The Hodgson Memo

To say that the events surrounding the City Council quasi-judicial hearing of July 1, 2008 have been bizarre would be an understatement. Kirkland has been witness to high drama in the Council chambers the likes of which we hope to never see again. For background on these events, please see: Choas in Kirkland City Chambers, Request for documents from City of Kirkland denied and CiViK asked to destroy all copies of the Hodgson Memo. A flurry of reader comments accompany these articles.

During the July 1 City Council meeting the quasi-judicial hearing of the Bank of America appeal was re-opened to hear a modified proposal from SRM Development (Applicant). Following SRM’s presentation, CiViK attorney Richard Aramburu spoke before the Council. He requested the Council waive their attorney-client privilege and allow CiViK to review a memo that he claimed was inappropriately presented to Council prior to the hearing. The City Attorney would not release the memo without Council approval. Mr. Aramburu claimed the memo to the Council was from the City Attorney’s office and it discussed the potential legal liability that could result from the hearing. Mr. Aramburu argued that the legal advice in that memo should not have been given as it prejudiced the Council prior to the beginning of the hearing.

Councilmember Tom Hodgson agreed to a waiver of the Council’s attorney-client privilege and to release the memo stating, “this whole process, and I’ll say it again, has been unfair to the appellant.” Only Mayor Lauinger and Councilmember Greenway agreed with the wavier of the attorney-client privilege. What happened next was, in essence, Councilmember Hodgson’s defiance of the will of majority of the Council — he argued he could waive his personal attorney-client privilege and release his personal copy to the appellant. He then handed an envelope to CiViK attorney, Richard Aramburu. Enclosed was what is being referred to as the Hodgson Memo.

Following the hearing, the City Attorney requested the destruction and/or return of the Hodgson Memo and the names of any persons who had copies. Most citizens were shocked by what they witnessed in Council chambers. This email was received by the City suggesting the level of mistrust that exists as explained by one citizen:

Many questions remain unanswered

This is a disturbing course of events to say the least. Regardless of the outcome of this hearing, there will be many more losers than winners. Many unanswered questions remain as the people of Kirkland watch this painful process unfold.  Here are a few questions that have yet to be answered:

1. There is a real possibility that the City could be sued in court as the result of this hearing. Is it appropriate for the City Council to receive legal advice about the City’s potential legal liability prior to a hearing in which they will serve as judge and jury?
2. Councilmember Hodgson attempted to waive his personal attorney-client privilege and released the memo to the Appellant. He did so without the consent of the majority of the Council. If Councilmember Hodgson’s attempt to waive his privilege was invalid, what are the consequences of such an act?
3. When one member of the Council acts (in this case one Councilmember shared evidence with only one of the two parties of a lawsuit) is it not the same as if the entire Council acted?
4. How can even the appearance of fairness be maintained if Council is treating each party before them differently?
5. Councilmember Hodgson stated, “what I would like to do is address Mr. Aramburu’s concerns about the anonymous letter, and discuss not only the disclosures that the Mayor and myself made, but further disclosures that should be made based on that letter.” What further disclosures should have been made and by whom?
6. When discussing the issue of waiving the Council’s attorney-client privilege and releasing the memo, Councilmember Hodgson later said, “The reason I am concerned here is because I think this entire process, and I’ll say it again, has been unfair to the appellant. The anonymous letter was taken extremely seriously. It was written by some coward who we will never know, but the City took it seriously — That was out of order, that was out of process. I responded to it responsibly. The Mayor responded to it responsibly, but others did not. There is more to the story, and I would like to open that up to further discussion if we continue this hearing.” Was the City “out of order” or “out of process” in how it dealt with the anonymous letter? Who did not deal with the anonymous letter responsibly? How has this entire process been unfair to the appellant? Is there more to the story? If so, what is it?
7. Readers of these pages have pointed out some excellent issues as well. How is the Council’s attorney-client privilege in tact when the City itself has shared the privileged Hodgson memo with others, namely the City Manager, the Planning Director and now outside Council? Have those copies been destroyed? If so, why? If not, why not? Has the majority of the Council voted to share their privileged memo with these other parties? If so, when did this vote take place?

These are very serious questions as they address issues not asked by some anonymous letter writer. Many of these issues were raised by an elected official acting as judge and jury during a City Council quasi-judicial hearing. The quotes of Councilmember Hodgson were taken directly from the City’s video of the July 1, 2008 City Council meeting.

According to City Attorney Jenkinson, Councilmember Hodgson’s attempt to waive his individual attorney-client privilege and release the memo was in defiance of the rest of the Council and invalid. CiViK has been handed a privileged memo from the dais. SRM Development has not been afforded the same privilege. Supplying a privileged memo to one party of a lawsuit and not the other cannot possibly be construed as just. How can even the appearance of fairness be maintained after such events? Yes the Hodgson Memo was returned and copies were destroyed, but you cannot put the genie back in the bottle. What’s done is done.

The City Council is seated as judge and jury during this appeal. Their responsibility above all else should be to the fairness of the process for the parties in the appeal. 

The Council unintentionally brought this mess upon themselves. It was a member of that body that, for reasons still unknown, passed the memo to one of the two parties before them.

Our City Councilmembers are not lawyers and I trust they are struggling with a difficult set of circumstances as best they can. The people of Kirkland need transparency in these proceedings. Destroying memos is not a good way to convey transparency in government. Doing so while sharing the vary same memos within City Hall certainly does not help with the appearance of fairness. These events are extraordinary.

As Councilmember Hodgson said in the hearing, “there is more to the story.”

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