when the city`s interest and those of the elected official collide

Transcription

WHEN THE CITY'S INTEREST AND
THOSE OF THE ELECTED OFFICIAL
COLLIDE
League of California Cities
City Attorney's Spring Conference
May 7 - 9, 2003
Silverado Resort
Napa, California
Michael D. Martello, City Attorney
City of Mountain View
500 Castro Street
Mountain View, CA 94041
Phone: 650-903-6303/FAX 650-967-4215
Email: [email protected]
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WHEN THE CITY'S INTEREST
AND THOSE OF THE ELECTED OFFICIAL COLLIDE
INTRODUCTION
Case studies often provide the best understanding of issues notwithstanding the pain that
may have been experienced by the participants. Included with this material as Appendix
A is the "Report to the Mountain View City Council on the REMOVAL OF MARIO
AM BRA FROM HIS OFFICE AS COUNCILMEMBER ON APRIL I 8 , 2002" (the
"Ambra Report"). This report was prepared at the request of the City Council and was
widely distributed by request in print form and remains available on the City's website
(www.ci.mtnview.ca.us). After removal of the council member from office, the Council
would have preferred to let the matter fade into the sunset, however, the report became
necessary when misinformation relative to the reasons for removal began to distort the
reality as to why the underlying actions of the City and the District Attorney were
required. Therefore, the report provides a good foundation for understanding many of the
lessons learned.
ABBREVIATED FACTUAL SUMMARY
Mr. Ambra assumed his office in January 1997. He was elected to an at-large four-year
term on the seven member City Council. The City Charter includes a two consecutive
term limit. He was re-elected to a second four-year term in November 2000 and was
selected mayor in January 2001 consistent with the one-year rotation protocol. Between
the election in November and his selection as Mayor, he began announcing to staff that
there was a "new regime" and there were going to be "changes made," meaning in City
policy as well as in staff positions. His behavior between January and June of 2001
included bullying City staff, trying to have at least one department head fired, threatening
to fire the City Manager, violating the conflict of interest laws and violating the City
Charter provision relative to interference with the administration of city government.
During his first term he behaved similarly, however, he now was more strident in his
demands.
On almost a daily basis during this period the Councilmember was cautioned and at some
points ordered to cease and desist the behavior. Emboldened by his reelection and overly
impressed with his new status as Mayor, he would have none of the advice or direction.
Staff, however, did feel that up and to the point of June 2001, we had been successful in
preventing him from benefiting from his illegal actions.
June 2001
The Council member threatened to have the City Manager fired if he did not order the
Planning Director to heavily condition or deny a development project proposal next to
property owned by his family. His aim was to buy the neighboring property at a discount
which in tum would enhance the developability (and profitability of his property).
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F rustrate dw ith the inabi li ty to stop the conduct, the C ityA ttorne y te le phone d the V ice
1 adv ising the m of his inte nt to consu ltw ith the
M ayor an d the Ci ty M an age r on J une 20 h
D istrict A ttorne y to seek w hateve r he lp mightbe av ail ab le. T he nex t morn ing on Ju ne
21 5\ the C ity A ttorne y andC ity M anage r me t w ith the V ice M ayor and tw o se nior
me mbers of the C ou ncil an d discu sse dv ariou s altern ative s.He ar ing no supe rior
alte rnative s, the C ity A ttorne y adv ise d those asse mb le d of his in te ntion to consu ltw ith
the D istrict A ttorne y. T he V ice M ayor se nt a me mo to the C ity C ounci l on that date
adv ising the C ou ncil of the mee ti ng and the C ity A ttorne y's i nte ntions.
T he C ity A ttorne y, accompanie db y the P oli ce C hief, me tw ithD istrict A ttorne y, Ge orge
Ke nne dy, on Friday, Ju ne 22nd. T he D istrict A ttorne y offe re d to l ook into the matte r. He
assigne d an i nve stigator and a se nior assistant district attorney. T he D istri ctA ttorne y
ul timate ly de cide d not to pu rsue crimin al charge s, sub mitting the case to the civ ilG rand
J ury. C ity e mployee s te stifie dbe fore the G randJ ury w hich re su lte d in a fou r-cou nt
accu sation issue d onO ctobe r 30, 200 1 .Be twee n June 22 nd an d the O ctobe r grandj u ry
procee dings the on going inve stigation neve rbecame pub li c.
Mr. A mb ra de nie d the truth of the accu sation(G ov. C ode § 30 65) and the matte rw as se t
for trial. T he week and a halfju ry trial conclude d on A pril 5 th. T he ju ryw as charge d on
A pril gth and de libe rate d u ntilA pril11th w he n the y su staine d the accu sation. T he ju dge
t . M r.
signe d an orde r re mov ingM r.A mb ra from office one week late r on A pril 1 8 h
A mb ra atte mpte d to re si gn at4:00 p. m. on A pril! ih.
Of the fou r cou nt accusation, only one cou ntwent to trial: the count alle gingvi olation of
the C ity C harte rb y inte rfe re nce w ith the city manage r form of govern me nt.
THE CITY CHARTER
Section 607. N on -inte rfe re nce wi thA dministrative Servi ce
Ne ithe r the C oun cil nor an y of its me mbe rs shall in te rfe re w ith the
exe cution b y the city manage r of the ci ty manage r's powe rs an d du tie s, or
orde r, dire ctl y or indi re ctly, the appointme ntb y the city manage r, orb y
any of the de partme nt he ads in the admi nistrative serv ice of the C ity, of
any pe rson to an y office ore mploymen t, or that pe rson' s re mov al
therefrom.Ex ce pt for the purp ose of inq ui ry, the C ollilcil and its me mbers
shall de alw ith the admi nistrative se rv ice sole ly throu gh the ci ty manage r,
and ne ithe r the C ouncil nor any me mbe r the re of shall give orde rs to any
sub ordinate of the city manage r, e ithe r pub licly or pr iv ate ly.
THE ACCUSATION
T he first three cou nts of the four cou nt accu sation e ach alle ge dv iolations of
G overn me ntC ode Se ction 8 7100 ande achwe re di smisse d as part of the pre trial
proce du re. Mr. A mb ra re pre se nte d to the C ou rt that he had no financi al inte re st in
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the prope rty u pon w hich he live d( andwhi ch he w as tryin g to devel op) wi thin the
me anin g of the PoliticalRe fonn A ct. Un de r a see mi ng te ch nicali ty, M r.A mb ra' s
effor ts toi ncre ase the v alue of hi s family' s prope rty holdin gs on Ren gstorff
Aven ue w ould the refore be avi olation of the common law con flict of in te re st
doctrine, b utw ouldn otbe av iolation of the Poli ti calRefor mA ct (PRA) 1• S ince
the first three coun ts of the accusation did not alle ge v iolati on s of the common
law confli ct ofi nte re st doctrine, the Di strictA ttorne y made a moti on to di smiss
the charge s w hi ch moti on w as gr an te db y the C ourt.
T hose first h
t ree counts also se t forth spe cific acti on sb yM r.A mb ra that pur porte dly
we re in vi olati on of the Poli tical Reform A ct. T he fourth coun t of the accusati on w as
in ten de d as a catch-all an d, w ith the pre amb le, re ads as follow s:
"T he G ran dJ ury of the C oun ty ofS an taC lar a, S tate of C ali forn ia, he reb y
accuse s M ario L ouie A mb ra, a duly e le cte d an d acti n g C oun ci lpe rson for
the C ity of M oun tain View, in the C oun ty of S an ta C lara, C alif orn ia, of
kn ow in g, wi llful an d cor rupt mi scon ducti n office, in v iolati on of
G ov ern me nt C ode Se ction 30602 , commi tte d as follow s:
COUNT4
T hat on or ab out andbe tween A pril! , 1997, and Se pte mbe r25, 2001, the
saidM ario L ouie A mb ra, dulyele cte d an d actin g C oun ci lpe rson for the
Ci ty ofM ountain V iew, in the C ounty of S an taC lara, C alif orni a, did
k now ingl y, an dwi llfu lly in te rfe re w ith the exe cuti on b y the M oun tain
View C ity M anage r of the manage r' s powe rs an d dutie s an d orde re d
di re ct ly an din dire ctly the re mov al of the M ountain V iew C ity M an age r
an d the C ity ofM ountain View P lann ingDi re ctor andfai le d to de al w ith
the C ity's admi nistrative se rvi ce sole ly thr ough t he Ci ty M an age r an d
gave orde rs to sub ordi nate s of the C ityM an age r, in vi olati on of the
M ountai nView Ci ty C harte r Section 607/1604.
T he Di strictA ttorne yv iewe dC oun t4 as a catchall charge e mb raci ng all the factual
circumstan ce s of the first th ree coun ts of the accusati on . C oun ts 1 3 alle ge dv iolati on s
of the PoliticalReformA ct re lati ng to his fami ly' s prope rty holdi ngs. In a pre trial
motion gran te di n fav or of the Pe ople, the Di strict A ttorne y w as per mitte d to in troduce all
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1 See the discussion of the PRA issues in the Ambra Report, (pp 5-6 and 13), attached as Appendix "A".
Mr. Ambra's Form 700 disclosed his ownership interest in the property.
2 Government Code§ 3060 is found in Chapter 7 (Removal From Office), Article 3 (Removal Other Than
by Impeachment) and reads as follows:
Section 3060. Accusation By Grand Jury
An accusation in writing against any officer [of the] ... City, including any member of the governing
board ... , for willful or corrupt misconduct in office, may be presented by the grand jury of the county
for or in which the officer accused is elected or appointed. An accusation may not be presented
without the concurrence of at least twelve grand jurors, or at least eight grand jurors in a county in
which the required number of members of the grand jury is eleven.
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evi denc e he had planned to introduc e as part of thec ase i nc hi ef on C ounts 1 through 3
rel ativ e to the C ounc ilmemb er'sc onduc t to support C ount4 of the acc usati on.
THE TRIAL
T he Di stric t A ttorney c all ed el ev en (1 1) wi tnesses to testi fy atM r.A mb ra's tri al,
i nc ludi ng ei ght (8) Ci ty employees, M r. A mb ra' s c ousi n, areal estatebrok er and a loc al
realtor. T he defensec alled nowi tnesses andM r. A mb ra did not testify. A lthoughcivi l
i n nature, a 30 60 tri al i sc onduc tedi n all aspec ts lik e ac rimi nal trial.
T heC ounci lmemb er hi red a sk illed and respec ted defensec ounsel andreportedly spent
$125,0 00 i n that effort. T he defensec onsi sted largely of ( 1) argument that M r.Arnb ra
had, from the ti me he w asfirst el ec ted, ob jec ted to the stric t adherenc e to thec ouncil
manager form of gov ernment; (2) that the rules regulati ngc ounci lmemb ers'c onduc t
under the c ounci l-manager form of gov ern mentw erev ague andi nc onsistently appli ed;
and( 3) the v enerab le" li ar, li ar pants on fire" defense.
W hy N o M emos?
T he Ci ty A ttorney w as feted to tw o hours on di rec t and tw o and a half hours on c ross
ex ami nati on. T heb ulk of thec ross- ex aminati on sought to estab lish thatM r.A mb ra had
b eenc ri tic al of some of the aspec ts of the running of theC ity A ttorn ey' s O ffic e and that
w ew ere ret ali ati ng agai nst hi mfor hi s vi ew s. M uc hw as made of the fac t that w ith all
the v ari ousc ounseli ng affordedM r.A mb ra(6 0- 10 0 sessi ons per our testi mony) , the
Ci ty A ttorn ey hadw ri tten" no memos." D efense c ounsel argued to thej ury that attorn eys
arew ri ters and attorn eysw ri te memos. A lthough giv en li ttle opportuni ty to ex plai n w hy
I had notw ri tten the memos, the defense's poi nt seemed tob e lost on thej ur y. S eni or
A ssi stant Ci ty A ttorn eyJ anni e Qui nn al so testifiedb efore the grandj ury and at tri al.
T ooM any M emos
O n the other hand, theCi ty M anager spent tw o hours on di rec t andfour and a half hours
on c ross largely b ec ause hew rote too many memos. T heCi ty M anager of M ountai n
Vi ew is v ery stri denti n mai ntaini ng the li ne w hic h demarc ates polic y-setting onb ehalf of
the c ounci l and admini strati on of theci tyb y theci ty manager. A s a result ofM r.
A mbra's efforts toi nterfere ov er the pri or four years, hew rote a numb er of passages i n
memos to theC ounci l. M any of these passagesw ere i nc ludedi n memosrelativ e to hi s
annual performanc e ev aluation.
T hese w ri tings w ere playedb ack to him and hew as q uesti onedi n exc ruci ati ng detai l.
Ci ty managers often try to mak e thei r poi nt diplomatic ally ( a faultI do not suffer from) .
For ex ample, the Ci ty M anagerw ouldi nc lude passages suc h as ''w hile I trulyv alue all
the i nput thatC ounci l giv es me and memb ers of my staff, andw hi le I do not w ant to
i nhibi t the C ounci l' s abi li ty to di sc uss matters direc tlyw ith the staffw hen appropri ate ..."
T heC ounc ilmemb er had retai ned all of the ev aluati on memos and the defense used them
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to show that the lineb etw eenp erm issib le inqu iry andp rohib ite d interference w as not
cle ar. T he mem os, m any ofw hic hw erep riv ileged, w ere introduce dw ithout objec tion.
O therp ub lic m em os w rittenb y the CityM anage r wer e lik ew ise" dip lom atic ally w orded"
w hic h the defe nse tried to show c reate d, at be st, averyb lur ry line b etwe enw hatw as
allow ed underC harter S ec tion607 andw hatw as not. He lp ful to thep rosec utionw as the
C ity M anage r' sj ourn al e ntriesw hic h narrativ el y rec orde dme etingsw ith and
adm onishme nts of Amb ra.
CHECKLIST OF THINGS TO CONSIDER
1. Do you have an obligation to report misconduct?
T his is the m ost imp ortantc onsideration. C le arl y unde r som e state andfederal law s(for
ex amp le G overnme ntC ode S ec tion 1090\ ac ity attorne ym ayb e ob ligate d to rep ort
v iolations. H av ing said that, howev er, w hen that m andatory req uireme nt is notp resent, it
is e asy to rationalize that it is not your ob ligation. A c asec anbe m ade, howev er, that if
good gove rnme nt dep ends on i nte gr ity, and no one is w illing to step up to the p late to
enforc e inte grity, w ew ill all stand aroundw hil eR om eb ums.
A sc ity attorn eys, we have som e indepe nde nt dutie sb y statute ( e. g., to imp lem ent the
elec toralp roce ss) . W e hav e i ndep ende nt author ity sep arate and ap art from the inp ut of
our employers, tom ake su re that an imp ar tial anal ysi s is imp artial ; thatc andidates are
tec hnic ally qu alified; and thatb allot titles and summ arie s are fair and acc urate. We do
not defe r to" any c lient" or c ity c ounc il in fulfill ing those re sp onsib ilities.
V ote rs andc onstituentsb elieve those func tionsw illbe done e thic ally an d app rop riate ly,
ourc onstitue nts alsobe liev e that some one is resp onsib le for b ringing to light
m alfu nc tions in gove rnme nt w hen the w rongs inv olv e ethic s, inte grity andv iolation of
the law.
Perhap s the"E nron Ru le" c ouldbe our gu idingp rinc ip le:
What did you know? When did you know it? And what did you do
about it?
T his w as one of the c oncep tsw hic h c omfor tedu s in rep or ting thism atte r aswe aw aited
the G randJury's delib erations. S aid differently, how w ouldw e hav e fe lt as p ub lic
offic ials, had the G randJ ury, D istric tA ttorn ey or a new sp ap erb roughtM r. Amb ra' s
ac tions to lightw ithou t our inv olveme nt? W henwe we re aske d the que stion: "W hat did
w e k now ? W hen didw e kn ow it? A ndw hat did you do ab ou t it?" w e w ouldb e
emb arrassed or ashamed; or b etter yet: "We re you ever going to stop him ?"
J
Government Code Section provides: "[U]pon the officer charged with the disbursement of public monies
being informed by affidavit that any officer, whose account is about to be settled, audited or paid by him,
has violated any provision of this article, the disbursing officer shall suspend such settlement or payment,
and cause the district attorney to prosecute the officer for such violation.
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2.
Constraints on reporting.
The attorney will want to consult the state constitution, the general law, the city charter as
well as the State Bar Rules. I have attached pertinent ethical rules from the State Bar, as
well as Model Rules of Professional Conduct from the American Bar Association
(Appendix B).
3. Create a public file.
Whether this issue is going to be reported or will eventually see the light of day through
other means, you should consider what will be available to the public. Be conservative in
using the label "privileged and confidential" unless you can cloak them in the attorney
client or work product privilege for the agency and not just for that one elected official.
Labeling a document attorney-client privilege or attorney work product when it relates to
the individual councilmember (and not to the agency) may give rise to a claim by that
official that they enjoyed an attorney-client relationship with you.
In the Ambra case, as soon as we consulted with the District Attorney, we created a
public file and included only those materials that related to the subject and were public.
The District Attorney made several requests for information and before placing the
materials furnished to the District Attorney in that public file, we cleared same with them.
This matter was referred on June 22nd and the news did not break until the District
Attorney issued a press release in November of that year. We were therefore well
prepared when the requests for documents relating to this issue were lodged by the media
and the public.
4. Avoid attorney-client privilege.
Admonish Councilmembers to the point of being annoying that they cannot have an
individual attorney-client relationship with you. In the case of Mr. Ambra, from the first
conversations I had with him five years earlier, up until several days before the problems
were reported to the District Attorney, he would use phrases like "now Mike, I need your
advice on this." That simple lead-in would elicit an admonishment that I could not give
him attorney/client advice, and that any opinion offered was in my role as city attorney
and was neither confidential nor privileged. It is important to do this even though it is
cumbersome at times.
It is also vital to do so with other councilmembers who you trust would never try to assert
same. In this case, neither Am bra nor his attorney tried to exclude my testimony based
on attorney-client privilege. However, in the Concord case when the city manager sued
the City for constructive termination and sexual harassment, the then-Mayor tried to
assert the privilege to exclude my testimony of the eleven (II) hours of meetings I had
with him trying to curb his conduct. Had it only been my word against his, it may have
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been a tough call for a court to make given that the existence of the privilege is examined
from the "clients" point of view as to whether he or she thought the conversation was
privileged. However, every Councilmember I served with in that city was willing to step
forward and confirm that I issued these admonishments repetitively and with the slightest
provocation.
5.
Trials are traumatic.
Eight (8) City employees testified in the Ambra trial. At the close of the trial,
notwithstanding the result which essentially removed this person from office, we had a
number of employees who were traumatized. Employees who were potential witnesses
yet not called, had similar reactions. We retained the services of a psychiatrist from
Stanford University to counsel these employees and learned that, although not widely
recognized, people subjected to litigation who are personally threatened in some way,
often suffer symptoms of post-traumatic stress. We had symptoms ranging from
sleeplessness, distraction at work, marital problems, physical ailments and the like.
We also had to respond to questions about employee/witness rights from a legal
standpoint. Mr. Am bra was removed in April and the filing period for the city council
election opened in July. The pro-Ambra group ran a slate of three candidates for the
three four-year seats and one of the candidates was Ambra's wife. A close friend of
Ambra ran with that group and wanted to "rearrange" things at City Hall. Two of those
three candidates were on our planning commission. Employees feared for their jobs and
although they acknowledged their belief that the current City Manager and City Attorney
would protect the employees' jobs with their own, they were not so confident they would
survive if the City Manager and the City Attorney were fired4•
We therefore retained the services of a labor attorney who consulted with the employees
(at City expense) and who would serve as a lightning rod for concerns should these
employees be subject to any form of retaliation.
6. No witness prep in criminal cases.
This is perhaps an overstatement, but to add to the stress of a trial and with the entire
focus of the defense strategy on cross-examination, district attorneys do not like to
prepare witnesses. Therefore, none of the employees who testified had any idea what a
brutal cross-examination would be like. Criminal prosecutors are fearful of the question
posed to the witness on cross-examination "how many hours did you and the district
attorney spend preparing your testimony?" With the District Attorney's permission, I put
the City Manager through a 90-minute mock cross-examination on related but different
topics.
4
The pro-Ambra slate out-spent other candidates by as much as 100 -200% yet were resoundingly
defeated.
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7.
Consult with a criminal law specialist.
We were fortunate that our code enforcement prosecutions are performed by a former
member of the Santa Clara County District Attorney's Office who spent seventeen years
in that profession. His advice was invaluable as to how the process was unfolding and to
answer questions such as "why aren't they preparing the witnesses?" He helped keep us
safe, ethically, and helped us respond to public records requests for information that may
not have been subject to release because of the pendency of the civil proceedings and
potential criminal investigation.
8.
Watch your tongue.
Part of almost every defense in these matters will be what I refer to as the "DeLorean
defense" which is essentially "they got me on videotape with the drugs so I have to attack
the govenunent." Be careful what you say in casual conversations with other people
about an on-going investigation or the behavior of the councilmember, in general.
Consider, if you will, that if you had a conversation with the city manager acknowledging
your reluctance in reporting the councilmember to the district attorney because you were
concerned about the integrity of govenunent in your city, that discussion would play a lot
better than having been overheard saying, "yeah, we'll get that blankety-blank." In sum,
your words can and will be played back.
9. Consult with the District Attorney as to what you can say to employees that are
part of the investigation or trial.
This is obviously going to be different in every case and in some cases, employees'
testimony may be adversarial to the city, city management and/or the city council. In our
particular case, it was very important that the employees had someone they could talk to
about the stress of waiting, the fears of the unknown, etc. Our entire City's attorney staff
was available to the individual employees to come and talk if they felt the need to do so.
We kept the District Attorney's Office informed. These meetings would typically occur
en masse and because of the anxieties of the circumstances, could be set up without
checking anyone's calendar, within five minutes of one employee/witness requesting
same.
10. Avoid "team meetings."
Meetings with staff over the stress or fears, updates on trial scheduling, etc., are one
thing. Meetings which could be categorized as "team prep" meetings are quite another.
In our case I studiously avoided having the City Manager in these meetings because: (1)
the defense planned to attack him; and (2) due to the direct reporting relationship between
the City Manager and employees who were going to testify. We were concerned that
during cross-examination, one or more employees would be asked: "How many times
did you meet with the City Manager about the upcoming trial and/or testimony?" This
issue did come up during cross-examination and it was helpful to be able to respond that
employees had not met with the City Manager.
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11. Create a solid verbal record.
\\Then you do meet with employees and field questions about testimony, inconsistencies
or the like, take every opportunity to create a good verbal record. What I took great pains
to do was to explain to employees at every opportunity (almost as annoyingly as my "no
attorney-client privilege" admonishment) that their job was not to help one side or the
other, their job was to appear when they were told, to tell the truth, to tell only the truth
and have no fears about telling the truth. Employees heard this advice and admonishment
dozens of times in the months we waited for the matter to go to triaL
Likewise and similar to preparing a deponent, it is important to tell them to wait until the
question is asked; that they are not under an obligation to speculate; that they can say
they don't recall if indeed they do not recall; however, if they do recall they should
answer the question. We did as much as we could to alleviate their fears of saying the
wrong thing and to motivate them to relax and answer the questions. I have found this
invaluable when a witness is questioned about how much they are prepared for a
deposition or testimony by a city attorney or other lawyer. In response to a question in
that regard, they can always add in "and I was advised to tell the truth."
12.
Confer with the District Attorney relative to the proposed charges.
To the extent allowable, depending on the city attorney's prospect of being a potential
witness, consult with the District Attorney on what they plan to do with the case. In our
matter, there were clearly some misdeeds by the councilmember that could have been
charged as a crime. The Assistant District Attorney believed that because they were
misdemeanors, they would not have caused the councilmember to be removed from
office, the result desired by the District Attorney. Because they had not consulted with
us, they were unaware that our Charter provided that even a conviction of a misdemeanor
or infraction involving official duties would have created a vacancy in the office.
Furthermore, and perhaps more troubling, the district attorney declined to proceed
criminally because he thought the councilmember would merely offer to resign from
office as part of a plea agreement. They reasoned that if he was only facing civil charges
and potential removal rather than fines or jail time, that he would contest the matter and,
upon conviction, it would serve as a deterrent to other elected officials throughout the
County and Peninsula. They believed that this type of process every twenty years or so,
serves a purpose. As laudable a purpose as that may be, it comes at significant cost to the
participants.
13.
If PRA or 1090 are involved - get an expert.
When our case went to the grand jury, the potential remained that criminal charges may
be lodged. For that reason the grand jury proceeding is obviously lopsided in favor of the
prosecution, as the defense does not participate. It was therefore easy for the prosecution
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to prove, through the testimony of the city attorney, that there were violations of
Government Code Section 87100, et seq.
As the matter was prepared for trial, I was surprised to learn that the District Attorney did
not plan to have an expert on hand with regard to the Political Reform Act. I provided
him names and telephone numbers including past general counsels of the FPPC and the
current Chief Prosecutor of the FPPC. I also furnished copies of the statute and
regulation dealing with trusts.
Having never seen a copy of the trust, I was surprised when the PRA issues came up and
Counts I through 3 crashed and burned two days before trial. This eliminated three of
four counts against the councilmember. Had it not been for the pretrial ruling which
allowed evidence of those counts to be introduced as part of the misconduct, the case
would have been lost.
14.
Confidentiality and privilege of written materials.
Civil or criminal proceedings such as these will most likely gain access to privileged
and/or confidential documents- evaluations, pending litigation memos, etc., particularly
if the councilmember has saved them and turns them over to his attorney (or the press).
We learned about the defense's planned use of this only during impeachment of the
witnesses (cross�examination). Therefore, you may want to be prepared to move for a
protective order to prevent the wholesale dissemination of such memos, etc., particularly
portions which are unrelated to the testimony and memos which may involve ongoing
subjects where confidentiality is important. District attorneys work in a world of full
disclosure and may not be sensitive to the need for confidentiality in this context.
CONCLUSION
When formulating a presentation such as this one, it is always tempting to conclude that
these facts are so unique that any knowledge gained in the experience will be of limited
benefit. In the course of human events as it relates to politics at least, that is,
unfortunately, not true. It seems that no matter how much we contemplate proper
governance or try to expand the usc of the ethical compass, that a never�ending supply of
problematic behavior is just around the corner.
The most important and evolving challenge to date, however, remains the role of the city
attorney in ensuring the people are afforded an ethical government. It does not have to be
the best government, the most knowing government, nor the most creative or efficient. A
city attorney does not become the sixth or eighth councilmember. Nevertheless, the
constituents believe that we and our colleagues in the city manager profession play some
role and have some responsibility for ensuring that government is at least ethical and that
we will report wrongdoing. This, no doubt, is an evolving concept and will be our
challenge.
MDM/vcp 4/1/03
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Rules Prof Conduct (1995): Rule 3 -600. Organization as Client
Page 1 of2
THE STATE BAR OF CALIFORNIA
Rule 3-600. Organization as Client
(A) In representing an organization, a member shall conform his or her representation to
the concept that the client is the organization itself, acting through its highest authorized
officer, employee, body, or constituent overseeing the particular engagement.
(B) If a member acting on behalf of an organization knows that an actual or apparent
agent of the organization acts or intends or refuses to act in a manner that is or may be a
violation of law reasonably imputable to the organization, or in a manner which is likely
to result in substantial injury to the organization, the member shall not violate his or her
duty of protecting all confidential information as provided in Business and Professions
Code section 6068, subdivision (e). Subject to Business and Professions Code section
6068, subdivision (e), the member may take such actions as appear to the member to be
in the best lawful interest of the organization. Such actions may include among others:
(l) Urging reconsideration of the matter while explaining its likely consequences
to the organization; or
(2) Referring the matter to the next higher authority in the organization, including,
if warranted by the seriousness of the matter, referral to the highest internal
authority that can act on behalf of the organization.
(C) If, despite the member's actions in accordance with paragraph (B), the highest
authority that can act on behalf of the organization insists upon action or a refusal to act
that is a violation of law and is likely to result in substantial injury to the organization, the
member's response is limited to the member's right, and, where appropriate, duty to
resign in accordance with rule 3-700.
(D) In dealing with an organization's directors, officers, employees, members,
shareholders, or other constituents, a member shall explain the identity of the client for
whom the member acts, whenever it is or becomes apparent that the organization's
interests are or may become adverse to those of the constituent(s) with whom the member
is dealing. The member shall not mislead such a constituent into believing that the
constituent may communicate confidential information to the member in a way that will
not be used in the organization's interest if that is or becomes adverse to the constituent.
(E) A member representing an organization may also represent any of its directors,
officers, employees, members, shareholders, or other constituents, subject to the
provisions of rule 3-310. If the organization's consent to the dual representation is
required by rule 3 -310, the consent shall be given by an appropriate constituent of the
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Rules Prof Conduct (1995): Rule 3-600. Organization as Client
Page 2 of2
organization other than the individual or constituent who is to be represented, or by the
shareholder(s) or organization members.
Discussion:
Rule 3-600 is not intended to enmesh members in the intricacies of the entity and
aggregate theories of partnership.
Rule 3-600 is not intended to prohibit members from representing both an organization
and other parties connected with it, as for instance (as simply one example) in
establishing employee benefit packages for closely held corporations or professional
partnerships.
Rule 3-600 is not intended to create or to validate artificial distinctions between entities
and their officers, employees, or members, nor is it the purpose of the rule to deny the
existence or importance of such formal distinctions. In dealing with a close corporation or
small association, members commonly perform professional engagements for both the
organization and its major constituents. When a change in control occurs or is threatened,
members are faced with complex decisions involving personal and institutional
relationships and loyalties and have frequently had difficulty in perceiving their correct
duty. (See People ex rei Deukmejian v. Brown (1981) 29 Cal.3d 150 [ 172 Cal.Rptr. 478];
Goldstein v. Lees ( 1 975) 46 Cal.App.3d 614 [120 Cal.Rptr. 253]; Woods v. Superior
Court ( 1 983) 149 Cal.App.3d 931 [ 197 Cal.Rptr. 185];In re Banks ( 1978) 283 Ore. 459
[584 P.2d 284]; 1 A.L.R.4th 1 1 05.) In resolving such multiple relationships, members
must rely on case law.
http://www.calbar.orglpub250/9/s0026.htm
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RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER Page I of2
RULE 5.1 ABA MODEL RULES OF PROFESSIONAL CONDUCT
(a) A partner in a law firm shall make reasonable efforts to ensure that the fi rm has in
effect measures giving reasonable assurance that all lawyers in the firm conform to the
Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional
Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of
Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner in the law firm in which the other lawyer practices, or has
direct supervisory authority over the other lawyer, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take reasonable remedial
action.
Comment
Paragraphs (a) and (b) refer to lawyers who have supervisory authority over the
professional work of a fi rm or legal department of a government agency. This includes
members of a partnership and the shareholders in a law firm organized as a professional
corporation; lawyers having supervisory authority in the Jaw department of an enterprise
or government agency; and lawyers who have intermediate managerial responsibilities in
a firm.
The measures required to fulfill the responsibility prescribed in paragraphs (a) and (b)
can depend on the firm's structure and the nature of its practice. In a small firm, informal
supervision and occasional admonition ordinarily might be sufficient. In a large firm, or
in practice situations in which intensely difficult ethical problems frequently arise, more
elaborate procedures may be necessary. Some firms, for example, have a procedure
whereby junior lawyers can make confidential referral of ethical problems directly to a
designated senior partner or special committee. See Rule 5.2. Firms, whether large or
small, may also rely on continuing legal education in professional ethics. In any event,
the ethical atmosphere of a firm can influence the conduct of all its members and a
lawyer having authority over the work of another may not assume that the subordinate
lawyer will inevitably conform to the Rules.
Paragraph (c)(l ) expresses a general principle of responsibility for acts of another. See
also Rule 8.4(a).
-
14
-
RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER Page 2 of 2
Paragraph (c)(2) defines the duty of a lawyer having direct supervisory authority over
performance of specific legal work by another lawyer. Whether a lawyer has such
supervisory authority in particular circumstances is a question of fact. Partners of a
private firm have at least indirect responsibility for all work being done by the firm, while
a partner in charge of a particular matter ordinarily has direct authority over other firm
lawyers engaged in the matter. Appropriate remedial action by a partner would depend
on the immediacy of the partner's involvement and the seriousness of the misconduct.
The supervisor is required to intervene to prevent avoidable consequences of misconduct
if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer
knows that a subordinate misrepresented a matter to an opposing party in negotiation, the
supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
Professional misconduct by a lawyer under supervision could reveal a violation of
paragraph (b) on the part of the supervisory lawyer even though it does not entail a
violation of paragraph (c) because there was no direction, ratification or knowledge of the
violation.
Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the
conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or
criminally for another lawyer's conduct is a question oflaw beyond the scope of these
Rules.
Model Code Comparison
There was no direct counterpart to this Rule in the Model Code. DR 1-103{A) provided
that a lawyer "possessing unprivileged knowledge of a violation of DR 1-102 shall report
such knowledge to . . . authority empowered to investigate or act upon such violation."
LexisNexis
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Search- 23 Results- rule/1 1 . 1 3
Page 1 of 5
ORGANIZATION AS CLIENT
RULE 1.13 ABA MODEL RULES OF PROFESSIONAL CONDUCT
(a) A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the
organization, or a violation oflaw which reasonably might be imputed to the
organization, and is likely to result in substantial injury to the organization, the lawyer
shall proceed as is reasonably necessary in the best interest of the organization. In
determining how to proceed, the lawyer shall give due consideration to the seriousness of
the violation and its consequences, the scope and nature of the lawyer's representation,
the responsibility in the organization and the apparent motivation of the person involved,
the policies of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of the
organization and the risk of revealing information relating to the representation to persons
outside the organization. Such measures may include among others:
( I ) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to
appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted by
the seriousness of the matter, referral to the highest authority that can act in behalf of the
organization as determined by applicable law.
(c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority
that can act on behalf of the organization insists upon action, or a refusal to act, that is
clearly a violation of law and is likely to result in substantial injury to the organization,
the lawyer may resign in accordance with Rule 1 .16.
(d) In dealing with an organization's directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of the client when it
is apparent that the organization's interests are adverse to those of the constituents with
whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule
1 .7. If the organization's consent to the dual representation is required by Rule 1 .7, the
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Page 2 of5
consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
Comment
The Entity as the Client
An organizational client is a legal entity, but it cannot act except through its officers,
directors, employees, shareholders and other constituents.
Officers, directors, employees and shareholders are the constituents of the corporate
organizational client. The duties defined in this Comment apply equally to
unincorporated associations. "Other constituents" as used in this Comment means the
positions equivalent to officers, directors, employees and shareholders held by persons
acting for organizational clients that are not corporations.
When one of the constituents of an organizational client communicates with the
organization's lawyer in that person's organizational capacity, the communication is
protected by Rule 1.6. Thus, by way of example, if an organizational client requests its
lawyer to investigate allegations of wrongdoing, interviews made in the course of that
investigation between the lawyer and the client's employees or other constituents are
covered by Rule 1 .6. This does not mean, however, that constituents of an organizational
client are the clients of the lawyer. The lawyer may not disclose to such constituents
information relating to the representation except for disclosures explicitly or impliedly
authorized by the organizational client in order to carry out the representation or as
otherwise permitted by Rule 1.6.
When constituents of the organization make decisions for it, the decisions ordinarily must
be accepted by the lawyer even if their utility or prudence is doubtful. Decisions
concerning policy and operations, including ones entailing serious risk, are not as such in
the lawyer's province. However, different considerations arise when the lawyer knows
that the organization may be substantially injured by action of a constituent that is in
violation of law. In such a circumstance, it may be reasonably necessary for the lawyer
to ask the constituent to reconsider the matter. If that fails, or if the matter is of sufficient
seriousness and importance to the organization, it may be reasonably necessary for the
lawyer to take steps to have the matter reviewed by a higher authority in the organization.
Clear justification should exist for seeking review over the head of the constituent
normally responsible for it. The stated policy of the organization may define
circumstances and prescribe channels for such review, and a lawyer should encourage the
formulation of such a policy. Even in the absence of organization policy, however, the
lawyer may have an obligation to refer a matter to higher authority, depending on the
seriousness of the matter and whether the constituent in question has apparent motives to
act at variance with the organization's interest. Review by the chief executive officer or
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P age3 of5
b y theb oard of di rec tors may b e req ui red when the matteri s of i mportanc e
c ommen surate with thei r authori ty. A t some poi nti t mayb e useful or essential to ob tai n
an i ndependent legal opini on.
I n an ex tremec ase, i t may b e reasonab ly nec essary for the lawyer to refer the matter to
the organiz ati on' s hi ghest author ity. O rdi narily, that i s theb oard of direc tors or si mi lar
governin g b ody. H owever, applic ab le law may presc rib e that un derc ertai n c on ditions
hi ghest authori ty reposes elsewhere; for ex ample, in thei ndependent direc tors of a
c or porati on.
Relation to Other Rules
T he authori ty an d responsibi li ty provi dedi n paragraph (b) are c onc urr ent wi th the
authority an d responsib ility provi ded in ot herR ules. I n partic ular, thi sR ule does not
li mit or expand the lawyer' s responsibi li ty under R ule 1 .6, 1 . 8, 1 .16, 3.3 or 4 .1 . If the
lawyer' s servic es are b eing usedb y an organizati on tofurt her a cri me or fraudb y the
organiz ati on, R ule 1 .2( d) ca nb e applic ab le.
Government Agency
T he duty defi nedi n thi s R ule appli es to governmental organiz ati on s. H owever, when t he
c li ent i s a govenun ental organiz ati on, a di fferent b alanc e mayb e appr opriateb etween
mai ntai ningc onfiden ti alit y and assuri ng that the wrongful offici al ac t i s prevented or
rec tifi ed, for pub lic b usin ess i s i nvolved. I n addi ti on, duti es of l awyers employedb y the
government or lawyersi n military servic e mayb e defi nedb y statutes an d regulati on.
T herefore, defi ning preci sely the identi ty of thec li ent an d prescrib ing the resulting
ob li gati ons of suc h lawyers mayb e more diffic ult in the govenunentc on tex t.A lthough
in somec irc umstanc es thec li ent mayb e a specific agenc y, i t is gen erally the govern ment
as a whole. F or ex ample, if the ac tion or failure to ac t i nvolves the head of ab ureau,
ei ther the department of whic h the b ureau i s a par t or the govenunent as a whole mayb e
the c lient for pur pose of thi sR ule. M oreover, in a matter involvi ng the c on duc t of
govern ment offici als, a government lawyer may have authori ty toq uestion suc h c on duc t
more ex tensi vely than that of a lawyer for a pri vate organiz ati on i n simi lar ci rc umstanc es.
T hi s R ule does not limi t that authori ty. S ee note on Sc ope.
ClarifYing the Lawyer's Role
T here are times when the organiz ati on' s i nterest mayb e orb ec ome adverse to those of
on e or more ofi ts c onsti tuents. In suc hci rc umstances the lawyer should advi se any
c onsti tuen t, whose i nterest the lawyer fi nds adverse to that of the organizati on of the
c onflic t or potentialc onflic t of in terest, that the lawyerc ann ot represen t suc hc onsti tuen t,
and that suc h person may wi sh to ob tai n i ndependent representati on. C are mustb e tak en
to assure that the i ndi vi dual understands that, whent here i s suc h adversi ty of interest, the
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Page 4 of5
l awyer fo r the o rganization can no t pro vide legal representation fo r that con stituent
in dividual, and that discussio nsb etween the lawyer fo r theo rganizatio n and the
individual may no tb e privileged.
W hether such a warning sho uldb e given b y the lawyer fo r theo rganizatio n to any
con stituen t in dividual may turn on the factsof eachcase.
Dual Representation
Paragraph( e) reco gn izes that a lawyer fo r an o rganization may also represen t a principal
officero r majo r shareho lder.
Derivative Actions
U nder gen erally prevail ing law, the shareho lders o r memb erso f aco rpo ration mayb ring
suit to co mpel the directors to perfon n their legal ob ligation s in the supervisio n of the
o rganization. M emb ers o f uninco rpo rated associatio ns have essentially the same right.
S uch an action may b e b ro ught no minallyb y theo rganization, b ut usually is, in fact, a
legalcon tro versy o ver managemen tof theo rgan ization.
T heq uestion can arise whetherco un sel fo r theo rgan izatio n may defend such an actio n.
T he pro po sitio n that theorganization is the lawyer' sclient do es no t alo n ereso lve the
issue. Mo st derivative action s are ano rmal inciden t of an o rgan ization' s affairs, to b e
defended b y the o rgan ization' s lawyer lik e an yother suit. Ho wever, if theclaim in vo lves
serio uschargeso f wro ngdo in gb y tho se in con tro l of the o rgan izatio n, aco nflict may
arise b etween the lawyer' s duty to theo rgan ization and the lawyer' s relation ship with the
bo ard. I n tho secircumstances, R ule 1 . 7 go vern s who sho uld represen t the directors an d
theo rganizatio n.
Mo delCo de Co mparison
T here was no co unterpart to thisR ule in theD isciplin ary R ulesof theMo delCo de. EC
5 -1 8 stated that a "lawyer emplo yedo r retainedb y a corpo ratio n o r similar entity o wes
his allegiance to the entity an d no t to a stock ho lder, directo r, o fficer, emplo yee,
representative, o ro ther person con nected with the en tity.In advising the entity, a lawyer
sho uldk eep paramo unt its interests and his pro fession alj udgmen t sho uldno tb e
influencedb y the perso nal desires of an y person o ro rganization . Occasion ally, a lawyer
fo r an entity is req uestedb y a stock ho lder, director, officer, emplo yee, representative, or
o ther person con nected with the entity to represent him in an individualcapacity; in such
case the lawyer may serve the individual-only if the lawyer iscon vinced that differin g
interests are no t present." EC 5-24 stated that alt ho ugh a lawyer "mayb e emplo yedb y a
b usinesscor po ratio n withnon -lawyers servingas directo rso ro fficers, an d they
necessarily have the right to mak e decisio ns ofb usiness po licy, a lawyer must decline to
accept directio n of his pro fession al judgm ent fro m an y layman." DR 5 -107( 8) pro vided
-1 9-
Page 5 of5
that a lawyer "shall not permit a person who ... employs ... him torender legal services
for another to direct or regulate his professional judgment in rendering such legal
services."
Soun;c:
l&wli> Secondary legale> An1ctican Aar Association (ABAl >ABA Codes. Constitution and Orinions> ABA Codes & Ethocs
Opimons Combined
Tenns.
Viev,:
Date/Time.
rule 11 1. 13 (hhtS!:archl
Full
Fr1day, October 4, 2002- 3·08 PM EDT
Abgut l&"sNe,isiTerms and Cnndiltons
Cop�right <C 2002 Lexisl\e,is, a di•·ision of Reed Elscvtcr Inc All rights reserved
http://www.lexis. com/research/retrieve?_m=bfebf25d098e34e5 7692069d9b9d7 48c& brow.
_
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I 0/2/2002
CONFIDENTIALITY OF INFORMATION
RULE
Page 1 o f5
1.6 ABA MODEL RULES OF PROFESSIONAL CONDUCT
( a) A lawyer shallno t rev eal info rm atio n rel atin g to represent atio n o f a clientu nless the
client con sents aft er co nsult atio n, ex cept fo r disclo su res t hat are im pliedly au tho riz ed in
o rder to carr y ou t the representatio n, and ex cept as st at ed in paragr aph (b) .
(b) A lawyerm ay rev eal su ch in form atio n to the ext ent the lawyer reaso nab ly b eliev es
necessary:
( 1 ) to prev ent the client from comm itting a crim inal act thatt he lawyerb eliev es is lik ely
to resu lt in imm inent deat h o r sub stanti albo di ly harm; o r
(2) to est ab lish a claim o r defenseo nb ehalf o f the lawyer in a con trov ersy b etween the
lawyer an d the client, to est ab lish a defen seto a crim inal chargeo r civ il claim againstt he
lawyerb asedu po n co ndu ct in whicht he client was invo lv ed, o r to respo nd to al legat ion s
in an y pro ceeding co ncern in g the lawyer' s represent at io n o f the client.
Comm ent
T he lawyer is parto f aj udicial system charged withu pho lding the law.O neo ft he
lawyer' s fu nctio ns is to adv ise clients so t hat they avo id anyv io lation o f the law in the
pro per ex ercise o f their rights.
T heob serv ance o ft he et hical ob ligat io no f a lawyerto ho ld inv io late co nfi dential
in fo rm at io n o ft he client no to nly facilitates the full dev elo pm ent o f facts essential to
pro per representatio n o f the clien tb ut also encou rages peo ple to seek early legal
assistance.
A lmo st wit hou t ex ceptio n, clients com e to lawyers in o rder to determ ine what their rights
arc and what is, in the m az eo f laws an d regulat io ns, deem ed to b e legal an d co rrect.T he
common law reco gniz es that the clien t' s co nfi den cesm ust b e pro tectedfrom disclo su re.
B asedu po n ex perience, lawyersk no w that almo st all clients fo llo w the adv ice giv en, and
the law is upheld.
A fu ndam ental prin ciple in the client- lawyer relat io nship is that the lawyer m ain tain
co nfi dentiality o f in fo rm at io n relat ingto the represen tation .T he client is thereb y
en cou raged to commu nicate fu lly and frank ly with the lawyer ev en as to emb arr assingo r
l egally dam agin g subj ect m atter.
T he prin cipleo f co nfi dent iality is giv en effect in two relat edbo dies o f law, the
attorn ey-client priv ilege ( which inclu dest he wo rk pro duct do ctrine) in the lawo f
ev iden ce and the ru leo f co nfi dentiality est ab lished in pro fessio nal ethics. T he
attorn ey- client priv ilege applies inju dicial ando ther pro ceedin gs in which a l awyerm ay
b e called as a witness o ro thenv ise req uiredto pro du ce ev idence con cern in g a clien t. T he
-21 -
Page 2 of5
ru le o fc lie nt� law ye r co nfi de nti ali ty app li e s i n si tuatio nso the r than tho se w he re e vide nce
i s so ught from the law ye r thro ughco mp ulsio nof law.T he co nfi de ntiali ty rule app lie s no t
me re ly to m atte rs comm unicate di nco nfi de nce b y the c li entb ut also to all i nfo rm atio n
re lati ng to the rep re se ntatio n, w hate ve r its so urce.A law ye r may no t di sc lo se suc h
i nfo rmatio n excep t as autho rize do r req ui re db y the R ule so f Profe ssio nalCo nduc to r
o the r law. See also Scope.
T he req ui re me nt of maintai ni ngco nfi de nti ali ty o f info rm atio n re lati ng to rep re se ntatio n
app li e s to go vernme nt law ye rsw ho may di sagree with the po lic y go als that thei r
rep re se ntatio n i s de signe d to advance.
Authorized Disclosure
A law ye r i s imp lie dly autho rize d to make di sc lo sure s abo ut a c lie ntw he n app rop riate i n
c arryi ngo ut the rep re se ntatio n, excep t to t he ex te nt that the c li ent' s i nstruc tio nso r speci al
ci rc um stance s li mi t that autho rity. In litigatio n, fo r ex amp le, a law ye r m ay di sc lo sure
i nfo rm atio nb y adm itti ng a fac t thatc anno tp rope rly be di sp ute d, o ri n ne go ti atio nb y
maki ng a di sc lo sure that faci li tate s a sati sfac to ry co nc lusio n.
L aw ye rs i n afinn may, i n the course of the fi rm' sp rac tice, disc lo se to e ac ho the r
i nfo rm atio n re lati ng to ac liento f the fi rm, unle ss the c lie nt has i nstruc te d thatp arti c ular
info rm atio n be co nfi ne d to specifie d law ye rs.
Disclosure Adverse to Client
T he co nfi de ntiali ty rule is subjec t to li mite dexcep tio ns. I nbeco mi ngp ri vy to i nfo rm atio n
abo ut ac li ent, a law ye r may fo re see that the c li e nti nte nds se rio us harm to ano the r
pe rso n.Howe ve r, to the ex te nt a l aw ye ri s req uire do rpermitte d to di sc lo se ac li ent' s
p urpo se s, the c lientwillbe i nhibi te d from re ve ali ng f ac tsw hic hwo ulde n able the law ye r
to counse l agai nst aw ro ngfulco urse o f ac tio n. T he p ub li c isbe tte r p ro tec te d if full and
ope n com munic atio n b y the c li e nt is e nco urage d than if i t i s i nhib ite d.
Se ve ral si tuatio nsm ustbe disti ngui she d.
First, the law ye rm ay no t co unse lo r assi st ac lie nt inco nduc t that i sc rimi nalo r
fraudule nt. See R ule 1 .2 ( d) .Si milarly, a law ye r has a duty unde rR ule 3 .
3( a)(4) no t to use
false e vide nce. T hi s duty i s e sse nti ally a speciali nstance o f the dutyp re sc r b
i e di nR ule
1 .2( d) to avo id assi sting ac lie nt i n c rimi nal o r fraudule ntco nduc t.
Seco nd, the law ye r may have been i nnoce ntlyi nvo lve di n p astconduc tb y the c li ent that
w asc ri minalo r fraudule nt. In suc h a si tuatio n the law ye r has no t vio late dR ule 1.2( d),
bec ause to "co unse lo r assi st" crimi nalo r fraudule nt co nduc t req ui re sk now ing that the
conduc t i s of that c harac te r.
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Page 3 of 5
T hird, t he lawyerm ay learn t hat a client int ends prospectiv e conduct that is crim inal and
lik ely t o result in imm inent deat h or sub st ant ialb odily han n.A s st at ed in paragr aph
(b)( 1 ), the lawyer has professional discret iont o rev eal inf orm at ion in ordert o prev ent
such conseq uences. T he lawyerm ay m ak e a disclosure in order to prev ent hom icide or
serious b odily inj ury whicht he lawyerreasonab leb eliev es is intendedb y a client. It is
v ery diffi cult for a lawyert o "k now" when such a heinous purp ose will act uallyb e
carr ied out, fort he client m ay hav e a change ofm ind.
T he lawyer' s ex ercise of discret ion req uires considerat ion of such fact ors as t he nat ure of
t he lawyer' s relat ionship wit ht he client and wit h those whom ightb e inj uredb y t he
client, t he lawyer' s own inv olv em ent int het ransact ion and fact orst hat m ay ext enuat e t he
conduct in q uest ion. W here practical, t he lawyer should seek t o persuade t he client t o
t ak e suitab le act ion.I n any case, a discl osure adv erse tot he client' s int erest shouldb e no
great er t han t he lawyer reasonab lyb eliev es necessary to the purpose. A lawyer' s decision
not t ot ak e prev ent iv e act ion perm ittedb y paragr aph (b)( 1) does not v iolat e this R ule.
Withdrawal
I f t he lawyer' s serv ices willb e used b y t he client inm at erially furthering a course of
crim inal or fraudulent conduct, t he lawyerm ust wit hdraw, as st at ed in R ule 1 . 16( a)( 1) .
Aft er wit hdrawalt he lawyer is req uiredt orefrain from m ak ing disclosure of t he cli ent s'
confi dences, ex cept as ot her wise prov ided inRule 1.6. N eit herthis rule norR ule l . S(b)
norR ule 1 . 16( d) prev ent s the lawyer from giv ing not ice of the fact of wit hdrawal, andt he
lawyerm ay also wit hdraw or disaffi rm any opinion, docum ent, affi rm at ion, ort he lik e.
W heret he client is an organiz at ion, t he lawyerm ayb e in doubt whether cont em plat ed
conduct will actually b e car ried outb yt he organiz at ion. W here necessary t o guide
conduct in connect ion wit h this R ule, t he lawyerm aym ak e inq uiry wit hint he
organiz at ion as indicat ed in R ule 1 .13(b).
Dispute Concerning a Lawyer's Conduct
W here a legal claim or disciplinary charge alleges com plicit y of t he lawyer in a client' s
conduct or ot herm isconduct of t he lawyer inv olv ing represent at ion of t he client, t he
lawyerm ay respondt o the ext ent t he lawyer reasonab lyb eliev es necessary t o est ab lish a
defense.T he sam e is t rue wit h respectt o a claim inv olv ingt he conduct orrepresentat ion
of a form er client.T he lawyer' s right t o respond arises when an assertion of such
com plicit y has b een m ade. Paragr aph (b)(2) does not req uire the lawyer to await t he
comm encem ent of an act ion or proceeding t hat charges such com plicit y, sot hat t he
defense m ay b e est ab lishedb y responding direct ly to at hird part y who hasm ade such an
assert ion. T he right t o defend, of course, applies where a proceeding hasb een
comm enced.W here pract icab le and not prej udicialt ot he lawyer' s ab ility t o est ab lish the
defense, the lawyer should adv iset he client of t het hird part y' s assert ion and req uest t hat
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t he cli e nt re sponda ppropriate ly. I n a nye ve nt, di sclosure shouldbe nog reate rt ha nt he
la wye r rea sonab lybe lie ve s is ne ce ssa ry to vin di cate i nn ocen ce, the disclosure shouldbe
ma de i n a ma nne r whi ch limi ts a cce ss tot he informati on to the t rib una l or ot he r pe rsons
ha vi ng a nee d tok now it, a nda ppr opriate prote cti ve or der s or ot her arra nge me nt s should
be soug htb y the la wye r to the fulle st exte nt pra cti cab le.
If t he la wye r i s cha rge d wit h wr ong doi ng i n whi cht he client' s con duct i s impli ca te d, the
rule of confi de ntia li ty shouldn ot pre ve nt t he la wyer from defe nding agai nst t he cha rge.
S uch a charge ca n ari se i n a ci vi l, cri mi na l or profe ssi ona l di sciplinary pr ocee di ng, a nd
ca nbe ba se d on a wr ong a llege dly commit te db y t he la wyer again st the clie nt, or on a
wr ong a lleged b y a t hi rd pe rson; f or exa mple, a pe rson clai ming t o ha ve been defra ude d
b y t he la wye ra nd cli e nt a cting t oget her. A la wye r e ntit le dt oa fee i s pe rmitte db y
pa rag ra ph(b)(2) t o pr ove t he se rvi ce s ren de re di na na ct ion to colle ct it. T hi s a spe ct of
the rule ex pre sse s t he pr inciple t ha tt he be nefi ciar y of a fi ducia ry re la ti onshi p ma y not
ex ploit it to the det ri me nt of the fi ducia ry.A s state dab ove, t he la wye r must make e ve ry
effort pra ct icab le t o a void un ne ce ssa ry di sclosure of i nfor mati on re lati ng toa
re pre se ntati on, t o limit di sclosure t ot hose ha vi ng t he nee dt oknow i t, a nd to obtain
prote ct ive or der s or make other ar ra nge me nt s mi ni mizi ng t he risk of di sclosure.
Disclosures Otherwise Required or Authorized
T he att orne y-client pri vi lege i s dif fe re ntl y defi ne din va ri ousj uri sdict ion s. If a la wye r i s
ca l e da sa wit ne sst ogi ve te sti mon y concerning a clien t, ab se nt wai ve rb yt he clie nt,
paragraph(a) req ui re s the la wye r t oin voke t he privi lege whe n it i sa pplicab le .T he
la wyer must comply wit ht he fi nal order s of a court or other tr ib una l of competent
j ur isdi cti on req ui ring t he la wyer t og ive in format ionab out t he cli e nt.
T he R ule s of Profe ssi ona l C onduct in vari ous ci rcumstance s per mit or req uire a la wye r t o
di sclose i nfor mati on re lating t ot he re pre senta ti on .See R ule s 2 2
. , 2.3, 3.3 an d4 . 1 . I n
a ddit ion t ot he se provisi ons, a la wye r ma ybe ob ligate d or permitte db y ot he r provi sions
of la w tog ive i nfor mat ion about a clie nt. W hethe r an ot her provisi on of la w supe rse de s
Rule 1.6 i s a matter of in ter pretat ionbeyon dt he scope of t he se R ule s, b ut a pre sumpti on
shouldex ist aga inst sucha supe rse ssi on.
Former Client
T he dut y of confi de ntia lit y conti nue s afte r t he clie nt-la wye r re lati onshi p ha s te rmi nated.
M ode l C odeC ompa ri son
Rule 1.6 e li minate s t he two-pronge d dut y un der t he M ode lC ode in fa vor of a sing le
sta ndar d pr ote cti ng a ll i nfor mat ionabout a cli e nt "re lat ing t ore pre se ntati on." U nde rDR
4 -1 0 1 , the req ui re ment a pplie d to i nforma ti on prote cte db y t he at torne y-cli ent pri vi lege
a ndt o i nforma ti on "gai ne d in" t he pr ofe ssiona l re lati on shi p that "the clie nt ha s req ue ste d
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b e held i nvi olat e or t he dis cl os ure of w hi chw ou ldb e emb arrassin g or w ouldb e lik ely to
b e detri ment al to the cli ent." EC 4 -4 addedt hat the dut y differ edfr omt he ev identi ar y
privi lege i n t hat ti existed "without r egar dt ot hen at ur e or s ource of in for mati on ort he
fact t hat ot hers s har e thek now ledge. " Rule 1.6 impos es confi dent ialit y on i nformat ion
r elati ngt ot herepres ent at ion ev en if i t is acq uiredb efor e or aft ert her elat ions hi p exist ed.
I t does not r eq uir e the cli ent t o indicat e infor mat ion that is tob e confi denti al, or per mi t
t he law yer t os peculate w het her parti cular informati on mi ght b e emb arr assin g or
detri ment al.
Par agr aph ( a) permits a law yer t o dis clos ei nf or mati onw here impli edly aut horized to do
s o i n or der t o carry out therepres ent ati on .Un der DR 4-1 O l(B) and(C), a law yer w as n ot
permi t edt or ev eal " confi den ces " unless t he clien tfirst cons ent ed aft er dis closur e.
P ar agr aph (b) r edefin es the ex cept ions t ot hereq uir ement of confi dentialit y. R egar di ng
par agr aph(b)(l), DR 4 -I OI (C)(3) provi dedt hat a law yer " may rev eal [t]heint enti on of
his cli ent to commit a cr ime and theinfor mati on n ecess ar y t o prev entt he cri me." T his
opti on exist edr egar dless oft he s eri ousn ess oft he propos ed cri me.
W it h r egar d to paragr aph (b)(2), DR 4 -IOI(C)(4) provi dedt hat a law yer may r ev eal
"[ c] onfi dences ors ecrets necess ar yt o es tab lis h or collect his fee or t o defen d hims elf or
his employers or ass ociat es agai ns t an accus at ion of wron gf ul conduct." Par agraph (b)(2)
en lar ges t he ex cepti ont o include dis clos ur e of infor mat ion r elatin g t o clai ms b y t he
law yer ot her t han f or t he law yer's f ee; for ex ample, r ecov ery of propert y fr omt he client.
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RULE 1.6 n8 ABA MODEL RULES OF PROFESSIONAL CONDUCT (2002)
n8 Amen de dFebruary 5 th, 2002, Americ an B arA ssoci ation Ho use ofDe leg ate s,
Philade lphi a, Pen nsylvania, per Report No. 40 1 .
( a) A lawye r shallno t re ve ali nfor matio n re lating to the repre sen tatio n of a c li ent unle ss
the c lie nt gi ve sinfonne dco nse nt, the di sclo su re i s imp lie dly authorize d inorder to c arry
o ut the repre se ntation or the di sc lo sure i s pe rmitte db yp arag rap h(b).
(b) A l awye rm ay re ve al i nfo rm atio n re lating to the re pre se ntatio n of ac lien t to the ex ten t
the lawye r re aso nab lybe lie ve snece ssar y:
( 1) to pre ve nt re ason ab ly ce rtai n de athor sub stantialbo dily harm;
(2) to sec ure leg al advice abo ut the lawye r' s comp li ance with the se R ule s;
(3) to e stab li sh ac laim or defen se on be half of the lawyer in acontro versy be twee n
the lawye r and the c lien t, to e stab li sh a defen se to acrimi nalc harge or ci vilc laim
ag ai nst the lawye rb ase d upo n con duc ti n whic h the c lien t was invo lve d, o r to re spon d
to alleg atio ns in any procee ding concerni ng the lawye r' s rep re sen tatio n of the c li e nt;
or
(4) to comp ly wi th o ther law or aco urt o rder.
Comment
[ 1 ] T hi s R ule go verns the disc lo sure b y a lawye r of i nform atio n re lating to the
repre se ntatio n of ac lien t during the lawyer' s re pre se ntatio n of the c lien t.See R ule 1 .18
for the lawye r' s duti e s with re spec t to infor matio n pro vi de d to the lawye r b y a
pro spec ti ve c lien t, R ule 1 .9(c)(2) fo r the lawye r' s duty no t to re ve ali nfo rmatio n re lati ng
to the l awyer' s prio r re pre se ntatio n of a fo rme rc lie nt an dR ule s 1 . 8(b) and 1 .
9(c)( l) fo r
the lawye r' s duti e s wi th re spec t to the use of suc h inform ation to the di sadvantage of
c lients and forme r c lien ts.
[2] A fundame ntalpri nc iple in the c lien t-l awye r re latio nship i s that, i n the ab se nce o f the
c li ent' s info rme dcon se nt, the lawye r m ust no t re ve al i nfo rm atio n re lati ng to the
re pre se ntation. See R ule 1.0(e) fo r the defi ni tio n ofi nfo rme dco nsen t.T his contrib ute s to
the trust that i s the hallm ark of the c li e nt-lawye r re latio nship. T he c li ent is the reb y
e ncou rage d to seek leg al as sistance an d to comm unic ate full y andfrank ly with the lawye r
e ve n as to emb arrassi ng or leg ally dam agi ng subjec tm atte r. T he lawye r nee ds thi s
i nfo rm atio n to re pre se nt the c li e nt effec ti ve ly and, if necessary, to advi se the c li e nt to
refrai n from wro ng fulco nduc t. A lmo st witho ut excep tio n, c lien ts come to lawyer s in
order to de termi ne their rig hts and what is, i n the comp lex of l aws and reg ulatio ns,
deeme d to be leg al andcorrec t. B ase d upon ex pe rie nce, lawyersk no w that almo st
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Page 2 of5
all clie nts fol low the adv ice give n, and the law isu phe ld.
[3] T he principle of cli e nt-lawye r confi de ntial ity is giv en effectby relatedb odie s afl aw:
the attorney-clie nt priv ile ge, the work produ ct doctrine and the rule of confi de ntial ity
e stabl ishe d in profe ssional e thics. T he attorney- clie nt priv ile ge and work- produ ct
doctrine apply inju dici al and othe r procee dings in whi ch a lawye r may be call e d as a
witne ss or othe rwi se req ui re d to produ ce ev ide nce concern ing a clie nt.T he ru le of
clie nt-l awye r confi de ntiality appli e s i n situ ations othe r than those whe re evide nce is
sou ght from the lawye r throu gh compu lsion of law. T he confi de ntiality rule, forex ample,
applie s not only to matte rs commu ni cate d in confi de nce by the cl ie ntbu t also to all
i nformati on re lati ng to the re pre se ntation, whateve r i ts source .A lawye r may not disclose
su ch infor mation ex ce ptas authorize d or requ ire dby the Ru le s ofProfe ssi onalC onduct
or othe r l aw. See also S cope.
[4] P aragraph ( a) prohib its al awye r from reve aling information rel ating to the
re pre se ntation of a clie nt. T his prohib ition also applie s to di scl osure sby a lawye r that do
not in the mselve s reve al prote cte di nformati onb u t coul d re asonably le ad to the discove ry
of su ch informationby a third pe rson.A lawye r' s u se of a hy pothe tical to discuss issue s
rel ating to the re pre se ntation i s per missib le so long as the re i s no re asonab le like lihood
that the liste ne r willbe able to asce rtain the ide nti ty of the cl ie nt or the situ ation inv olve d.
Authorized Disclosure
[5] Ex ce pt to the ex te nt that the client' s instru ctions or spe cial circu mstance s limi t that
authority, a l awye r is impl ie dly authorize d to make disclosu re s ab ou t a cl ie nt whe n
appropri ate in carry ing ou t the re pre se ntation. I n some situations, forex ample, a lawye r
may be impl ie dly au thorize d to admit a fact that cannot prope rly be di spu te d or to make a
di sclosu re that facilitate s a satisfactory conclusion to a matte r. L awye rsi n a finn may, in
the cou rse of the fir m' s practice, discl ose toe ach othe r information re lating to a clie nt of
the fi rm, u nle ss the cl ie nt has instructe d that parti cul ar information be confi ne d to
spe cifie d l awye rs.
Disclosure Adverse to Client
[6] A lthou gh the pub lici nte re st is usu ally be st se rve dby a strict rule requ iring l awye rs to
pre se rve the confi de ntiality of information re lating to the re pre se ntation of the ir cl ie nts,
the confi de ntiality rule is subje ct to li mi te dex ce pti ons. Paragraph(b)( l) re cognize s the
ove rridi ngv alue ofl ife and phy sicali nte grity and per mits disclosu re re asonably
ne ce ssary to preve nt re asonab ly ce rtain de ath or sub stanti al b odily harm. Su ch harmi s
re asonably ce rtai n to occur if it will be suffe re d immine ntl y or if the re is a pre se nt and
sub stantial thre at that a pe rson will suffe r su ch harm at al ate r date if the l awye r fail s to
take action ne ce ssary toe liminate the thre at. T hu s, a lawye r whok nows that a clie nt has
acci de ntally discharge d tox ic waste into a town' s wate r su pply may reve al this
information to the authoritie s i f the re is a pre se nt and sub stantial risk that a pe rson who
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drinks the water will contract a life-threatening or debilitating disease and the lawyer's
disclosure is necessary to eliminate the threat or reduce the number of victims.
[7] A lawyer's confidentiality obligations do not preclude a lawyer from securing
confidential legal advice about the lawyer's personal responsibility to comply with these
Rules. In most situations, disclosing information to secure such advice will be impliedly
authorized for the lawyer to carry out the representation. Even when the disclosure is not
impliedly authorized, paragraph (b){2) permits such disclosure because of the importance
of a lawyer's compliance with the Rules of Professional Conduct.
[8] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a
client's conduct or other misconduct of the lawyer involving representation of the client,
the lawyer may respond to the extent the lawyer reasonably believes necessary to
establish a defense. The same is true with respect to a claim involving the conduct or
representation of a former client. Such a charge can arise in a civil, criminal, disciplinary
or other proceeding and can be based on a wrong allegedly committed by the lawyer
against the client or on a wrong alleged by a third person, for example, a person claiming
to have been defrauded by the lawyer and client acting together. The lawyer's right to
respond arises when an assertion of such complicity has been made. Paragraph (b)(3)
does not require the lawyer to await the commencement of an action or proceeding that
charges such complicity, so that the defense may be established by responding directly to
a third party who has made such an assertion. The right to defend also applies, of course,
where a proceeding has been commenced.
[9] A lawyer entitled to a fee is permitted by paragraph (b)(3) to prove the services
rendered in an action to collect it. This aspect of the rule expresses the principle that the
beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.
[10] Other law may require that a lawyer disclose information about a client. Whether
such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules.
When disclosure of information relating to the representation appears to be required by
other law, the lawyer must discuss the matter with the client to the extent-required by
Rule 1 .4. If, however, the other law supersedes this Rule and requires disclosure,
paragraph (b)(4) permits the lawyer to make such disclosures as are necessary to comply
with the law
[ 1 1 ] A lawyer may be ordered to reveal information relating to the representation of a
client by a court or by another tribunal or governmental entity claiming authority
pursuant to other law to compel the disclosure. Absent informed consent of the client to
do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that
the order is not authorized by other law or that the information sought is protected against
disclosure by the attorney-client privilege or other applicable law. In the event of an
adverse ruling, the lawyer must consult with the client about the possibility of appeal to
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the ex te nt req uire db y R ule 1.4. U nless revie w is sou ght, ho we ver, pa ra graph(b)(4)
perm its the la wyer to co mply with the co urt's or der.
[ 1 2] Pa ra gra ph (b) pe rmits disc losu re o nly to the ex ten t the la wye r reasonab ly belie ves
the disc los ure is necessary to acco mplis ho ne o f the purposes s pecifie d. W he re
prac ti cab le, the la wyer s ho uld fi rs tseek to pe rs ua de the c lien t to take s uitab le actio n to
ob via te the nee dfor disc los ure.Tn a nycase, a disc los ure a dve rse to the c lien t's in teres t
s houldbe no grea te r than the la wye r reasonab lyb e li e ves necessa ry to acco mplis h the
pur pose. I f the disc los ure willbe ma de i n con nec tio n with a judic ia l procee din g, the
disc los ure s ho ul dbe ma de in a ma nner tha t li mi ts access to the in for ma tio n to the trib una l
o ro the r pe rso ns ha vin g a nee d to k no w it a nda ppro pria te protec ti ve or ders or o ther
a rrange men ts s ho uldbe so ughtb y the la wye rto the fu lles t ex te nt prac ticab le.
[ 1 3 ] Pa ra gra ph (b) pe rmits b ut does no t req ui re the disc los ure of infor ma tion re la ting to a
c li ent's re presen ta tio n to acco mpl is h the pur poses s pecifie d in pa ra gra phs (b)( l) thro ugh
(b)(4). In exe rc is ing the disc re tio n confe rre db y this R ule, the la wye r ma y co nsi de rs uc h
fac to rs as the na ture o f the la wye r's re la tionship with the cl ie nt a nd wi th those who might
be inj ure db y the c lien t, the la wye r's o wn invo lve men t in the transac tio n a nd fac to rs tha t
ma y ex te nua te the conduc t in q ues tion. A la wye r's dec is ion no t to disc lose as pe rmi tte d
b y pa ra gra ph (b) does no t vio la te this R ule . D isc losure ma y be req uire d, ho we ve r, b y
o the r R ules. So me R ules req ui re disc losu re only if s uc h disc lo sure wo uldbe pe rmitte db y
pa ra gra ph (b). See R ules 1 .
2( d), 4. l(b), 8 . 1 an d8 . 3 . Ru le 3.3, o nt he o the r ha nd, req ui res
disc lo s ure in so me c irc ums ta nces re ga rdless of whe the rs uc h disc losure is pe rmitte db y
this R ule. See R ule 3.3(c) .
Withdrawal
[14] I f the la wye r's se rvices willbe use db y the c lien t i n ma ter ia lly fur the ringa co urse of
c rimina l o rfra udule nt conduc t, the la wyer mus t withdra w, as s ta te d in R ule 1 . 1 6(a)( l)
After withdra wa lt he la wyer is req uire d to re fra in fro m mak ing disc los ure of the c li e nt's
co nfi de nces, exce pt as o therw ise pe rmi tte db y Ru le 1 . 6 . Nei the r this R ule no r Ru le 1 . 8(b)
no r R ule 1. 16( d) pre ve nts the la wye r fro m gi ving no tice o f the fac to f withdra wa l, an d the
la wye r ma y a lso withdra w o r disaffi rm an y o pin io n, doc ume nt, affi rma tio n, o r the lik e.
W he re the c lien tis a n o rgan iza tio n, the la wye r ma ybe in do ub t whet he r con te mpla te d
con duc t will ac tua llybe carr ie do utb y the o rga niza tio n.W here necessa ry to gui de
con duc t i nco nnec tio n with this R ule, the la wye r ma y make inq uiry within the
o rga niza tio n as in dica te di n R ule 1 . 1 3(b) .
.
Acting Competently to Preserve Confidentiality
[ 1 5] A la wye r mus tac t co mpe te ntly to safe gua rd infor ma tio n re la tin g to the
re presen ta tio n ofa c lien ta gai ns t ina dve rten to ru nau thor ize d disc losu re b y the la wye ro r
o the r pe rsons who a re pa rtici pa tin g in the re presen ta tion of the c lien to r who a re s ubjec t
to the la wye r's s upe rvis io n.See Ru les 1 . 1 , 5. 1 a nd 5.3.
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Page 5 of5
[ 16] When transmitting a communication that includes information relating to the
representation of a client, the lawyer must take reasonable precautions to prevent the
information from coming into the hands of unintended recipients. This duty, however,
does not require that the lawyer use special security measures if the method of
communication affords a reasonable expectation of privacy. Special circumstances,
however, may warrant special precautions. Factors to be considered in determining the
reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the communication is protected by law
or by a confidentiality agreement. A client may require the lawyer to implement special
security measures not required by this Rule or may give informed consent to the use of a
means of communication that would othetwise be prohibited by this Rule.
Former Client
[17] The duty of confidentiality continues after the client-lawyer relationship has
terminated. See Rule 1 .9(c)(2). See Rule 1 .9(c)(l ) for the prohibition against using such
information to the disadvantage of the former client.
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RULE I.l6 ABA MODEL RULES OF PROFESSIONAL CONDUCT
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
( I ) the representation will result in violation of the rules of professional conduct or other
law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if
withdrawal can be accomplished without material adverse effect on the interests of the
client, or if:
( 1 ) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers repugnant or
inprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee that has not been
earned. The lawyer may retain papers relating to the client to the extent permitted by
other law.
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Page 2 of 4
Comment
A lawyer should not accept representation in a manner unless it can be performed
competently, promptly, without improper conflict of interest and to completion.
Mandatory Withdrawal
A lawyer ordinarily must decline or withdraw from representation if the client demands
that the lawyer engage in conduct that is illegal or violates the Rules of Professional
Conduct or other law. The lawyer is not obliged to decline or withdraw simply because
the client suggests such a course of conduct; a client may make such a suggestion in the
hope that a lawyer will not be constrained by a professional obligation.
When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also Rule 6.2. Difficulty may be encountered if
withdrawal is based on the client's demand that the lawyer engage in unprofessional
conduct. The court may wish an explanation for the withdrawal, while the lawyer may be
bound to keep confidential the facts that would constitute such an explanation. The
lawyer's statement that professional considerations require termination of the
representation ordinarily should be accepted as sufficient.
Discharge
A client has a right to discharge a lawyer at any time, with or without cause, subject to
liability for payment for the lawyer's services. Where future dispute about the withdrawal
may be anticipated, it may be advisable to prepare a written statement reciting the
circumstances.
Whether a client can discharge appointed counsel may depend on applicable law. A client
seeking to do so should be given a full explanation of the consequences. These
consequences may include a decision by the appointing authority that appointment of
successor counsel is unjustified, thus requiring the client to represent himself.
If the client is mentally incompetent, the client may lack the legal capacity to discharge
the lawyer, and in any event the discharge may be seriously adverse to the client's
interests. The lawyer should make special effort to help the client consider the
consequences and, in an extreme case, may initiate proceedings for a conservatorship or
similar protection of the client. See Rule 1 . 14.
Optional Withdrawal
A lawyer may withdraw from representation in some circumstances. The lawyer has the
option to withdraw if it can be accomplished without material adverse effect on the
client's interests. Withdrawal is also justified if the client persists in a course of action
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Page 3 of4
that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required
to be associated with such conduct even if the lawyer does not further it. Withdrawal is
also permitted if the lawyer's services were misused in the past even i f that would
materially prejudice the client. The lawyer also may withdraw where the client insists on
a repugnant or imprudent objective.
A lawyer may withdraw i f the client refuses to abide by the terms of an agreement
relating to the representation, such as an agreement concerning fees or court costs or an
agreement limiting the objectives of the representation.
Assisting the Client upon Withdrawal
Even i f the lawyer has been unfairly discharged by the client, a lawyer must take all
reasonable steps to mitigate the consequences to the client. The lawyer may retain papers
as security for a fee only to the extent permitted by law.
Whether or not a lawyer for an organization may under certain unusual circumstances
have a legal obligation to the organization after withdrawing or being discharged by the
organization's highest authority is beyond the scope of these Rules.
Model Code Comparison
With regard to paragraph (a), DR 2-109 (A) provided that a lawyer "shall not accept
employment ... if he knows or it is obvious that [the prospective client] wishes to ... [b]
ring a legal action ... or otherwise have steps taken for him, merely for the purpose of
harassing or maliciously injuring any person . . . . " Nor may a lawyer accept employment
if the lawyer is aware that the prospective client wishes to "[p]resent a claim or defense ...
that is not warranted under existing law, unless it can be supported by good faith
argument for an extension, modification, or reversal of existing law." DR 2-1 1 O(B)
provided that a lawyer "shall withdraw from employment . . . if:
"(1) He knows or it is obvious that his client is bringing the legal action ... or is otherwise
having steps taken for him, merely for the purpose of harassing or maliciously injuring
any person.
"(2) He knows or it is obvious that his continued employment will result in violation of a
Disciplinary Rule.
"(3) His mental or physical condition renders it unreasonably difficult for him to carry
out the employment effectively.
"(4) He is discharged by his client."
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Page 4 of4
With regard to paragraph (b), DR 2-l lO(C) permitted withdrawal regardless of the effect
on the client if:
"(1) His client: (a) Insists upon presenting a claim or defense that is not warranted under
existing law and cannot be supported by good faith argument for an extension,
modification, or reversal of existing law; (b) Personally seeks to pursue an illegal course
of conduct; (c) Insists that the lawyer pursue a course of conduct that is illegal or that is
prohibited under the Disciplinary Rules; (4) By other conduct renders it unreasonably
difficult for the lawyer to carry out his employment effectively; (e) Insists, in a matter not
pending before a tribunal, that the lawyer engage in conduct that is contrary to the
judgment and advice of the lawyer but not prohibited under the Disciplinary Rules; (f)
Deliberately disregards an agreement or obligation to the lawyer as to expenses and fees.
"(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
"(3) His inability to work with co-counsel indicates that the best interest of the client
likely will be served by withdrawal.
"(4) His mental or physical condition renders it difficult for him to carry out the
employment effectively.
"(5) His client knowingly and freely assents to termination of his employment.
"(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal
will find the existence of other good cause for withdrawal."
With regard to paragraph (c), DR 2-I I O(A)(l ) provided: "If permission for withdrawal
from employment is required by the rules of a tribunal, the lawyer shall not withdraw ...
without its permission."
The provisions of paragraph (d) are substantially identical to DR 2-1 10(A)(2) and (3).
http://www.lexis.com/research/retrieve? m= 1 07d777563066ec2886d027d3c7eceb5&
brow... I 017/2002
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REPORT ON THE
REMOVAL OF MARIO AMBRA
FROM HIS OFFICE AS COUNCILMEMBER
ON APRIL 18, 2002
INTRODUCTION
On April 23, 2002, the City Council referred to the Council Procedures Committee the
broad topic of addressing issues raised by Mr. Ambra's removal from his seat on the
Mountain View City Council as it relates to City policies, procedures and Code/Charter
provisions. On June 4, 2002, the Council asked the City Attorney to prepare a
background report on the range of issues which led to the removal of Mr. Ambra. Both
of these actions arose out of the very public removal process, and the recognition by the
Council that, to date, there had not been any document published by the City, by the
Santa Clara County District Attorney's Office or the courts which provides a complete
background of the behavior and incidents which led to the District Attorney and Grand
Jury supporting this unprecedented removal.
This report will attempt to fill in those informational gaps. In summary, Mr. Ambra's
conduct while in office involved several areas of concern: ( 1 ) his misuse of City
debit/credit cards and City funds in general; (2) violation of the City Charter by directing
City staff and attempting to remove City staff members; (3) his efforts to secure personal
financial benefits; (4) his insistence on preferential treatment (advance warning of
criminal search warrant at his home); and (5) his use of anger/temper and outbursts of
aggressive behavior to get his way. While these were not an "charged" in the
Accusation, they formed the fabric of behavior which required intervention by the
District Attorney.
This memorandum will also attempt to clarify some misinformation disseminated by Mr.
Ambra and/or others, speaking on his behalf, that his conviction was based on a
"technicality" and that other councilmembers have committed similar acts, but have
never been reported by the City staff nor charged by the District Attorney.
TEMPER/OUTBURSTS OF ANGER
Mr. Ambra's actions while in office must be viewed against the backdrop created by his
outbursts of anger and his violent temper. While these two behavioral expressions could
be seen as one and the same, they are not. Mr. Ambra's temper would "blow" on
occasion, however, on as many or more occasions, he would intentionally act out in an
angry or aggressive manner towards staff, to intimidate, in an effort to get his way.
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The City of Mountain View has an obligation to its workforce and to those it represents
to have a workplace free of hostility or the threat of hostility. One of the things that the
City management tries to guard against is outbursts of anger which can compromise the
wellbeing of the workplace. One of the principal concerns is that if employees hear a
councilrnember, the Mayor or for that matter, a supervisor yelling or directing anger or
aggressive behavior at a person of a higher rank than them, with no remedial action
directed at the person venting the anger; the employees believe they too have to endure
this type of behavior. You can then have an unsafe work environment, plus the potential
for liability.
Mr. Ambra's first significant outburst of anger was directed at then City Clerk Katherine
Koliopoulos in the fall of 1 997. Ms. Koliopoulos had been a City employee for about ten
years at the time. In that incident, Mr. Ambra directed Ms. Koliopoulos to replace the
watch batteries in his City watch (a novelty watch) or give him a new watch. When Ms.
Koliopoulos declined, Mr. Ambra became enraged and approached Ms. Koliopoulos as
she stood behind her desk, blocking the path of exit to her office door. Ms. Koliopoulos
was visibly shaken and upset by the incident and Mr. Ambra was counseled about the
behavior. Ms. Koliopoulos consulted an attorney and considered filing a lawsuit against
Mr. Ambra and the City based on the incident and other actions by Mr. Ambra which
were potentially retaliatory. She ultimately decided against a lawsuit.
There were many incidents since that first initial incident both in the City Clerk's Office,
the Mayor's office and other offices in City Hall. Mr. Ambra directed outbursts at
members of the City Attorney's Office staff and at me in particular. On two occasions he
technically "assaulted" me by charging toward me as though he was going to physically
attack me, stopping within inches of me and, on one of the occasions, started yelling.
The effect of this behavior on other staff was particularly evident. For example, if a
councilmember stopped by looking for me and I wasn't in my office, my staff would tape
a note to my chair. If Mr. Ambra stopped by or called, staff would find me, page me, call
me at home, or whatever it took. They were generally afraid of not being able to provide
him with what he wanted out of fear that he would take it out on me, or them.
In one incident that was typical of his behavior, Mr. Ambra became enraged at
Councilmember Faravelli in the Plaza Conference Room as the Council prepared for a
closed session. Mr. Ambra entered the room and noticed a small cake or cupcake Mr.
Faravelli had purchased in recognition of Vice Mayor Lieber's fortieth birthday. Mr.
Ambra became enraged and began yelling because he, as Mayor, felt he should have been
consulted before such a decision was made. While the subject of the anger was not
important, what was significant was that over a meaningless issue, anger was used to
press his point of view and that staff members viewing same, directed at a
councilmember, will conclude that they are at risk of incurring that same type of anger if
they do not do what Mr. Ambra wishes.
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Just prior to addressing Mr. Ambra's activities relative to the 1 2,000 sq. ft. building
(discussed below) we still had to resolve his use of anger/intimidation directed against
Deputy Community Development Director Ron Geary relative to the tower crane incident
(also discussed, below). The reason this matter was still unresolved in mid-June 2002
was because approximately one year earlier, Mr. Ambra had blown his temper at then
Mayor Rosemary Stasek. Mayor Stasek was generally aware of some of his past conduct
and confronted the City Manager and myself out of concern that staff should not be
subjected to what was essentially violent and threatening behavior. The City Manager
and I then briefed the Mayor and Vice Mayor Noe on the problems with Mr. Ambra's
temper and agreed that any further outbursts by Mr. Ambra against City staff would be
reported directly to the City Council. Since the June 2000 outburst, Mr. Ambra had
others, but not of the degree that prompted this same concern.
Immediately after the tower crane incident, Mr. Ambra was confronted and counseled by
the City Manager, and separately by Councilmember Faravelli. Mr. Duggan indicated to
me that Ambra downplayed his actions and when I confronted Mr. Ambra in late May, it
was clear that neither counseling was effective. Further, the counselings did not fulfill
the requirement of reporting the next major incident to the Council. I had not concluded
my discussions with Mr. Ambra in this regard and was dismayed when he flatly denied
the outbursts directed at Mr. Geary and Ms. Stasek, claiming alternatively that he would
raise his voice on occasion because he was "hard of hearing."
Had the need to consult the District Attorney not arisen in June 2001 as a result of Mr.
Ambra's illegal actions relative to the 1 2,000 sq. ft. building, it was my intention to
consult with the City Manager to determine how best to advise the Council of the
ongoing problem relative to his temper, etc.
KEY BACKGROUND EVENTS
The following will outline the key events which preceded the visit to the District
Attorney's Office. Before describing these events in chronological order, some context
will be helpful, particularly as to the increased tenor of his behavior after his re-election
and assumption of the title of mayor.
From the time Mr. Ambra assumed his elected office in January 1 997, Mr. Ambra
attempted to get City staff to act and improve the value and/or developability of his
property on Rengstorff Avenue. Mr. Ambra was reelected in November 2000 and his
election also advanced him one spot in the rotation for the mayor's seat. He realized that
he would most likely be elected as mayor when sworn in for his second term in January.
Between the election of November 2000 and his selection as mayor in January, he visited
my office on several occasions and openly announced that there was a "new regime" in
place and there were going to be "changes made." When discussing particular "planned"
changes during this period, he indicated that the changes would be accomplished because
he had "4 votes" (a majority of the 7-member Council). He used the term "new regime"
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and declared that there were to be "changes made" to other staff members as well,
including members of my staff.
Almost immediately after being sworn in as mayor, Mr. Ambra started acting out as
though he had been elected to a strong-mayor position. I was the main staff contact
person 1 for Mr. Ambra on substantive matters and I had to regularly advise him that
many of the changes that he sought to implement autocratically, needed to be processed
through the Council and/or the Council Policy and Procedures Committee, with the
consent of the Council. Many issues arose with him directing staff in violation of the
City Charter, seeking reimbursements which were outside City policy limits, and
generally just wanting to run the City.
I consulted with our senior councilmember, Councilmember Faravelli in late January,
less than three weeks after Mr. Ambra had assumed the Mayor's role on how to deal with
a number of problems we were encountering with Mr. Ambra in this role which I thought
would compromise his relationship with the Council. In particular, I was concerned
about the "new regime" comments and the representations about the "4 votes" which I
understood to include Mr. Faravelli's. Mr. Faravelli shared my concern and confirmed
that there was no such consensus and that Mr. Ambra was fabricating. Mr. Faravelli and
I planned to discuss this issue over lunch and after running into Mr. Ambra before
leaving City Hall, invited him to join us. He joined us approximately thirty to forty
minutes into the lunch and afterwards asked to give me a ride back to City Hall (I had
walked to the lunch). Our "discussion" in Mr. Ambra's jeep on the way back to City Hall
is chronicled later in this report.
Obsession With Personal Gain
To put Mr. Ambra's activities with respect to the development of his property and
controlling the development of property around him in perspective, ifi had one hundred
conversations with Mr. Ambra over the four and a half years from when he initially took
office until I reported his behavior to the District Attorney, ninety of those conversations
centered on how he could increase the value of his property through City efforts. In the
few conversations I had with him on behalf of constituent issues, the majority of those
involved constituents that "called" him about issues in his particular neighborhood that
also seemed to relate to the upkeep of the area that would in tum benefit Mr. Ambra's
property.
1
This is odd for the city attorney to be the main staff contact for any member of the city council. There
were two reasons why I assumed or was "assigned" this role. The City Manager, City Clerk and I, had to
steer him away from interactions with other City staff to avoid him: ( I ) giving direction to City staff; and
(2) to avoid liability based on his considerable temper. In several interactions with City staff, when his
temper would blow, the staff member would be traumatized. He is a large imposing individual who often
aggressively invaded people's personal space when using his anger/temper. The City Clerk and City
Auditor would also direct him to talk to me in an effort to distract his pressing them for payments/expense
reimbursements which were unauthorized or illegal.
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I question whether he was "called" on many of these matters because he never could
supply the constituent's name, whereas other Councilmembers nearly always offer the
name so that staff can get back to the person. In each of those conversations, I advised
him that he was not permitted to have that conversation with me or anyone else on staff
because of what I perceived was a conflict ofinterest. 2 Many of those conversations,
perhaps half of them, included an admonishment to Mr. Ambra that he was directly
interfering with City staff in violation of the City Charter.
The Financial Incentive for Acquiring the Neighboring Parcels
Although some interactions with staff concerned other items of interest to Mr. Ambra that
may or may not have affected his financial interests, most of them centered on ( 1 ) the
development potential of his property; (2) his efforts to gain ownership of the parcels of
property immediately behind the property owned by his family; and (3) complaining
about the maintenance of or activities on surrounding properties. 3
As previously indicated, the two-acre Ambra piece fronted on Rengstorff Avenue and ran
the entire length of that frontage from Leghorn Street to Plymouth Street. Immediately
behind his property were two parcels held by two separate individuals which, when added
together, would mirror the size and shape of the Ambra property and, if added to the
Ambra holdings, would double the Ambra property holdings in size and, more
importantly, increase the property's value. One half of that larger piece was owned by
Sarah Ambra, the aunt of Mario Ambra and sister-in-law of Mr. Ambra's father. Because
of a family feud, they reportedly had not regularly spoken in 40 years. The other piece
was owned by Mr. Thomas Sheppell. Mr. Sheppell operated or leased space on his parcel
to a number of outdated, nonconforming uses such as a tin can processing center, storage
facilities and the like. (See Parcel Map, attached as Exhibit A).
Mario Ambra was always putting forth ideas about how his property could be developed.
Even though his half of the Ambra property was zoned industrial, he often spoke to
developers and City staff about having his property rezoned residential so that his
property and the half of the property closer to his father's residence, which was zoned
residential, could then yield a multi-family housing development. The other half of the
Ambra property was zoned multi-family residential and designated for a density of
18 housing units to the acre. If the properties behind the Ambra holdings were added to
the Ambra piece (those owned by Sarah Ambra and Thomas Sheppell), Mr. Ambra
believed that the residential density on the property could be increased to as much as
50 units per acre. Mr. Ambra regularly put forth this idea to me and to members of the
Community Development staff.
2 The conflict of interest I saw was under the Political Reform Act because I believed he had a financial
interest in the property; notwithstanding, his actions would also clearly be violations of the Common Law
Conflict of Interest Doctrine.
3 Mr. Ambra would often make comments like "Mike, you gotta clean this area up, I can't put housing in
here with uses like that."
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It is not difficult to figure out that if you can buy adjacent property at fair market value
(based on the existing lower density) and more than double the residential density on
your existing property, you have bought the new property at a discount and you have
significantly enhanced the value of that which you already ovm. The potential for profit
under this scenario was probably $2 million to $4 million dollars.
Alternatively, he spoke about developing the properties with commercial or industrial
uses. Acquisition of the neighboring properties was advantageous in this regard as well
as evidenced by Ambra's comments relative to the Porsche dealers need for a deeper site
and that many of these issues would require a deeper site (from Rengstorff Avenue).
HIS ILLEGAL ACTIVITIES - CHRONOLOGICAL
It should be noted, that the fact that counts one, two, and three of the Grand Jury
Accusation were dismissed by the district attorney/court prior to trial does not absolve
Mr. Ambra of his illegal actions relative to each of the individual incidents. With respect
to each incident (Sheppell, tow yard, and office building) set forth in those three counts,
Mr. Ambra directed staff in violation of the City Charter in an attempt to benefit himself
or his family. As both a legal and practical matter, the jury's conviction of Mr. Ambra on
Count Four included the exact same allegations (and evidence) set forth in the first three
counts. In addition, Mr. Ambra's illegal actions as set forth in the first three counts were
also illegal under the common law conflicts of interest doctrine.
Sheppell Incident - This involved Mr. Ambra's efforts to have the City take action
against his neighbor, a Mr. Sheppell. The underlying facts of this incident were set forth
in count one of the Accusation issued by the Santa Clara County Grand Jury, to wit:
"urging City of Mountain View officers and employees . . .to conduct City Code violation
enforcement proceedings regarding the premises located at 2060 -2066 Plymouth Street,
Mountain View, California."
This effort was initiated by Mario Ambra as a formal complaint to the Code Enforcement
Division (then in the Community Development Department) against Mr. Sheppell.
Although staff was cognizant that Mr. Ambra should not have made the complaint
directly to City staff, he indicated we would find hazardous materials, open electrical
panels and car batteries leaking into the groundwater. For those life/safety reasons, after
being denied a consent search by Mr. Sheppell, we obtained an inspection warrant from
the court and put together a multi-departmental task force to inspect the property in 1997.
We found very minor violations.
After the inspection concluded, I received an e-mail from Fire Battalion Chief John Fetz
indicating that after the inspection, Mr. Ambra took him aside and told him that he
needed Mr. Fetz to do whatever he could to "run this guy out of business" so Mr. Ambra
could buy the property. Mr. Ambra shared this same intention with me on a number of
occasions. In the succeeding four years, Mr. Ambra made a number of other complaints
against Mr. Sheppell with the same indication that he needed to acquire the property and
gave directions to enforcement staff.
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Tow Yard Issue - This issue was included in count two of the Accusation and addressed
illegal conduct by Mr. Ambra and his efforts to direct City staff to kill a proposed tow
yard on his aunt's parcel. Prior to the City receiving interest from a local tow company to
place a tow yard on the property owned by Sarah Ambra, Mr. Ambra had had the
property owned by Ms. Ambra, in escrow to purchase. The purchase fell through. The
aunt then entered into a development agreement or escrow arrangement with Ellison
Towing who planned to remove some of the houses on the property, retaining one house
to use as an office. Ellison planned to operate a tow yard and vehicle sales operation on
the site. Mr. Ambra became aware of this between June 1 , 2000 and September 30 of the
same year. For the City, the tow yard presented an unwelcome use next to residentially
zoned property (the Sheppell property bordered this site to the south and was zoned
"residential," and in the future would become residential). The Ellison proposal
presented a problem for Mr. Ambra because it would have prevented him from
purchasing this additional site and thereby increasing the value of his own property.
On at least three occasions, he contacted the City Attorney and indicated he wanted the
project killed. He approached the City Manager as well. I told Mr. Arnbra to stay out of
the issue. The City Manager testified that he had conversations with Mr. Ambra advising
him that City staff would not treat the project in any way differently because of
Mr. Ambra's interest in the property.
Fire the Police Chief - In a celebrated incident he approached the City Manager and
wanted the Police Chief fired for not advising him in advance of a criminal search
warrant executed at Mr. Arnbra's residence. One of Mr. Ambra's relatives was involved
in a high-speed police chase in a stolen vehicle and ran into the Arnbra residence after the
vehicle was abandoned at the curb. Mr. Ambra denied seeing the fleeing suspects and
refused to let the police in the house. The police returned within the next week or two
with a search warrant for the Ambra residence looking for personal items missing from
the recovered vehicle. Advance notice of the search warrant would have been, at a
minimum, criminal obstruction ofjustice and the City Manager advised him of same. He
indicated to the City Manager that if he did not fire the Police Chief he would find
another way to fire the Police Chief, which essentially meant that he was going to try to
have the City Manager fired.
The January Jeep Conversation - At the end of our lunch on January 23, 200 1 , Mr.
Arnbra offered me a ride back to City Hall in his new Jeep. When I entered Mr. Ambra's
Jeep for the short ride back to City Hall, he began yelling at me, imploring me to contact
the broker on his aunt's property and get him to sell the property to Mr. Ambra. He
indicated that one call from me, the City Attorney, and they would get the message and
sell the property to him; and that he needed to acquire that property. I advised him in no
uncertain terms that we could not have that conversation; that I could not and would not
contact his aunt's broker; and that i f he wanted to acquire the property he should do so
directly through his own broker.
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He indicated that he had tried to buy the property and that she would not sell it to him and
that it was his cousin (the aunt's daughter) who was interfering with his efforts to buy the
property. He followed me up to my office and continued the efforts to try to get me to
contact the broker. I declined and advised him of the inappropriateness of his conduct.
The Tower Crane Inciden t - On April 26, 200 1 , Mr. Ambra ordered the Deputy
Community Development Director, Ron Geary, to have a million dollar tower crane
removed from the construction site at 400 Castro Street and/or the construction site shut
down.4 That action clearly interfered with the City Charter and again, Mr. Ambra used
anger and intimidation in an effort to get his way. The crane was safe and the Deputy
Director advised him of same. The implication of shutting down the job for the City is
that it would have created a significant liability to the City due to the resulting cost to the
owner of the project. Damages against the City could have been in the tens of thousands
of dollars.
As we began to address the next problem (the 1 2,000 sq. ft. building), we were just
beginning to address Ambra's inappropriate disclosure of closed session information to a
friend immediately after a closed session involving the City Manager's performance
evaluation. The friend left a voice mail for the Police Chief that evening, referencing the
information about the closed session given to him by Mr. Ambra.
The 12,000 Square Foot Office/R&D Building - Count three of the Accusation
centered on a proposal to build a 12,000 square foot building on the "aunt's parcel." This
was essentially the "straw that broke the camel's back" for Mr. Ambra. This issue
produced the behavior which in tum, led to reporting Mr. Ambra to the District Attorney.
For that reason, I will provide greater detail with respect to the facts surrounding this
proposal.
By June, 200 1 , Mr. Ambra had served as Mayor for five (5) months. On a day to day
basis, Mr. Ambra had become more directive toward City staff and less and less tolerant
of the word "no." This demeanor was reflected in all aspects of his behavior.
The attempts by Mr. Ambra to have staff"kill" the office building was the catalyst which
forced us to visit the District Attorney for two reasons: ( 1 ) Mr. Arnbra's relentless
approach; and (2) this time we couldn't seem to stop him.
On Tuesday, June 12, 2001, I received a telephone call from Mr. Ambra on my direct
line. He was offended by the proposed project and by having to hear about the project on
his aunt's property from the developer rather than from our Community Development
Department (CDD) staff. I advised him that CDD staff probably did not call him based
on my advice to treat him like any other citizen and, therefore, to protect him from
violating the law. I tried to calm him down, and he was clearly exercised about the fact
4
After the removal process began, Mr. Ambra claimed that he received a call from a citizen who saw (or
feared) rocks could fall from the crane. This was spin; the reasons he gave to Ron Geary were: ( 1 ) the
owner of the project (Tishman Speyer) had too much influence in the City and needed to be put in their
place; and (2) he had seen a documentary on TV about cranes collapsing.
8
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that a building would be constructed next door and would foreclose his opportunity to
purchase the property.
I got off the phone with him and began checking with Comrnm1ity Development
Department staff as to whether the proposal was for an office building or a research
(R&D) facility. Within 10 minutes of hanging up with Mr. Ambra, he called back
indicating the developer had just telephoned him again and wanted to meet with him. At
this point, he was extremely agitated, and I had to remove the phone from my ear.
The next day, Wednesday, June 1 3, he called me into the Mayor's office (he was Mayor
for the year 2001) and advised me that if the project went fonvard he was going to have
the City Manager and the Community Development Director fired. While he mixed in
various other issues, he kept returning to the need for the City to help him acquire his
aunt's property. He said that the Community Development Director and City Manager
had no vision for his area; that his neighborhood was a jewel of an area; and the City
should be doing what it could to help him acquire the property. He also advised me that
he had a Porsche dealer interested in developing his property, provided he could acquire
the aunt's piece and the Sheppell piece. I reminded him of the law as well as the
Council's lack of interest in studying and rezoning this area, at this time.
My effort to modify his behavior was apparently not effective and on Thursday, June 14,
and Friday, June 15, I met with Mr. Ambra at least three or four times and the
conversations were the same, but his tone was heightened with respect to the firing of the
City Manager and the Community Development Director. What was interesting about
this time period was that it was right in the middle of our performance evaluations (mine,
the City Manager's and the City Clerk's) and our next scheduled meeting with the City
Council in that regard was Tuesday, June 19.
I advised the City Manager of some of my discussions with Mr. Ambra on Thursday,
June 14, and he shared with me that after responding to a phone call from Mr. Ambra
with respect to an article that appeared in the San Jose Mercury News, 5 Mr. Ambra
assumed a belligerent tone and became accusatory toward him for no apparent reason.
When Mr. Duggan responded with little tolerance for his tone and behavior, Mr. Ambra
lost his temper; started verbally criticizing/attacking the Community Development
Department and again became accusatory and threatening. This explosion by Mr. Ambra
included veiled threats against both the department head and the City Manager. The
discussion then turned to the proposed office building.
The City Manager was out of the office on Friday, June 15, and I had additional
conversations with Mr. Ambra. At one point, I thought I was making some progress
because after trying several different approaches, shared with him that if his aunt did not
sell him the property, there was no way for us to force her to do so even i f we had an
ordinance that required property assemblage. He asked me to explain how property
5 Mr. Ambra was reportedly exercised by an article which chronicled family and friends gathering to
dedicate a trail head along Stevens Creek Trail, feeling that he as Mayor, should have been consulted.
9
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assemblage ordinances worked6 and, after describing same, I advised him that if this
process went forward it would be far better to have a nice new clean office building than
a tow yard or an automotive repair shop next to his property, as allowed in the MM zone.
I was trying to get across to him that if the City did kill the project as he requested, he
may very likely end up with a Jess desirable use.
On Monday, June 18, Mr. Ambra's tactics took a slightly different tum. He approached it
from a standpoint that he was pretty convinced that the City Manager could be fired and
represented to me that he had the votes to accomplish same. He made it very clear and in
direct terms that if the City Manager or Community Development Director did not block
the project, he would have them fired, and this was repeated during all of my
conversations with him on Monday and Tuesday of that week. At one point, he told me
that I was in no danger with the Council and that I was going to sail through my
evaluation, but if the City Manager was fired, he would want to make me City Manager. 7
Ambra Confronts the City Manager- Once it was clear to Mr. Ambra that he was not
going to get anywhere with me, he started talking about going to talk to the City
Manager. I advised him that he could not talk to the City Manager directly or indirectly
about the proposed office project or about the development of his parcel. He again
conveyed the threats about getting the City Manager fired, and I asked him: "Mario,
what do you want me to do? Do you want me to scare the hell out of the City Manager
[that] his job is in jeopardy so he tells Elaine Costello to kill the project?" He answered,
"Yes." I asked him, "Do you want him to go downstairs and tell Elaine Costello to kill
the project?" He repeated, "Yes." I advised him that I thought he was committing a
felony and that I was not going to tell the City Manager to do anything on the project. I
further advised him that I was going to specifically tell the City Manager not to
communicate anything to the Community Development Department with respect to the
project. 8
After that, I learned that he went to the City Manager on Tuesday, JW1e 19, which the
City Manager described as "the calm Ambra," calling the City Manager early in the
morning and apologizing at least five times for losing his temper during the conversation
on Thursday (June 14). Mr. Ambra then launched into his aunt's property and asked to
meet that afternoon. The City Manager reported that he was called into the Mayor's
office for about 30 minutes on this and other topics, with Mr. Ambra suggesting that the
City should put so many conditions on the development of that property (the office
0 Property assemblage ordinances are not a "category" of ordinances and differ widely in approach. They
are understood by few. Suffice it to say that his later request to the City Manager to "heavily condition" the
proposed office building so the new owner (of the aunt's property) would be forced to sell to him was
consistent with part of a property assemblage approach which I described to Mr. Ambra several days
earlier.
7 For reference only, he was just leveraging. Both the City Manager and City Attorney received glowing
evaluations and merit pay increases.
8
Even though the office project could have been approved at the staff level, the City Manager, Community
Development Director and I decided on Wednesday, June 20, to refer the project to the City Council for a
final decision to avoid any appearance of impropriety. It was approved by the Council in September 2001.
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10
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building) that it would frustrate the developers and force them to sell it to him at a
reduced price. The City Manager found this line ofbehavior unbelievable and sunnised
that because his evaluation was scheduled for that evening, Mr. Ambra felt he had the
most leverage. Mr. Duggan testified that he was flabbergasted that Ambra had the
temerity to call him to the Mayor's office, look him straight in the eye and tell him to kill
the project.
Mr. Ambra thereafter reported his conversation with the City Manager to me, and I asked
how the conversation went. (I had already talked to the City Manager who told me about
the five apologies.) Mr. Ambra described the conversation as a good conversation
because he really laid it out for the City Manager that his job was essentially on the line
and that he had to do what he could to help him assemble the property. A day or two
later, the City Manager advised me that Mr. Ambra also brought up the proposed Porsche
dealership during that conversation and the need for the City to help him acquire the
property in similar detail to what Mr. Ambra described.
The above account of Mr. Ambra's efforts aimed at stopping the 12,000 square foot
office building must be superimposed against the overall background of inappropriate
and illegal activity by Mr. Ambra since he became Mayor. The "new regime" approach
and the feeling that he was somehow not subject to the City Charter reached a crescendo
when I began addressing his new initiative (the 12,000 square foot building) on June
12th.
Comment: In hindsight, we are not sure why Mr. Ambra could not be stopped this time.
It could have been that he believed that without us stopping it, that this project (unlike the
tow yard) would go forward (he had had discussions with the developer). Perhaps it was
the prospect of a Porsche dealership on his property and/or it may have been his
perception of his apparent power as Mayor.
Going to the District Attorney
On Wednesday evening, June 20, 2001, it finally settled in that through all of our
attempts during the four plus years with Mr. Ambra, we had not made a dent in his
behavior nor in his willingness to understand that he could not participate in
governmental decisions in his role as a Councilmember to benefit himself or his family.
Going to the City Manager and attempting to harm one of our customers (the new owner
of the aunt's property) was the straw that broke the camel's back. That evening, I
telephoned the City Manager and the Vice Mayor to advise them that I would like to meet
with the Vice Mayor and a member of the Council the next morning to advise them
officially that I was going to visit the District Attorney and ask for help. 9
9
After speaking to the City Manager I left a voicemail message for the Mayor. Before the Vice Mayor
returned my call at approximately 10:00 p.m., I received a telephone call from Councilmember Faravelli
who asked me how and in what manner he and another member of the Council, Mary Lou Zoglin, could sit
dmvn with the Mayor and advise him that the inappropriate disclosure of closed session information (the
"new issue" referenced above) by Mr. Ambra would no longer be tolerated. At that time I advised Mr.
Faravclli that there were probably larger issues at hand with respect to my initial decision of having to go to
the District At torney.
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The Vice Mayor requested that Councilmember Ralph Faravelli, the most senior member,
attend as well. Interestingly, Mr. Faravelli and I performed the joint function of "jumping
in front of the Ambra train" for the past four plus years. 10 We met the next morning at
9:00 a.m. In attendance were the City Manager, myself, Vice Mayor Sally Lieber and
Councilmember Ralph Faravelli as well as Councilmember Mary Lou Zoglin. After
discussing some of the problems and the various options (and not seeing any preferable
option), I advised the group that I would be making an appointment to meet with the
District Attorney as soon as possible.
Upon leaving this meeting, I went directly to Police ChiefMaehler's office and while
waiting for him to complete an employment interview, I drafted a memorandum to the
entire Council for the Vice Mayor's signature (Exhibit B). We then telephoned Mr.
Kennedy's office and scheduled an appointment for the next morning.
When I visited the District Attorney, I did not bring a file to tum over to the District
Attorney and the only document the District Attorney took from me and kept was a
photocopy of the public parcel map showing the location of the various properties at
issue. During my meeting with the District Attorney I outlined the past history of Mr.
Ambra's attempts to increase the value of his property through coercing action or
inaction on the part of the City staff and mentioned that we also had some issues with Mr.
Ambra's misuse of City funds. While I was personally aware of many of the other
elements of misconduct by Mr. Ambra during his time in office, it was the investigation
conducted by the District Attorney's Office that illuminated the full picture relative to
these other events.
It is of interest to note that once Mr. Ambra received the Vice Mayor's memorandum,
referenced above, on June 2151 and my follow-up memorandum on June zznd , (Exhibit B)
he immediately stopped the behavior which led to his removal. This seems ironic that
such a radical change in behavior would occur i f there was nothing inappropriate about
the prior behavior as Mr. Ambra contends. There was one noted exception, namely that
during the Environmental Planning Commission's consideration of the City's housing
element, Mr. Ambra did contact one or more Planning Commissioners for the purpose of
achieving a higher residential density on his property. This contact was inappropriate
under State law.
PROCEDURAL HISTORY
Mario Ambra was elected to the Mountain View City Council in November 1996 and re
elected for a four year term in November 2000. During the first year of the second term,
he served as Mayor, a position rotated among Councilmembers. He was removed from
10
"'Jumping in front of the train" was the metaphor we used for contacting Mr. Ambra or interacting with
Mr. Ambra when he was out of control. His temper would flare on a variety of issues and he would need to
be counseled to avoid proceeding with a course of conduct that would harm him or the City. We would
encounter the anger, frustration, and intense energy produced as a result of him having heard the word
"'no,.. and it often seemed like we were trying to stop a freight train.
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office by Judgment of Removal on April I S, 2002, after a jury convicted him of violating
Government Code Section 3060 for knowingly and willfully engaging in misconduct in
11
office by violating Mountain View City Charter Section 607/1604. A copy of the
judgment is attached as Exhibit C. The District Attorney called eleven ( 1 1) witnesses to
testify at Mr. Ambra's trial, including eight (8) City employees, Mr. Ambra's cousin, a
real estate broker and a local realtor. The defense called no witnesses and Mr. Ambra did
not testify. 1 2
The jury trial arose out of a four-count accusation (see enclosed Exhibit D) issued by the
Santa Clara County Grand Jury. The District Attorney originally proposed five (5)
counts with the additional count relating to Mr. Ambra's misuse of City funds in the
purchasing of airline tickets for Mrs. Elizabeth Ambra and other alleged improprieties
with public funds. On the eve of the Grand Jury (October, 2001) the District Attorney
decided not to present that latter charge and explained that the charge was dropped
because they believed that the remaining charges and ultimately a trial on the fourth
count (the one he was ultimately convicted of) was sufficient to remove Mr. Ambra from
office.
The first three counts of the accusation, each of which alleged violations of Government
Code Section 87100, were dismissed as part of the pretrial procedure because Mr. Ambra
represented to the court that he had no financial interest in the property upon which he
lived (and which he was trying to develop) within the meaning of the Political Reform
Act. Under a seeming technicality, Mr. Ambra's efforts to increase the value ofhis
family's property holdings on Rengstorff Avenue would therefore be a violation of the
common law conflict of interest doctrine, but would not be a violation of the Political
Reform Act (Gov't. Code § 871 00, et seq.). Since the first three counts of the Accusation
did not allege violations of the common law conflict of interest doctrine, the District
Attorney made a motion to dismiss those charges. The court granted the motion.
Mr. Ambra's actions and statements to the State (his Form 700) and to City staff, directly
contradict the position he took in court 13 as to the family trust; however the District
Attorney chose not to pursue the first three charges of the accusation, feeling confident
that the fourth count would result in his removal. 14 The matter went to trial on only the
fourth count, that of knowing and willful misconduct in office for violating the City
1
1 Mr. Ambra attempted to resign from office one ( 1) day prior to his removal; the court ruled that the
"resignation"' "takes care of any enforcement of the judgment" and entered the order/judgment removing
him from office. The Mountain View City Clerk entered his removal from office in the official minutes of
the City on April 23, 2002, which created a vacancy on the City Council.
1 2 Technically, the defense called the DA 's investigator as a witness for a procedural matter but did not
attempt to solicit substantive information.
IJ Attached to this memorandum as Exhibit E, is an explanation of Mr. Ambra's actions and statements
with respect to the trust which contradict the representations he made to the court (that he lived on property
owned by his father, yet had no financial interest in the property) in the pretrial proceedings.
1 4 The trial on Count Four included all the evidence and testimony contemplated under counts one through
three, had they gone to trial. Mr. Ambra made a motion to limit that testimony since the counts themselves
had been dismissed; the court denied the motion finding that the allegations in Count Four did embrace all
of the misconduct previously set forth in counts one, two and three.
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Charter by interfering with the Council/City Manager form of government. A unanimous
jury convicted Mr. Ambra.
Count Four - Count four was for violation of Government Code § 3060 and for
specifically violating Charter Section 607.
Count Four provided as follows:
The Grand Jury of the County of Santa Clara, State of California, hereby
accuses MARIO LOUIE AMBRA, a duly elected and acting
Councilperson for the City of Mountain View, in the County of Santa
Clara, California of knowing, willful and corrupt misconduct in office, in
violation of Government Code Section 3060, committed as follows:
COUNT FOUR
That on or about and between April 1 , 1997 and September 25, 2001, the
said MARIO LOUIE AMBRA, a duly elected and acting Councilperson
for the City of Mountain View, in the County of Santa Clara, California,
did knowingly, and willfully interfere with the execution by the Mountain
View City Manager of the manager's powers and duties and ordered
directly and indirectly the removal of the Mountain View City Manager
and the City of Mountain View Planning Director and failed to deal with
the City's administrative senrice solely through the City Manager and
gave orders to subordinates of the City Manager, in violation of the
Mountain View City Charter Section 607/1 604.
City Charter Section 607 provides as follows:
Section 607. Non-Interference with Administrative Service
Neither the Council nor any of its members shall interfere with the
execution by the city manager of the city manager's powers and duties, or
order, directly or indirectly, the appointment by the city manager, or by
any of the department heads in the administrative senrice of the City, of
any person to any office or employment or that person's removal
therefrom. Except for the purpose of inquiry, the Council and its members
shall deal with the administrative senrice solely through the city manager,
and neither the Council nor any member thereof shall give orders to any
subordinate of the city manager, either publicly or privately.
WHY REMOVAL?
No member of City staff was involved in the decisiomnaking at the District Attorney's
Office. It was the District Attorney's Office that decided to focus upon the fourth count
as the principal count which would justify removing Mr. Ambra from office. The District
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Attorney's Office explained that the reason they felt strongly about this particular charge
was that Section 607 of the City Charter was not adopted by the City Council, but rather
was put in place by the electorate, the voters of Mountain View, and served as an express
legal limitation on the authority of those elected to the City Council. The voters of
Mountain View had therefore decided the manner in which they wanted their government
conducted. The District Attorney believed Mr. Ambra knowingly and willfully violated
this important rule after being warned, countless times.
The District Attorney's Office was also impressed with the fact that all councilmembers
are briefed on the importance of this Charter provision and the division of authority
between setting policy (by the Council) and directing implementation of policy (by the
city manager). Added to that was the fact that Mr. Ambra was counseled and
admonished on many additional occasions, perhaps as many as fifty, by fellow
Councilmembers, the City Manager and the City Attorney. He nevertheless decided to
ignore the people's express edict as to how government in Mountain View should
operate.
Finally, while impressed with many of the successes staff had in thwarting Mr. Ambra
from achieving the results he desired, the District Attorney dismissed the notion that "if
there's no harm, there's really no foul . . . So what's the big deal?'' To respond to this
question, Special Assistant District Attorney William Larsen argued to the jury:
"The big deal is and the harm is that the integrity and honesty of local city
government hinges on elected public officials conducting themselves in
accordance with the law. And it's important to maintain the integrity and
the honesty in local government and not wait for a case where something
actually does go afoul and there is a project killed inappropriately,
unlawfully, behind the scenes, down the back hallways, behind closed
doors, not in the normal course of governmental function. . . . We want
honesty and integrity in government. We want elected public officials to
follow the law, and we want public officials to not misconduct themselves.
And in this particular case, not only knowing and willfully misconducting
themselves, but we don't want public officials furthermore conducting
themselves in a corrupt way where their motive and intent in going around
the lawful processes is so that they can feather their own nests and obtain a
monetary or other advantage for themselves or someone else."
HOW THIS MATTER GOT TO THE DISTRICT ATTORNEY
As indicated, a complete understanding of Mr. Ambra's misconduct in office requires an
understanding of his usc of anger or outbursts of temper to secure the results he desired;
the misuse of City funds; the directing of City staff; demands for special treatment; and
efforts to realize a personal financial benefit. Once reported to the District Attorney, the
District Attorney investigated the matter and determined the scope of the investigation,
the relevant evidence, and the charges to be alleged.
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The City also never requested punishment of Mr. Ambra. District Attorney George
Kennedy is the chief law enforcement official of the County and has independent
jurisdiction to determine whether a crime/misconduct has been committed. When the
District Attorney makes such a determination, he can then determine how best to resolve
the matter.
I visited the Santa Clara County District Attorney, Mr. George Kennedy, at 10 a.m. on
Friday, June 22, 2001, accompanied by our then Police Chief, Michael Maehler. The
meeting had been scheduled the day before and lasted approximately thirty (30) minutes.
The purpose of the meeting was to ask the District Attorney to evaluate whether or not
Mr. Arnbra's conduct was, in fact, illegal and whether or not the District Attorney could
help. The District Attorney assigned Senior Investigator (Captain) Joseph Brockman
(San Jose Police Department, Retired) and Special Assistant District Attorney William
Larsen, head of the Government Integrity unit, to the case.
The primary reason for contacting the District Attorney in June 2001 was that even
though staff had been somewhat successful in thwarting Mr. Ambra's i llegal behavior, he
was relentless in his efforts to kill the newly proposed development project (the 12,000
sq. ft. office/R&D project) next to his home and to have the City help him acquire the
property. Being unable to stop him, and after he violated both my advice and direction
not to engage the City Manager in the discussion about killing the office/R&D project,
the City Manager and I concluded that we could not be successful in protecting the
community, the staff, and the project applicant from his illegal attempts to influence the
process.
MISUSE OF PUBLIC FUNDS
The City has a policy for reimbursing councilmembers for expenses. The policy provides
that in cases where interpretation is needed about whether or not an expense is
reimbursable, the mayor can make the interpretation. In our wildest fantasies we never
thought a mayor would make that interpretation for their own expenses. The major
categories of misconduct with regard to City finances are as follows:
1 . Airline Tickets for Elizabeth Ambra
The City provides purchasing cards, similar to credit cards, to City Council members
which can only be used for City business purposes. On two occasions, the Mayor
charged airline tickets for his wife's private travel on the City purchasing card he was
provided. Copies of the debit card bills showing travel for Elizabeth Ambra are attached
as Exhibit F).
Mr. Ambra has stated in his letter to the editor of The Voice that the City was completely
reimbursed for the airline tickets and that the City received not only reimbursement, but
two flight credits. The tickets were inappropriately charged in January 2001 and again in
May, 2001 and paid for by the City in the month following the charges. City staff
members repeatedly tried to secure reimbursement from Mr. Ambra for the charges
-16-
identified on the purchasing card billing statements as belonging to his wife. The
Ambras declined to pay and the City was only reimbursed after the Grand Jury issued its
accusation, on November 15, 2001, and the matter became public, many months after the
City paid for the airline tickets. City staff does not know what Mr. Ambra is referring to
in his Jetter to the Voice when he states that two flight credits have been received by the
City. There is no record of the City ever receiving such credits.
In his letter to the Voice, Mr. Ambra also states it is common practice for Council
members to use their purchasing cards for private purposes and subsequently reimburse
the City. The City has never had such a practice and Council members are very careful to
use their City provided purchasing cards exclusively for City business.
2. Meals for Elizabeth Ambra
He charged meals for his wife while on City travel with him. The policy does not allow
meals for spouses or companions. Reimbursement was requested. No reimbursement
has been received.
3, Tuxedo Purchase
Mr. Ambra purchased clothing, a tuxedo, and demanded reimbursement. He aggressively
intimidated the Finance and Administrative Services Director and made the policy
interpretation to reimburse himself for $500 of the cost of the $750 tuxedo from what is
known as "management development funds."
The purpose of management development funds is set forth in Section 3.2 of the City of
Mountain View Administrative Instructions Manual. It provides that the purposes are as
follows:
To encourage and assist the professional and personal development of
management/professional persmmel by providing an annual allowance
each fiscal year of up to $500 (for management employees) . . . to be
expended on training; professional conferences; memberships; office
automation tools such as computer terminals, printers, modems, fax
machines and copiers and other items relating to personal and professional
development.
The authority to interpret the Council expense policy (Policy No. A-2) does not extend to
the Management Development Policy (No. 3-2). The tuxedo reimbursement was not a
computer or a conference and was outside the parameters of the policy. Furthermore,
policy interpretations would be directed to the city manager, not the mayor. Clearly, in
this case he "participated in a governmental decision" within the meaning of Political
Reform Act and, perhaps, violated Government Code Section 1090.
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4. The Fire Hydrant
A City fire hydrant was destroyed in a car accident by Mr. Ambra's stepson. The cost of
the fire hydrant was approximately $900 and the City has still not received
reimbursement from Mr. Ambra or his stepson. When Mr. Ambra's stepson was billed
for the fire hydrant, Mr. Ambra called the City Manager and then called the City
Attorney. In my conversation with Mr. Ambra, he screamed at me that he would not pay
it, that no court would require him to pay it, and then he would have the City Manager
fired for trying to send him a bill eleven months after the accident.
Following standard procedure, this matter has been referred to a collection agency.
5. Cell Phone Bills
Mr. Ambra regularly submitted cell phone bills for reimbursement which were
significantly higher (three to four times) than those of other Councihnembers and would
argue that all calls were "City business." There was no correlation to actual City business
and the vast number of calls.
THE UNIQUENESS OF AMBRA'S CONDUCT
Part of the unfortunate "spin" to come out of the Ambra defense strategy before the trial
and after his conviction was that he was convicted on a mere technicality because he was
unpopular at City Hall for trying to vigorously represent the interest of Mountain View
residents against the City bureaucracy. An additional element of this spin is that other
councilmcmbers did the same, but were not targeted by the City Manager, City Attorney
or the District Attorney. This is fiction.
If these contentions were true, it would have been a very simple matter for Mr. Ambra to
take the witness stand or for Mr. Ambra's defense counsel to call current or former City
staff members or current or former City councilmembers to establish the disparate
treatment of Mr. Ambra.
Education of Incoming Councilmembers Incoming Councilmembers are briefed
personally and as a group on the division of power which the voters in this City made
when they adopted the Charter in 1951. Moreover, this is a topic of considerable
discussion and inquiry among existing and new Councilmembers when a newly formed
Council sits down for goalsetting and teambuilding sessions. In both the trial and in the
media, Mr. Am bra took the position that when he was first elected in 1996, he was one of
two councilmembers who raised the issue of the proper relationship between
councilmembers and staff below the rank of City Manager. It is true that two incoming
councilmembers did start a dialogue on this subject in 1 997 when Mr. Ambra was first
elected, however, Mr. Ambra was not one of those two councilmembers.
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18
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T he two who rai se d this i ssue we re C ounci lme mbe r S ta sek and then -C ounci lme mberN oe
wh o, when advi se db y ex istin gC ounci lme mbe rs tha t the be st prac tice i s to funne l all
c ontac ts throu gh the Ci ty M ana ge r, we re c oncerne d ab ou t the sc ope of the limit at ion.
C ounc ilmernbe rN oe an d C ounci lme mbe r S tasek we re more in te re sted in their abi li ty to
make inqui rie s to staff or to li sten t o staffif staffca me to the m direct ly wi th a c omplain t
orque sti on. At n o ti me di dM s. St asek orM s. N oe que sti on the in te gri ty ofthe Charter
p rovi si on or it s c le ar di vi sion of power.
M ore ove r, t he C ounci lc ontinue s to en dorse thi s divi si on an d di d so ex pre ssly a t thei r
S prin g 2001 tea mbui ldin g se ssi on s whe re a ll ackn owle dge d th at it is best t o got hrou gh
t he Ci ty M an age r.T he se se ssi on sprece de dMr. A mbra' s acti on s in June 2001 re la tive to
t he office bui ldin g.
Unprecedented Conduct - Fina lly, the " spin" refe rence dab ove doe s a di sser vice to a ll
c ounci lme mbers who ha ve serve dt he re si den ts ofM ount ain Vie w.M r.Ambra' s c on duc t
was un prece dente d in kin dan d degree.Occa si onally ac ounci lme mbe r wi ll make
c on tact s wi th staff for the pur pose ofinqui ry an d in that c ontext offe r an opini on.
An ythin g pa st an inquiry i s typic ally referre d to the ci ty ma na ge r. Ift he ci ty ma na gerhas
any c oncern s, a di scu ssi on en sue sbe tween the ci ty man a ge r orci ty attorne y an dth at
c ouncilme mber. T he re ha sne ve rbeen a nee d for a c omplain ta gainst ac ounci lme mber
or forc orrec ti ve acti on tobe taken, in my tenu re wi th the City.
Fina lly, the Ci ty M an a ge ra nd thi s write r cann otrec all an yc on tact s b y c ounci lme mbers
and/or di recti on gi ven toCi ty staff where the goa l b y the c ounci lme mbe r i spersona l
fin anc ia l gain. T he pu re nu mbe r of atte mpts, perhap s one hun dre d or more, which M r.
Amb ra ma de in t ryin gt o ge tCi ty staff toinc rea se hi s fin anc ia l holdin gs, doe s a
di sse rv ice to othe r c ounci lmc mbersb y a tte mptin g t o pain t the m with tha tbru sh.
CONCLUSION
T his me moran du mh as trie d to provi de the rea der wit h an orderly acc ountin g of some of
the prob le ms whic h le d to the re moval ofM r.A mb ra from his office as a c ity
c ounc ilpe rson. I t ha s a t empte d to do this wit h a min imu m of opin ion an d in nuen do and
b y dra win g, a s muc h as p ossib le, fr om matte rsin t he pub lic rec ord. Mr. A mb ra' sca se
wa s re viewe db y an ei ghteen me mbe rGran dJury an db y at we lve me mbert ri a ljuryb oth
of whic h su pp orte d the accu sati on s.
A lt hou gh the Di stric tA ttorne yc ou ld ha ve sou ght cri min alch arge s or sou gh t to re for m
Mr.A mb ra' s c on duc t t hrou gh othe rci vil me an s, he c onc lu de d tha tt he re len tle ss ac ti on s
on M r. Amb ra' s par t an d the fa ilure oft hose ac ti on s to sub si de afte r n oti ce an d warnin g
requi re dhi s re moval from pub lic office . Removal of an offic ial e lecte db y the vote rs i s
ra re y
l e mploye d; i t ma y occu r once e ve ry twen ty ye ars and the refore is n ot c ava lie rn ori s
tobe c omp are d wi th any other trivial acti on s t ha tMr. A mbra trie s toc ompare tohi s
ac ti on s in hi s effort to def lect fr om the profoun dn atu re of the jury' s verdic t.
-19-
More importantly, the Mountain View City Council and City staffhad little to do with the
choices made in this case, and in particular, the decision to remove him from office. Of
particular note is the fact that in the five (5) months from when the matter was reported to
the District Attorney (June 22, 2001 ), to the date the District Attorney issued a press
release announcing the charges (November 19, 2001), neither staff nor Councilmcmbcrs
made public statements about the investigation, politicized the matter, or treated Mr.
Ambra differently, based on the matter under investigation. This was never about politics
or control; it was directly related to what the independent investigation by the District
Attorney confirmed: misconduct in office by Mr. Ambra.
Finally, other than one letter to the editor purportedly written by Mr. Ambra and the trial
posturing through his defense counsel, Mr. Ambra has never spoken to the public in an
open debate on this matter nor offered any evidence to dispute the facts as stated.
Michael D. Martello
City Attorney
cc: CM, CC, ACM, DCM, Dept. Heads
-20-
PRopo••<l
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LOCATION MAP
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EXHIBIT A
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santa Clara
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:Ambra Sarah Trustee �c Al
ownor
Pa.
coowner
el
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Land
:$55,007
Site
: 2 0 1 9 Leghorn S t Mountain View 94043
Mail
: 2 0 1 9 Leghorn St Mountain View Ca 94043
Struct
Xfered
:OB/09/1993
Other
: 12040175
Doc #
: 1 5 3 " 001
Bldg Id
:$60,716
Price
Deed
Total
: $1 1 5 , 7 2 3
LoanAmt
Loan
Umprvd
; .52
IntTy
Exempt
t Owned
Lender
VestTyp
:100
: $7, 000
LandUse
: 0 4 Res , S Or More Family Units
Type
:Homeowners
Zoning
:Mm40
TaxArea
!05018
0 0 - 0 1 Tx : $ 1 , 46 1 . 2 6
SubPlat
.f1ll>n<
Legal
Census
:Tract : 5 0 9 3 . 04
MapGrid
: 8 1 1 G1
.
.
. .
.....
Block : 1
:650·967-6803
owner
.
.
........
Tenant
.
Total Rm•
Bldg SF
' 5 , 250
Units
,,
Year Built
:1950
Bedrooms
Lot SF
: 35 , 10 0
Patio
:No
BffYearBlt
: 1950
Garage Sp
: 11
Bathrooms
,,
Stories
Lot Acres : . S 1
Porch
Lot Dimen: 150x23-4
Elevator
:No
: s ' 250
Dining Rm
CntlHt/AC:No
Lease SF
Family Rm
Pool
:No
Office SF:
Fireplace : No
Sprinkler:
'"' Room
:No
* · · · -------··------------ - · - - - - :
Owner
:Ambra Concetto L Trustee
NtttroSci!m
I
Santa Clara
Coowner
Site
: 9 8 7 N Rengstorff Ave Mountain View 94043
Mail
: 9 0 1 N Rengstorff Ave Mountain View Ca 94043
'02/27 /1990
Doc: # :10436363
Xfered
Price
Deed
Loa.nAmt
Loan
: 2 0 Mfg, Food And Kindred Products
Zoning
:Mm40
SubPlat
:Sierra Vista Add
MapGrid
:Tract : S 0 9 3 . 0 4
: 8 l l G1
:153
Bldg Id
,,
Land
: $ 6 2 , 145
Struct
: $ 1 , 190
02 041
Total
: $ 6 3 , 335
\:Imprvd
,,
Type
0 0 - 0 1 Tx
-
Block : 1
Owner
:05018
:$1, 026.88
: 6 5 0 - 967-5373
Tenant
Bldg SF
Bedrooms
Lot SF
:35,424
Bathrooms
Lot Acres : . 81
Stories
Lot Dimen : 144x246
Dining Rm
CntlHt/AC :No
Rec Room
: L - Shape
: - - - - -- - - - - · - · - - · - · - - - - ·
Parcel
Ta.xArea
Total Rms
Fami ly Rm
:5.s
:5.s
Exempt_
Legal
Census
Bldg shape
t owned
IntTy
LandUse
Bldg Cond
Bldg Class
Other
Lender
vestTyp
Garage SF
Pool
Fireplace:
Units
Year Built
: 1930
Patio
EffYearBlt
:1930
Porch
Elevator
Garage Sp
:No
Lease SF
Garage SF
Bldg Cond
Office S F :
Bldg Class
Sprinkler : No
Bldg Shape
CITY OF MOUNTAIN VIEW
t\tEMORANDUM
DATE:
June
TO:
Members ofthe City Council
FROM:
Sally J. Lieber, Vice Mayor
SUBJECT:
Councilmember Conduct
�
21, 2001
I have been advised by the City Attorney that an issue has arisen involving a
Councilmember's interaction with-staff. The circumstance involves contacting staff .
members in an attempt to influence staff's evaluation of a development proposal on
property located adjacent to property owned by the Council.member. Because these
actions may involve the violation of one or more state laws, the City Attorney will be
consulting the Santa Clara County District Attorney before taking any further action or
bringing this matter before the City Council.
If you have any questions regarding this matter, you may contact the City Attorney.
EXHIBIT 8
•
-24-
Ju..,. 21 2001 10:29PM
June l l , 200l
To. FeUow Coun�,;i!members
From: Mayor Mario Ambra
I received a memo from Vic:e Mayor Sally Lieber about a unidentified member ofthe City
Council who. sbc saya, mtempted to influence staffabout a pmject
Hermemo says that ouz-City
At1orney, Michael Martello, is going to COI!Sult the DA beca'USC there may have
been "a violabou
of ooe or more 5tak laW$.�
Maybe the Vier: Mayor is tailing !!bout .50ti'1COilC else:, but I will say that I� Mike
Mamilla r:arlier
�
who told me: that I could talk to Btaff, like any other citizen, about the
proposed dtvdopment ofproperty near me. I then did so to aet iafotmation and provide input
Naturally, [ did not tell staffmembers wbat to do.
Mario Arnbra
-25-
P1
CITY OF MOUNTAIN VIEW
MEMORANDUM
DATE:
June 22,2001
TO:
1:fario Ambra, Mayor
FROM:
Michael D, Martello, City Attorney
SUBJECT:
ISSUES SURROUNDING VICE MAYOR LJEBER'S MEMORANDUM
TO YOU OF JUNE 21, 2001
It was with both personal and professional regret that I found it necessary to set into
motion tho events that led to the i:nemonm.dum you received from Vice Mayor Ueber,
refcreti.ced abov�. The issue direCtlY coD.cerns the pres� you brought io bear on
memben ofthe City staff, ·including the Gity Manager and City Attomey, relative to yom:
interest in acquiring the parccl 9fproperty adjacent to your property. The purpose ofthis
memo iS to set forth our viow as to how that particular isS'Ilc will be addrCsed
s in the
immediate future and how City staff-will continue to asSist yol:l in your rqlc as
councilmember and Mayor.
·
First, you should not discuss illsues related to the investigation directly or indirectly with
anY City staffmember, includin_g the City Attorney or City Manager and they Will not
discuss siu:no with you. Secondly, it is important that you consider securing 'your own
legal counsel Vljtb regard to these issues. Thirdly, with regard to tho sclW:IuJ.ed
completion ofthe City Manager IUld City Attorney employment cvaluatioDs (Juno 27,
2001), it will be important for }'!)U to seek the advice of-your own independcn.t. legal
counsel if you plan .to participate in tho closed sessions relative to those walw.tions.
Because tliose position:� are principally involv�d in tl:i.e investigation befng conducted by
an outside agency, you may have a conflict ofinterest under various state laws, including
the Political Reform Act and the·common law doctrine of conflict ofintetts:t.
·
Finally, it is impoitant that I as City Attorney and Kevin DUggan. City Manager remain
available to help you in your continUing role as member of the City Council. Ta that end,
bot!). the City Manager and I, ·as well as other members of the staff, will continuo to Silsist
you in the same professional manner as you fulfill your obligatioris to tho residents of
MoliD.tain View, subject of course, to the above-stated limitations.
If you have any questions with regard to the above, except as Stated, please do not
hesitate to contact me,
·
·
.
Michael D.
City Attorney
.
artello
cc: City Council, City Manager
26
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1
GEORGE KENNEDY, DISTRICT ATTORNEY
Bar Membership No. 52527
William W. Larsen, Assistant District Attorney
3 Bar Membership No. 37560
County Government Center, West Wmg
4
70 West Hedding Street. s• Floor
5 San Jose, California 95110
Telephone: (408) 792-2703
6
Attorneys for tbe People.
2
7
B
9
10
SUPffiUOR COURT OF CAL!FORNIA, COUNTYOF SANTA CLARA
TilE PEOPLE OF TilE STATE OF CALIFORNIA,
Plamtifl;
II
12
V9.
NO. 210676
18
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15
JUDGMENT OF
REMOVAL
MARIO WU!E AMBRA.
(Gov. Code, § 3072)
Defendant.
16
I
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18
The defendant, MARIO LOUJE AMBRA, having been convicted by jury on April
19
JL 2002, of violating Government Code, § 3060, upon a verdict of guilty that he committed
20
knowing and willful misconduct in office by violating Mo1Dltain View City Charter sections
21 60711604 and the judgment having been entered upon the minutes;
22
IT IS HEREBY ADIUDGED AND ORDERED <hat the defendan� MARIO
23 LOUIE AMBRA. is forthwith removed from the Office of Councilperson for the City of
24
25
26
Mountain View, California
JOHN F. HERLIHY
ated: A[1ril L 2002,'l· n.,f m.
John F. Herlihy, Superior Cowt Judge
EJS.I!IBIT C
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2
a
4
.5
6
Bar Membership No.
County Government Center, West Wing
70 West Hedding Street, 5th Floor
San Jose, California 95110
Telephone: (408) 792-2703
Attorneys for the People.
,
SuPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
8
9
10
52527
Bar Membership No. 37560
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
II
NO. 210676
"
l3
1<
15
NOTICE TO APPEAR
MARIO LOUIE AMBRA
TO ANSWER ACCUSATION
Defendant.
(Govmunent Code.
§ 3063)
16
1
1 'l NOTICE IS HEREBY GIVEN, pursuant to Government Code, § 3063, a copy of an
18
19
20
21
22
::
"
accusation against MARlO LOUIE AMB RA by the Santa Clara County Grand Jury, dated
------�'
October 30,
2001, alleging knowing, willful and conupt misconduct in office, in viOlation of
Government Code,
87toc
§ 3060, having been served upon MARIO LOUIE AMBRA on November
I , 2001, HE IS NOW REQUIRED TO APPEAR on NOVEMBER
I :93
f
:z.
,
J!L_, 2001, at
p.m . in the Superior Court of Santa C1ara County, Hall ofJustice, Department
I
190 W. Heddffig Street, Som Jose, California, t� answer th�cus�.
Dated: November
d1i.L. ·�
1, 2001.
-l.4
William W. Larsen
26
Special Assistant District Attorney
EXHIBIT
•
28
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Bar
Membership No. 52527
2
3 Bar Membership No. 37560
County Government Center, West Wing
4
70 West Hedding Street, 511. Floor
s San Jose, California 95110
Telephone: (408) 792-2703
6
Attorneys for the People.
'
SUPERIOR COURT OF CALIFORNIA. COUNTY OF SANTA CLARA
8
9
THE PEOPLE OF THE STAT!! OF CALIFORNIA.
10
Plaintiff;
11
vs.
12
13
NO. 210676
ACCUSATION
1 4 MARIO LOUIE AMBRA,
15
16
1
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Defendant
The Grand Jury ofthe County ofSanta Clara,
19 MARIO WUIE AMBRA.
20
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(Gov. Code, § 3060)
a duly eJected
State of California, hereby accuses
and acting councilperson for the City ofMountain
View, in the County of Santa Clara, California,. ofknowing. willful and conupt misconduct
in
office, in vjolation of Government Code section 3060,
committed as follows:
-------:COUNTONE
That on or about and between April !, 1997 and August 5, 1999, the said MARIO
LOUIE Al\.ffiRA, a duly eJected and acting councilperson for the City of Mountain View, in
'
e County of Santa Clara, California,. did knowingly, willfu.ly
l and corruptly attempted to
-29-
t
use his official position, as said councilperson, to influence a governmental decision in which
2
he knew and had reason to know he had a financial interest. in violation of Government Code
3
sections 87100/91000, to wit Urging City of Mountain View officers and employees,
4
including City Attorney Michael Martello, City Manager Kevin Duggan, and Senior
5
Assistant City Attorney Jannie Quinn, to conduct city code violation enforcement
6
proceedings regarding the premises located at 2060-2066 Plymonth Street, Mountain View,
7
California.
8
9
10
11
12
lS
14
15
16
17
18
CQ!JNT1WO
That on or about and between June 1, 2000 and September 30, 2000, the said
MARIO LOUIE AMBRA, a duly elected and acting councilperson for the City of Mountain
l and conuptly
View, in the CoUD.ty of Santa Clara, California, did knowingly, willfu.ly
attempted to use his official position. as said councilperson, to influence a goWlllDlental
decision in which he knew and had reason to know be bad a financial interest, in violation of
Government Code sections 87100/91000, to wit: Demanding. directing, and urging City of
Mountain View officers and employees, including City Attorney Michael Martello, City
Manager Kevin Duggan. and Zoning Administrator Whitney McNair, to cause an application
with the City of Mountain View for a tow yard to be permitted on the property located at
2019-2025 Leghorn Street, Mountain View, California. to be denied.
19
20
21
COUNT THREE
That on or about and between June 1, 2001 and Septemb er 25, 2001, the said
22
23
View, in the County of Santa Clara, California, did knowingly, willfully and corruptly
24
attempted to use
25
decision in which be knew and had reason to know he had a financial interest. in violation of
his
official position, as said councilperson, to influence a governmental
,,
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Government Code sections 87100/91000, to wit: Demanding, directing, and urging City of
2 Mountain View officers and employees, including City Attorney Michael Martello, City
3
Manager Kevin Duggan, Principal Planner Michael Percy, and Acting Zoning Administrator
4
Muy Fulford to cause an application with the City ofMountain View for a development
5
review permit and conditional use permit for a 12,000 square foot research and
6
development/office building to be located at 2019·2025 Leghorn Street. Mountain View,
7
California, to be
denied.
8
COVNT FOUR
9
10
That on or about and between April I, 1997 and September 25, 2001, the said
11
12
View, i n the County of Santa Clara,
"
"
I;
16
17
18
19
20
California, did knowingly, and willfuUy interfere with
the execution by the MomrtainView City Manager of the manager's powers and dnties, and
ordered directly and indirectly, the removal ofthe Mountain View City Manager and the City
ofMountain View Planning Director and failed to deal with the city's administrative
solely through the city manager and gave order:s to subordinates ofthe city manager, in
violation ofMoWlt:ain View City Charter sections 607/1604.
Presented this 30• day of October. 2001. by the Grand Jwy, at least
concurring therein.
21
22
service
Dated: October 30, 2001
"
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25
26
3
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12 grandjurors
NAMES OF WITNESSES EXAMINED BY THE GRAND JURY
ON THE PRESENTMENT OF THE FOREGOING ACCUSATION
1
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a
•
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6
,
8
9
10
ll
I.
ANGEE SALVADOR
2.
RONALD GEARY
3.
KEVIN DUGGAN
4.
MICHAEL MARTELLO
5.
JANNIE QUINN
6.
MICHAEL PERCY
7.
MARY FULFORD
8.
WHITNEY McNAIR
9.
WILLIAM JOSEPH BROCKMAN
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l5
16
l7
lB
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The Family Trust
A copy ofthe family trust, as we know it to exist, is attached. The trust provides the
maker of the trust, Concetto Ambra, with all powers and names Concetto as the trustee.
The trust, however provides that if Concerto ever ceases to act as trustee, the chlldren,
Mario and his sister, Cathy Ann Ambra, will step in and act as trustee (Trust, Article I I ) .
A copy of Mr. Ambra's Form
700 for 2001 is also attached. Mr. Ambra completed this
form with the assistance of outside counsel from the law finn of Olson, Hagel, Waters
and Fishburn, in particular Robert Leidigh and Gene Hill. In conversation with
Mr. Leidigh, he indicated that his assistance was based on information given to him
orally by Mr. Ambra and not on any independent scrutiny of the trust. The fact that the
Form 700 was filled out as it was, after consulting with outside counsel, indicates that
Mr. Ambra advised counsel that he believed that he had a financial interest in the
property.
Mr. Ambra's Representations As to the Trust
On his Form 700 and in countless interactions with City staff and others, Mr. Ambra
maintained that the property upon which he and his family lived was his property; he
often referred to his father's property, but was quick to indicate that he (Mario) had
complete control of the property (including the right to se!Vdevelop) and that his father
was involved only with respect to the small parcel occupied by his father's residence.
On June 18, 2001, immediately prior to my reporting this matter to the District Attorney,
Mr. Ambra asked me whether he could attend a public hearing for the proposed office
building on the aunt's property. To ascertain whether or not he was entitled under
Section 18702.4 to attend the public hearing, I questioned him to confirm that he indeed
owned the "Ambra" property. Having never reviewed his Form
700, and based on the
dozens and dozens of representations he had made to me (and others) that he owned the
property, I was surprised to learn the property was held in trust. Questioning him further,
he indicated that he was the trustee and, in fact, controlled the trust and could do anything
he wanted with the trust property.
I therefore gave him the advice that on June 21 he
could attend the public hearing, provided he not identify himself as a Councilmember and
1
participated only as a member of the public.
'
Mr. Ambra did not attend lhat hearing; rather, after the hearing ended and the public cleared out, he went
into the hearing room and sat down with the staff who cooductcd the hearing, sharing his views and his
requests (e.g., property assemblage). See Exlub!t F.
EXHIBIT E
AMENDED IN SENATE FEBRUARY
Senate Constitutional Amendment
7, 2003
No. 1
Introduced by Senator Burton Senators Burton and McPherson
December
2, 2002
Senate Constitutional Amendment No. l�A resolution to propose
to the people of the State of California an amendment to the
Constitution of the State, by amending Section 3 of Article I thereof,
relating to access to government information.
LHi!SLATIVE COUNSEL'S DIGEST
SCA I , as amended, Burton.
Access to government information.
The California Constitution provides that the people have the right
to instruct their representatives, petition government for redress of
grievances, and assemble freely to consult for the common good.
Various provisions of existing law, including, among others, the
California Public Records Act, the Legislative Open Records Act, the
Bagley-Keene Open Meeting Act. and the Ralph M. Brown Act,
provide, with some exceptions, for public access to government records
and meetings of govenunent bodies.
This measure would provide that the people have the right qfaccess
to information concerning the conduct of the people's business--ffi-tt
fundamental and neeessarj rightofeVCf)'13erson inthis state. It wo�:�:IB
pro'<'ide that, CJteeflt as otherwise !3f0'•ided in the Califomia
Constitution, the people have a rightto attend, ol:tscP•:c, B:fld l:tc hcafd in
themeetings ofeleeted andappointedpublicbodies, andto inspect an8
ol:ttttitteepies efreeercls l'tltlde erreeei;edin:eenneetiettwith tlte effieial
business ofany public hody, agency, officer, or Cll'lfl,loyec or anyoae
tteting enl:tehttlfefttpttl:tliebet!y, ttgene), effieer, oremployee. It would
provide that the meetings of puhlic hodies and writings of puhlic
98
SCA I
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officials and agencies shall be open to public scrutiny and that the right
of access shall be effectuated whenever it does not harm any
investigation b:v a law enforcement agency or an overriding public or
private interest.
This measure also wouldprovide that any statute, court rule, or other
authority, including those in effect on the effective date ofthis measure,
shall be broadly construed ifir effectuates the people S right ofaccess,
and narrowly construed if I! limits the right ofaccess. A statute, court
rule, or other authority adopted ajler the effective date ofthis measure
that limits the right of access shall be adopted with findings
demonstrating the interest protected by the limitation and the needfor
protecting that interest.
This measure also would provide that nothing in its provisions
supersedes or modifies the right to privacy guaranteed by the California
Constitution, 01 lifflits the ability of the Legislature to provide b)'
statute, ortheJudicial Ceuneil te previt=.le By FHie flat iAeeFtsisteflt with
statute, for the proteetien ofpersenal privacy affects the constrnction
ofany statute, courl rnle, or other authority to the extent that it protects
that right to privacy.
The measure would also authoriz:e the Legislature to previt=.le by
statute aFtt=.l the Jut=.lieial CeuAeil topro·,itie b) rule fer ether limitatioHs
OH the right ef access to iHformation concerning the conduct of the
peeple's business solely to protect public safet) orpri'1ttte prepert), te
ensurethe fairal'lt=.l effeeti-..e atimiAisffiltiol'l oflaw, orto preservepublic
fuHELl B:l'ltiresources. Itwould provide thatanapplieatioo ofanyofthese
limitations byany public botiy, agcflC), officer, eremployee, oranyone
actingon behalfofa pttblie hotiy, agency, effieer, oremployee te deny
tt rigftt ttntierthese provisions shall Be BaseS en partiett!B.fiz:e8 fiHtlings
that a speeifietl hB:rm to the puBlic interest eB:nnot be a·<"erteti B) a
reasonaBle alternative, HFtless the iflformatiofl: sought is a eenfit=.lefltial
communication betwecfl aft attorney attd his orher client eonveyetlto
proYitle or obtain legB:I ad·<'iee orrepreseHtation.
This measttre wmtl8 estaBlish speeittl proeetlttres for B:eeess to peace
officerpersoftflel records. It 'Noul8 alsoprovide that itsprovisions shall
Hotaft'eet public access tojttdieial rroeeet=.lil'lgs orthe reeer8s efjutiieial
flf6Cee8iAgs.
The measure would proviSe that existing staltttes ana rules ofeottrt
limiting access to infOrmation eeneeming tke eofl:dttet ofthe �ee�le's
businessshall remaifl ifl effect, ttl'ltil, al'ld e)tCCfltto the extent that, they
98
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SCA I
are ameAclecl. rerealetl, erjttclieially determinedto be ineen�sistef!t with
this measure.
Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated
local program: no.
1
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Resolved by the Senate, the Assembly concurring, That the
2003--04 Regular
Session commencing on the second day of December 2002,
Legislature of the State of California at its
two-thirds of the membership of each house concurring, hereby
proposes to the people of the State of California that the
Constitution of the State be amended by amending Section 3 of
Article I thereof, to read:
SEC.
3.
(a) The people have the right to instruct their
representatives, petition goverrunent for redress of grievances,
and assemble freely to consult for the common good.
(b) (1) Access to iHfoffl'latioH eeHCCffliHg the eoHtittet efthe
{h) {1) The people have the right of access to infOrmation
concerning the conduct ofthe people �· business, and, therefOre, the
meetings ofpublic bodies and the writings ofpublic officials and
agencies shall be open tu public scrutiny. This right ofaccess shall
be effectuated whenever it does not harm any investigation by a
law enfOrcement agency or an overriding public or private
interest.
(2) A statute, court rule, or other authority, including those in
e.IJCct on the effective date of this subdivision, shall be broadly
construed !fit furthers the people S right ofaccess, and narrowly
construed if it limits the right of access. A statute, court rule, or
other authority adopted afier the effective date qfthis subdivision
that limits the right of access shall be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
(3) Nothing in this subdivision supersedes or modifies the right
q{privacy guaranteed by Section I or affects the construction of
any statute, court rule, or other authority to the extent that it
protects that right to privacy.
flCOflle's l:lttsiHess is 1:1 ftmdf:lmeHtal anti necessaf)' Fight ofC'teF)
person inthis State. Public 1:1gencies and officers existto aiti in the
eo!'ltitlet of the people's busiHess, aHti their ttetioHs ttnti
tielibeFatieHs shallhe epen te puhlie scrutiny. Tkcrefere, eRCC)"tas
provitieti pursuttHt to this Constitution, tkc people have a Fight ta
98
SCA I
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attend, observe, ancl Be Aearcl ifl tke ffieetiflgs ef elected and
appointed public bodies, and to inspect ancl ol:HaiH copies of
reeerd:1 ffl:ttcle er reeei\·ed in connection with the effieial business
ofanypul>lie bo8y, ageHey, effieer, orempleyee, oranyone acting
Behalf ef a f'ttblie Betty, agency, officer, or employee. For
J"tlfflo:lCSefthis :mfitlivisimt, irtfurmtttionconcerning the eondHet
ofthe people's business includes, but is Aot liFfliteEito, infeRftatien
regaffiiHg the offieiftl perfeffllanee or prefessional qualifications
ofelected officials or ofappointee officials who have, or appettr
lo lhe ruBiie to ha'e, stthstantial respoHsihiliey for, orcontrol over,
the eeJHclttet ef governmental affairs, and informatioH regar6ing
the l"refessieHttl fll:lttlifietttiens efeftl'lclidtttes erftPI"lieants forthese
elective oraflflOintive flOSitions. WkeA a reEJ:HCSt seeks iHffimmtien
eoneerHing the effieittl flerformanee orflrofessional EJ:Uttlifiea.-tioAs
ofa person appointed as a peace officer, B:Hy adjHdieatioH ofthe
reEJ:HC.Jt shall eOiflJ'I)· .,,itA ttfly rroeed:Hre gw�erRing disemcry or
disclosure enacted by the Legislature by statute.
(2) Nothing in this subdivision suflersedes the right toflrivaey
guafftnteecl By SeetioA I or limits the aBility ofthe Legisla-ture to
provide by statute, oroftheJuclieial Collfleil toprovide byrule not
iAtJOI'I::!isteflt with statHte, fur the protection ofpersonal privacy.
(3) The Legislature may pmvide by statute, and the Judicial
CeuAeiI mayfH'e'>iclebyftlle FISt iAeet'lsistefltwith sttl:tute, furother
limitations on the right ofaccess to iHformation concerning the
eefldHet efthe people's Business solely to protect public safetyor
prhale f:)fOf:)Cft), to CflSHI'C the fair ami effee
eti\ adm:inistratiefl ef
law, erto flrCSCfVC f'HB!ie fHflftS aHd fCSOtlfCCS.
(4) Aflyapplieatien ofa limitation authorizecl underparagraph
(3) by ttft)'" public bocly, agency, officer, or employee, or flfi)'OHC
aetiHg oaBehalfofaruBlieBo6y, ageftey, officer, orCffifl,loyee to
Sen) a right specified in paragraph (l) shall be based on
flflftieularized fiHcliAgs tAa.-t a sreeified hafffi to the )'}Ublie iflterest
cannot Be averte6 h)' a reasoHahle ttltefflative, HHiess the
information sought is a eonficleHtial eommuHieation betweeH an
atteffley ttHd his erherelieflt eoMveyedte previae eroBtaifl legttl
advice orrepresentation. A denie.! ofa rightspeeitie6 inparagmph
(I) Basecl OR particularized fiHdiflgs tftay flOt Be Broader in score
or dHrtttiofl thafl necessary te aveft the speeitie€1 hafltl.
(5) This sttbdi·1ision shall n:ot affect pHBlie access tojHdieittl
proeeeftings orthe records ofjuftieial proeeeftings.
Ofl
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(6) All stttttes anti R:llesefeourtlimitingaccess to iAfoffflatien
concerning the conduct efthe f'CBf'le'shusiness that are in effect
enthe opel'fltive date efthis su(:,dhisiel'l shall remain infaree until,
and exee{:lt te the extent that, they are ameHtlecl, ref)ealed, er
jHtlieially cleteffflil'letl te he ineemsistentwith this subdivision.
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when the city`s interest and those of the elected official collide

Transcription

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