Empathy List Archives

JW

Joe Weaver

Wed, Mar 2, 2022 7:05 PM

Counsel:

My firm represents several municipalities and public trusts. It is necessary on occasion to hold executive sessions to discuss pending litigation with the Council or the Board as the case may be. Title 25 O.S. § 307 (B) (4) references confidential communications between a public body and its attorney. Are other individuals, such as a City Manager, prohibited from the executive session? If not, does the presence of an individual(s), other than council members and attorney, waive the attorney/client privilege? Your thoughts will be appreciated.

Joe

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.net mailto:agbass@basslaw.net

[cid:image001.png@01D82E33.ED938EF0]
www.basslaw.net
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Counsel: My firm represents several municipalities and public trusts. It is necessary on occasion to hold executive sessions to discuss pending litigation with the Council or the Board as the case may be. Title 25 O.S. § 307 (B) (4) references confidential communications between a public body and its attorney. Are other individuals, such as a City Manager, prohibited from the executive session? If not, does the presence of an individual(s), other than council members and attorney, waive the attorney/client privilege? Your thoughts will be appreciated. Joe -------------------------------- Joe Weaver Attorney At Law 405.262.4040 405.262.4058 fax joe@basslaw.net<mailto:agbass@basslaw.net> [cid:image001.png@01D82E33.ED938EF0] www.basslaw.net 104 N. Rock Island Ave. P.O. Box 157 El Reno, OK 73036 NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

ML

Matt Love

Wed, Mar 2, 2022 10:06 PM

Joe,

My 2 cents - AC privilege would apply while the attorney is speaking with
their client, which in this case is the City. The City is an entity, so the
obvious risk would be if 3rd parties to the City were invited in. I think
that would not just breach privilege, but it also could turn the ES into an
unlawful one (if you aren't having confidential communications because the
third party is there, then how can you be in ES). In terms of which City
Officials can attend the session, I'm not sure it would be legally
decisive, but I would be guided by Rule 1.13 of the Rules of Professional
Conduct, particularly the comments to the rule. Essentially, you deal with
each official in their official capacity, so the question would be whether
the person's position and duties would be such that they would be in ES in
their official capacity.

I think there would be many instances where you could (and probably should)
have the Manager in ES to discuss a claim or lawsuit. But there may be
others where it wouldn't be appropriate because you could not have A/C
communications with that person (on behalf of the City) because of their
role in the issue or their lack of authority over the subject matter. I
think a Court would look very favorably towards the City on not finding a
waiver unless it was something pretty blatant in terms of it being obvious
that that particular person couldn't communicate with you on behalf of the
City in a A/C setting.

On Wed, Mar 2, 2022 at 1:07 PM Joe Weaver jweaver@basslaw.net wrote:

Counsel:

My firm represents several municipalities and public trusts. It is
necessary on occasion to hold executive sessions to discuss pending
litigation with the Council or the Board as the case may be. Title 25 O.S.
§ 307 (B) (4) references confidential communications between a public body
and its attorney. Are other individuals, such as a City Manager,
prohibited from the executive session? If not, does the presence of an
individual(s), other than council members and attorney, waive the
attorney/client privilege? Your thoughts will be appreciated.

Joe

Joe Weaver

Attorney At Law

405.262.4040

405.262.4058 fax

joe@basslaw.net agbass@basslaw.net

www.basslaw.net

104 N. Rock Island Ave.

P.O. Box 157

El Reno, OK 73036

NOTICE: The information contained in this transmission is or may be
protected by the attorney-client and/or the attorney work product privilege
and is confidential. It is intended only for the use of the individual or
entity identified above. If the reader of this message is not the intended
recipient you are hereby notified that any dissemination or distribution of
the accompanying communication is prohibited. No applicable privilege is
waived by the party sending this communication. If you have received this
communication in error, please notify us immediately by reply and delete
the original message from your system. Circular 230 Disclosure: To ensure
compliance with requirements imposed by the IRS, we inform you that any
U.S. federal tax advice contained in this communication (including any
attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or
(ii) promoting, marketing or recommending to another party any transaction
or matter addressed herein.

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Joe, My 2 cents - AC privilege would apply while the attorney is speaking with their client, which in this case is the City. The City is an entity, so the obvious risk would be if 3rd parties to the City were invited in. I think that would not just breach privilege, but it also could turn the ES into an unlawful one (if you aren't having confidential communications because the third party is there, then how can you be in ES). In terms of which City Officials can attend the session, I'm not sure it would be legally decisive, but I would be guided by Rule 1.13 of the Rules of Professional Conduct, particularly the comments to the rule. Essentially, you deal with each official in their official capacity, so the question would be whether the person's position and duties would be such that they would be in ES in their official capacity. I think there would be many instances where you could (and probably should) have the Manager in ES to discuss a claim or lawsuit. But there may be others where it wouldn't be appropriate because you could not have A/C communications with that person (on behalf of the City) because of their role in the issue or their lack of authority over the subject matter. I think a Court would look very favorably towards the City on not finding a waiver unless it was something pretty blatant in terms of it being obvious that that particular person couldn't communicate with you on behalf of the City in a A/C setting. On Wed, Mar 2, 2022 at 1:07 PM Joe Weaver <jweaver@basslaw.net> wrote: > Counsel: > > > > My firm represents several municipalities and public trusts. It is > necessary on occasion to hold executive sessions to discuss pending > litigation with the Council or the Board as the case may be. Title 25 O.S. > § 307 (B) (4) references confidential communications between a public body > and its attorney. Are other individuals, such as a City Manager, > prohibited from the executive session? If not, does the presence of an > individual(s), other than council members and attorney, waive the > attorney/client privilege? Your thoughts will be appreciated. > > > > Joe > > > > -------------------------------- > > Joe Weaver > > Attorney At Law > > 405.262.4040 > > 405.262.4058 fax > > joe@basslaw.net <agbass@basslaw.net> > > > > www.basslaw.net > > 104 N. Rock Island Ave. > > P.O. Box 157 > > El Reno, OK 73036 > > > > > > *NOTICE: The information contained in this transmission is or may be > protected by the attorney-client and/or the attorney work product privilege > and is confidential. It is intended only for the use of the individual or > entity identified above. If the reader of this message is not the intended > recipient you are hereby notified that any dissemination or distribution of > the accompanying communication is prohibited. No applicable privilege is > waived by the party sending this communication. If you have received this > communication in error, please notify us immediately by reply and delete > the original message from your system. Circular 230 Disclosure: To ensure > compliance with requirements imposed by the IRS, we inform you that any > U.S. federal tax advice contained in this communication (including any > attachments) is not intended or written to be used, and cannot be used, for > the purpose of (i) avoiding penalties under the Internal Revenue Code or > (ii) promoting, marketing or recommending to another party any transaction > or matter addressed herein.* > -- > Oama mailing list -- oama@lists.imla.org > To unsubscribe send an email to oama-leave@lists.imla.org >

JM

Jon Miller

Wed, Mar 2, 2022 10:23 PM

Joe,

With regard to potential or pending litigation, I believe that potential waiver of privilege under the Open Meeting Act could occur based on the same standard for what it would take to waive the privilege in an ordinary circumstance. The city council is the "client," and involving anyone else in a privileged communication could risk waiver. In other words, if a person has no need to be present then they should not be a party to the discussion. Since the city council is not directly involved in the management of the lawsuit there generally is no reason for any witness or the person alleged to have participated in challenged conduct to be present in order for the city council to take wherever action is requested of it on a management/decision-making level. As a general rule, I believe the city manager can be present without waiving the privilege since he is the equivalent of the "president" of a company and is the person responsible for the day to day activities of the city. That said, I can't think of any occasion where a third party who was not an outside attorney was present in an executive session to discuss pending litigation (or where that need would arise).

I will be interested to see if anyone has a different view.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.

From: Joe Weaver jweaver@basslaw.net
Sent: Wednesday, March 2, 2022 1:05 PM
To: oama@lists.imla.org
Subject: [Oama] Executive Sessions

Counsel: My firm represents several municipalities and public trusts. It is necessary on occasion to hold executive sessions to discuss pending litigation with the Council or the Board as

Counsel:

My firm represents several municipalities and public trusts. It is necessary on occasion to hold executive sessions to discuss pending litigation with the Council or the Board as the case may be. Title 25 O.S. § 307 (B) (4) references confidential communications between a public body and its attorney. Are other individuals, such as a City Manager, prohibited from the executive session? If not, does the presence of an individual(s), other than council members and attorney, waive the attorney/client privilege? Your thoughts will be appreciated.

Joe

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.net mailto:agbass@basslaw.net

[cid:image001.png@01D82E4C.4B815930]
www.basslaw.net https://us-west-2.protection.sophos.com?d=basslaw.net&u=d3d3LmJhc3NsYXcubmV0&i=NjBhNjhkYzZhZmIzMmUwZjVhOTkxZDZk&t=c1Ixa0ZvSm5GeVlVM2lScXNGb3BLU2ZlVGNUN3UzS0VnVTZCbUFySGk2ST0=&h=8bc53a57b4e84748aac6725f2cb52a12
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Joe, With regard to potential or pending litigation, I believe that potential waiver of privilege under the Open Meeting Act could occur based on the same standard for what it would take to waive the privilege in an ordinary circumstance. The city council is the "client," and involving anyone else in a privileged communication could risk waiver. In other words, if a person has no need to be present then they should not be a party to the discussion. Since the city council is not directly involved in the management of the lawsuit there generally is no reason for any witness or the person alleged to have participated in challenged conduct to be present in order for the city council to take wherever action is requested of it on a management/decision-making level. As a general rule, I believe the city manager can be present without waiving the privilege since he is the equivalent of the "president" of a company and is the person responsible for the day to day activities of the city. That said, I can't think of any occasion where a third party who was not an outside attorney was present in an executive session to discuss pending litigation (or where that need would arise). I will be interested to see if anyone has a different view. Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Joe Weaver <jweaver@basslaw.net> Sent: Wednesday, March 2, 2022 1:05 PM To: oama@lists.imla.org Subject: [Oama] Executive Sessions Counsel: My firm represents several municipalities and public trusts. It is necessary on occasion to hold executive sessions to discuss pending litigation with the Council or the Board as Counsel: My firm represents several municipalities and public trusts. It is necessary on occasion to hold executive sessions to discuss pending litigation with the Council or the Board as the case may be. Title 25 O.S. § 307 (B) (4) references confidential communications between a public body and its attorney. Are other individuals, such as a City Manager, prohibited from the executive session? If not, does the presence of an individual(s), other than council members and attorney, waive the attorney/client privilege? Your thoughts will be appreciated. Joe -------------------------------- Joe Weaver Attorney At Law 405.262.4040 405.262.4058 fax joe@basslaw.net<mailto:agbass@basslaw.net> [cid:image001.png@01D82E4C.4B815930] www.basslaw.net<https://us-west-2.protection.sophos.com?d=basslaw.net&u=d3d3LmJhc3NsYXcubmV0&i=NjBhNjhkYzZhZmIzMmUwZjVhOTkxZDZk&t=c1Ixa0ZvSm5GeVlVM2lScXNGb3BLU2ZlVGNUN3UzS0VnVTZCbUFySGk2ST0=&h=8bc53a57b4e84748aac6725f2cb52a12> 104 N. Rock Island Ave. P.O. Box 157 El Reno, OK 73036 NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.