As a preface to what I'm about to write, let me state that I'm generally one of the persons who's been very critical of Mayor Dellums' performance. Indeed, in the case of bringing in a new City Administrator, Dellums is dragging his feet beyond a reasonable degree of time.
Thus, Oakland City Attorney John Russo's
public charge last week that the Oakland City Charter is such that the Mayor may be violating it by not naming a City Administrator is shockingly sloppy in logic and approach.
I'm frankly surprised Russo would take such a brazen road in trying to get the Mayor to act. It's the duty of the media to provide an informational check on these actions. And in this case, Russo's builying tactics cause me to wonder if it's overstepping the normal attorney-client relationship.
Not that Dellums doesn't deserve it because it's obvious that he misread the City Charter. The Charter states:
Section 502. Acting City Administrator. The City Administrator shall designate two or more of his assistants or department heads, in the sequence in which they are to serve, as Acting City Administrator to serve as City Administrator in the temporary absence or disability of the City Administrator. (Amended by: Stats. November 1988 and March 2004.)
Now that's in the normal case where there is a City Administrator who's absent for some reason -- not fired -- and has selected two people to act in his or her absence. But that's not the case in today's Oakland, where there is no appointed City Administrator. We have an interim one, Dan Lindheim, but no permanent replacement. The City Charter does not cover Lindheim, so the Mayor's people have terribly misread the City Charter, leaving Oakland's top lawyer to openly question the Mayor's actions.
But the simple question is if Mayor Dellums can't trust his attorney to watch his back in private -- to keep warnings about the Mayor's decisions with respect to the law to a private, rather than the oh-so-public communication he made when he wrote a letter explaining to the media (and which is the public) that the Mayor's delay in appointing a new City Administrator may be in violation of the Oakland City Charter, then who can the Mayor trust?
It's like the movie Iron Man, where Obadiah Stain, who's supposed to be Tony (Iron Man) Stark's business partner, stabs Stark in the back. As much as Russo would like to be Stark, he's in the role of Stain.
But with a major twist.
This thing called the attorney / client relatonship is a part of the
Oakland City Charter such that the City Attorney's directive is to follow it. It states:
Section 401(6). Powers of the City Attorney. The City Attorney shall serve as counsel to the Mayor, City Council, and each and every department of the City, except departments specifically enumerated by this Charter as an independent department of the City, in their official capacities pursuant to state law and the Charter, and as counsel, shall assert and maintain the attorney-client privilege pursuant to state law...
State Law:
ATTORNEY-CLIENT PRIVILEGE - California Evidence Code section 954 states that 'the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . .' (Evid. Code, Ð 954.) 'The attorney-client privilege defined by Evidence Code section 954 authorizes a client to refuse to disclose, and to prevent others from disclosing, information communicated in confidence to the attorney and legal advice received in return. The objective of the privilege is to enhance the value which society places upon legal representation by assuring the client the opportunity for full disclosure to the attorney unfettered by fear that others will be informed. While the privilege belongs only to the client, the attorney is professionally obligated to claim it on his client's behalf whenever the opportunity arises unless he has been instructed otherwise by the client. (Evid. Code, Ð 955; Bus. & Prof. Code, Ð 6068, subd. (e).)' (Glade v. Superior Court (1978) 76 Cal.App.3d 738, 743.)
State law would seem to imply that the kind of communication Russo made public should have been done in private. It wasn't and put the Mayor in a massive bind. Now, Dellums is publicly seen as being at odds with his own lawyer, and vice-versa. Can Dellums comfortably go to Russo and get timely and helpful advice and counsel without fear that Russo would go public with what the Mayor was or was not doing? It seems not so.
In taking the action of publicly attacking the Mayor -- the first time such an action has been taken in Oakland's history, Russo has accomplished the following:
1) Further ruined the Mayor's credibility with the public.
2) Increased his own visibility and talk that Russo's running for Mayor of Oakland himself.
3) Placed himself at odds with Mayor Dellums and the City in a fine, uncharted mess. If Dellums has no confidence in Russo, the Mayor could ask Russo to appoint outside counsel to handle the Mayor's affairs. Yep, that's what could happen.
4) Place Russo in a position of long term political vulnerability with respect to Mayor Dellums.
If Russo bothered to ask me, and he would have been smart to do so, I'd have advised him to enlist City Auditor Courtney Ruby to to the work of publicly asking the Mayor to appoint an experienced City Administrator to help solve the budget crisis. That effectively shield's Russo from political and legal harm with respect to the attorney / client relationship he has with Mayor Dellums.
Now, that's wrecked.
