CiViK asked to destroy all copies of the Hodgson Memo
At the July 1 Kirkland City Council quasi-judicial hearing on the appeal of the Bank of America development, Councilmember Tom Hodgson attempted to return the application to the Design Review Board, but it wasn’t to be — he didn’t have the necessary votes. His frustration with the proceedings was evident on his face when he stated, “I think this entire process, and I’ll say it again, has been unfair to the appellant.” What happened next shocked everyone in attendance: claiming a waiver of his attorney-client privilege, Councilmenber Hodgson handed an envelope containing documents to CiViK attorney Richard Aramburu.
Kirkland Views has requested copies of all recent communications between the City of Kirkland and the two parties involved in the quasi-judicial appeal of the Bank of America project.
In response to our request, we received a trail of letters which outlines City Attorney Robin Jenkinson’s conclusion that Councilmember Hodgson’s attempt to waive his attorney-client privilege was “unilateral, unauthorized and not an effective waiver.” Ms. Jenkinson then instructs CiViK attorney Richard Aramburu to destroy all copies of the Hodgson Memo, identify anyone else who was given copies and return the original to the City.
Below we have published excerpts from three letters which shed light on a story heretofore untold. We encourage you to read the letters in their entirety and consider the context in which they were written. (annotations and/or highlighting on the letters are my edits -Rob)
In this letter dated July 2, 2008, City Attorney Robin Jenkinson requests CiViK attorney Richard Aramburu destroy all copies of the Hodgson Memo (referred to as “the Memo”) that Councilmember Tom Hodgson passed to him during the July 1 quasi-judicial hearing on the Bank of America appeal. Ms. Jenkinson’s letter states,
“Mr. Hodgson’s waiver of the City’s attoney-client privilege was unilateral, unauthorized and not an effective waiver. It was clear at the time Mr. Hodgson provided you with the Memo that his attempted waiver was opposed by a majority of the Kirkland City Council. Accordingly, the City requests that you do the following:
- return the Memo that Mr. Hodgson provided you last night to me;
- destroy any electronic or paper copies of the Memo that you have made in the meantime; and
- disclose the identity of anyone to whom you have provided copies of the Memo.”
In response, CiViK attorney Richard Aramburu replied with this letter on July 7, 2008, stating in part,
“I do not agree with the points that you have raised with respect to privileged communications. However, to focus this matter on the merits, CiViK responds to your three requests as follows:
- My client has asked that we return the memo to Mr. Hodgson, as he was the one who provided it to us. It is being sent via legal messenger to his office address.
- Regarding your request to destroy any electronic or paper copies of the memo, I have done so as has the one other recipient (see item 3).
- You have asked me to disclose the identity of anyone to whom I have provided copies of the Memo. I requested the same of you in my letter of June 24 (”identification of all persons who received a copy of the items identified and the date such copy was provided”) and in your response of June 30, you declined to provide this information. That stated, I will respond to your question and inform you that a copy of the memo was provided to my client on July 2. The recipient was only one person, Bea Nahon. Ms. Nahon affirms that she has not provided a copy of the memo to anyone by any means, and further, Ms. Nahon affirms that she has also destroyed any electronic or paper copies of the memo.”
On July 8, the City Attorney acknowledged Mr. Aramburu’s letter and thanked him for returning the attorney-client privileged memo. In response to a request by Mr. Aramburu, Ms. Jenkinson’s reply listed the names of all persons who were provided with the attorney-client privileged memo:
- City Council members;
- Dave Ramsay, City Manager;
- Eric Shields, Planning Director;
- and recently, outside counsel for the City.
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13 Responses to “CiViK asked to destroy all copies of the Hodgson Memo”
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Thank you for uploading both letters in full.
My impression is that the City’s memo was like a game of “jeopardy” for the citizens: Council, here is the answer from the City Attorney before you hear the questions - the evidence -itself.
Whether or not the memo was privileged, the issues raised by Civik’s attorney casts doubt as to fairness. This is a quasi-judicial appeal which should be as he states “fair and unbiased, decided on the merits of the case and the evidence presented, and not diverted or influenced by unfounded fears or one-sided argument.”
Did the City’s staff share the memo with others? Aramburu asked the question but the City Attorney did not answer it.
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Where does it all end!? Unbelievable!
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“whether or not the memo was priviledged”??? You are kidding, right? All legal references make it very clear it was - look it up. The Civik attorney should never have taken the document and he knows it.
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Correct - the “whether or not” was rhetorical, my comment was about the fairness of the memo itself.
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At this point, I hope that Civik’s attorney is dismissed for his clear mis-conduct, and that this ends up in municipal court where it now belongs. Our city council simply can’t be impartial at this point, and it’s clear that the process has dissolved.
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Any party (such as City Council) that has legal representation is entitled to confidentiality in its communications with their counsel. Transparency of public process does not trump that. Coiuncil has executive sessions virtually every meeting to handle matters that are kept private for assorted reasons.
Mr. Aramburu didn’t appear to do anything wrong to me. He is an advocate for CiViK, so he is supposed to act in their best interests, while staying within the law. Hodgson gave him the envelope, and apparently no one had authority to stop or reverse that.
On the other hand, Tom Hodgson was out of line. He did not have the authority to hand it over, but he did anyway. He had the option to discuss the matter further with CIty Council or with the City Attorney, but he plunged in. This letter from Ms. Jenkinson asserts the city’s legal position that he was wrong.
It is one thoing to vote on a matter, it is another to disregard the Council majority’s wishes.
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The Ghost of Peter Kirk…I’m not so sure that Mr. Aramburu didn’t do anything wrong. I believe he was present at the time and had to have clearly heard that the Council (minus Mr. Hodgson) considered the memo to be “in confidence” between the city attorney and the Council, collectively and protected under ACP. Regardless of who Mr. Aramburu represents, I don’t think any attorney today could “leap” across a court room and grab material protected by ACP, read it nonetheless, and be “let off”. I believe Mr. Aramburu needs to be disciplined by the WA State BAR Association for his conduct as it was considered a quasi-judicial proceeding, it’s a judicial proceeding nonetheless. In addition, I don’t believe anyone on the council is an attorney and there was only one other attorney in the room at the time so Mr. Aramburu was in a clear position to *not* have abused his position of advantage, something he failed to do.
On another point, I was under the belief that the memo was supposed to be protected by ACP between the City Attorney and the Council, this was clearly not the case as other members of the city staff have reviewed it as well, e.g., Eric Shields, Ramsey, etc.
Regarding the response Aramburu gave back to the City Attorney, I found it interesting that Mr. Aramburu gave a copy to Bea Nahon and while it’s clear to me that Nahon did not distribute any copies “by any means”, it doesn’t explicitly say that she did not verbally transmit any aspect of the memo. I suppose it boils down to what is meant legally by “in any form”.
At this point, I tend to agree with “Better than TV”, that this matter now belongs in municipal court and I believe the City knows it’s going there as one of the recipients of the memo (shared by the City) is “outside counsel”.
Perhaps regionally this case will be known as, “Kirkland City Council Uncorked!”
EOM
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[...] see: Choas in Kirkland City Chambers, Request for documents from City of Kirkalnd denied. and CiViK asked to destroy all copies of the Hodgson Memo. A flurry of reader comments accompany both [...]
[...] please see: Choas in Kirkland City Chambers, Request for documents from City of Kirkalnd denied and CiViK asked to destroy all copies of the Hodgson Memo. A flurry of reader comments accompany both [...]
Is the council the client (as referenced in ACP) or is the city the client?
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The City Council is having a special executive session that may well be to address the issue of Hodgson’s behavior:
http://www.ci.kirkland.wa.us/depart/council/Agendas/agenda073008.htm
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Thanks Ghost of Peter Kirk for your speedy comments. You beat me to the draw! Good job.
Rob
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Hey Rob,
How about a poll on how the Council handles this affair? Maybe some suggestions from the public as to what should be done? Does anyone knwo the what if any the law says are possible punishments?
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