defense of the criminal charges brought against him by the San Diego District Attorney's Office; and WHEREAS, the Council met in closed session to discuss the request and the City's response; and WHEREAS, the Council authorized the Interim City Attorney to negotiate with Mr. Castaneda's attorney, Mr. Carlos, regarding payment of the fees; and WHEREAS, on August 20, 2008, Councilmember Castaneda and Mr. Carlos accepted the City's negotiated offer; and WHEREAS, upon receiving the acceptance of the City's offer, the City provided a copy of the settlement agreement to the City Clerk's office for public review, and publicly reported the fact that settlement was reached; and WHEREAS, requests have been made that the City release the memoranda prepared by the City Attorney's office and outside counsel, Steve Quintanilla, regarding this matter; and WHEREAS, these documents represent attorney work product and attorney-client communications and, as such, are protected from disclosure by certain evidentiary privileges, and are exempt from disclosure under the Public Records Act, pursuant to California Government Code S6254(k); and WHEREAS, in order for the City to release those documents, the City Council must waive those privileges and protections; and WHEREAS, in determining whether to do so, the Council should be aware that its action may give the impression that a precedent has been set for future closed session matters; and 11-3 Resolution No.7 Page 2 WHEREAS, once the privileges and protections are waived, they cannot be asserted in the future, as to any documents released; and WHEREAS, those documents potentially could be used in future litigation; and WHEREAS, the Council desires to waive the privileges and protections attached to the memoranda and authorize the release of the memoranda (which have been provided to the Council under separate cover); and WHEREAS, the City Council does not intend this waiver to apply to future matters. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista waives the evidentiary attorney-client and attorney work product privileges, and the protections provided by California Government Code S6254(k), with respect to the following memoranda regarding the payment of Councilmember Castaneda's legal fees and costs: (i) memorandum from Steven B. Quintanilla to Bart Miesfeld, dated July 3, 2008; and (ii) memorandum from the City Attorney's office to the City Council, dated July 15, 2008; and authorizes the release of those documents; this waiver does not apply to future matters. Approved as to form by 3('~ Bart Miesfeld Interim City Attorney 11-4