City Hall Transparency? Not When it Comes to Spending on Lawyers

Last month the Santa Clara Stadium Authority/City Council increased the budget for legal bills by $700,000. But Santa Clara taxpayers will have no way to know how their money is being spent.

It was already difficult to know what Santa Clara spends on the services of outside attorneys because that money isn’t itemized in the annual City budget, but the amounts could be compiled from contracts and payment approvals included in Council agendas.

But now it’s virtually impossible for citizens to find out how much taxpayer money is being spent on Santa Clara’s legal bills. In October the Authority/Council, on the advice of City Attorney Brian Doyle, voted to keep Santa Clara’s spending on outside attorneys off the public record.

“There’s a recent California court case that says that legal bills, legal contracts … are covered by attorney-client privilege and should not be revealed to the public,” Doyle said at the Oct. 17 Santa Clara Stadium Authority meeting.  “Therefore we would like not to have to bring the individual contracts and the individual bills for approval in a public forum.”

“The documents are therefore not subject to disclosure as a public record and…will be marked confidential and segregated at the City Clerk’s office,” wrote Doyle in the agenda report. “Furthermore, when the value of such an agreement exceeds $250,000…the agreement will no longer be attached to the agenda report.” While the Council’s action on Oct. 17 applied to Stadium Authority contracts, the Council previously passed similar motion regarding City contracts.

In fact, the case that Doyle cited—LA County Board v. Superior Court (www.courts.ca.gov/opinions/archive/S226645A.pdf)—says nothing about legal contracts. The issue in the case was whether billing records—which are not mentioned in the relevant part of California law, Evidence Code Section 952—were protected attorney-client communications, and thus exempt from the California Public Records Act (CPRA).

Even those that don’t see the ruling as broadly note that total amounts for closed cases are disclosable public records. “The opinion dictates that fee totals are the only portion of attorney invoices that may become unprivileged—and, thus, disclosable under the CPRA—due to the underlying matter having long since concluded,” California school district law firm Dannis Woliver Kelly wrote in a June 22, 2017 news brief.

In its decision overturning an appeals court, Judge Mariano-Florentine Cuellar, writing for the four-justice majority decision, said that the section of the state law about attorney-client privilege was not “a categorical bar on disclosure of a government agency‘s expenditures for any legal matter, past or present, active or inactive, open or closed.

“The imperative of protecting privileged communications between attorney and client,” Cueller continued, “is a defining feature of our law. This imperative does not require us to conclude—as the Court of Appeal did here—that everything in a public agency’s invoices for legal services is categorically privileged.” 

Some legal experts who have analyzed the California Supreme Court’s action say that its effect is to limit the ability of public agencies to withhold information about legal costs, protecting only billing records for active litigation.

“The California Supreme Court has ruled that invoices from a public agency’s legal counsel are subject to disclosure under the California Public Records Act (CPRA), with limited exceptions,” wrote California public agency law firm Lozano Smith in its Jan. 12, 2017 news brief.  

There is no clear reason this issue would come up almost a year after the court decision. However, last May the Weekly requested information about Santa Clara total spending on outside legal services from the beginning of 2016 through May 2017.

The City Attorney’s office denied the request, writing in its reply that “the aggregate amount of legal fees incurred in currently pending litigation is exempt from production as falling under the attorney-client privilege as a result of the recent court decision in Los Angeles County Board of Supervisors v. Superior Court.”

However, the information was already available to any persevering researcher in the form of contracts, appropriations and payment approvals attached to City Council agendas.

The Weekly did, however, obtain the summary legal services budget information for fiscal years 2016 and 2017 from the City Attorney’s office.  It was $210,000 in 2016-17 and $398,000 in 2017-18, according to the City Attorney’s office. However, with the additional $700,000 for Levi’s Stadium-related litigation added in November, the actual spending this year could top $1 million.

Those individual numbers don’t show up anywhere because Santa Clara’s spending on outside legal services isn’t a separate budget line item. Instead, it’s lumped into the Special Liability Insurance Fund account (082-0841).

By contrast, Sunnyvale’s budget for outside legal services can be found under “Outside Counsel” in the Sunnyvale City Attorney’s budget. That city’s budget for 2017-18 legal services is $136,800 and its 2016-17 actual spending was $135,200. However, this isn’t an apples-to-apples comparison because Sunnyvale doesn’t own an electric utility nor does it have a major league sports and entertainment venue within its borders.

Sunnyvale has six employees in the City Attorney’s office, with four attorneys. This is identical to Santa Clara’s City Attorney’s office staffing.