Section 307 of the OMA allows executive sessions for “individual, salaried public officer or employee”. I do not believe that a contract attorney will qualify for that definition. A flat rate retainer is not a salary and an attorney charging by the hour is on wages (VERY GOOD WAGES – BUT WAGES). Therefore, the personnel provisions will not get you there.
So the question becomes “IS THERE ANOTHER PROVISION TO ALLOW EXECUTIVE SESSIONS with a contract attorney?”.
Section 307B2 allows them for union negotiations (many contract attorneys are doing the negotiations).
Section 307B3 covers purchase and appraisal of real property. Is the attorney doing your purchasing?
Section 307B4 allows for confidentiality between the council and its attorney regardless of the method of payment if the subject is a claim or litigation.
The fun one is section 307B7 involving violations of confidentiality under state or federal law. Remember, that the original attorney client privilege between the council and its attorney was based on case law and the constitution. Can you argue that this provisions preserves that case law exemption from openness. I have not seen it done, but there is a good faith argument. Just how badly do you want to make new la?
Mike Vanderburg
Sent from Mail for Windows 10
From: Chuck Thompson
Sent: Tuesday, March 10, 2020 1:44 PM
To: oama@lists.imla.org
Subject: [Oama] FW: Executive Session Items
I’m forwarding this question along to the list:
Can the council discuss a contract city attorney in executive session?
Sent from my Sprint Samsung Galaxy Note9.
Section 307 of the OMA allows executive sessions for “individual, salaried public officer or employee”. I do not believe that a contract attorney will qualify for that definition. A flat rate retainer is not a salary and an attorney charging by the hour is on wages (VERY GOOD WAGES – BUT WAGES). Therefore, the personnel provisions will not get you there.
So the question becomes “IS THERE ANOTHER PROVISION TO ALLOW EXECUTIVE SESSIONS with a contract attorney?”.
Section 307B2 allows them for union negotiations (many contract attorneys are doing the negotiations).
Section 307B3 covers purchase and appraisal of real property. Is the attorney doing your purchasing?
Section 307B4 allows for confidentiality between the council and its attorney regardless of the method of payment if the subject is a claim or litigation.
The fun one is section 307B7 involving violations of confidentiality under state or federal law. Remember, that the original attorney client privilege between the council and its attorney was based on case law and the constitution. Can you argue that this provisions preserves that case law exemption from openness. I have not seen it done, but there is a good faith argument. Just how badly do you want to make new la?
Mike Vanderburg
Sent from Mail for Windows 10
From: Chuck Thompson
Sent: Tuesday, March 10, 2020 1:44 PM
To: oama@lists.imla.org
Subject: [Oama] FW: Executive Session Items
I’m forwarding this question along to the list:
Can the council discuss a contract city attorney in executive session?
Sent from my Sprint Samsung Galaxy Note9.
