But the other thing is
(11) that more likely the advice [sic] would be, you know, X would be
(12) more likely to be upheld by a court than Y, as opposed to,
(13) you should do A, B, or C, because we are outlining the
(14) legal risks, the legal issues as opposed to what a course
(15) of action would be.

Predicting outcomes and explaining the method of determining the odds/risks is an opinion, not advice.

The city will likely be sued over this as well as over the percent for art program (and rightfully so, as I’ve said many times.) That’s an opinion, by the way. (I think I’ve said that before as well, but maybe it’s just deja vu.)

City Records to be Public
SECTION 18.2. All records of the City shall be public, shall be kept in City offices except when required for official reasons or for purposes of safekeeping to be elsewhere, and shall be available for inspection at all reasonable times. No person shall dispose of, mutilate, or destroy any record of the City, except as provided by law, and any person who shall do so contrary to law shall be guilty of a violation of this charter.

This section gives citizens more rights to public records than the Freedom of Information Act does. There aren’t any weasel words about exemptions.

But Postema told me personally that the FOIA supersedes the charter! He made a convoluted, unconvincing argument.

Is there a pattern here?

That would solve the issue of Postema saying “he’s not aware of anything illegal about what the city is doing”. Why wouldn’t every member of Council want to have this ‘advice’ in writing? Or explain why they could vote against getting a written legal opinion.

[link]

“In my opinion, state law on this issue is hopelessly vague”

The topics that justify executive sessions would seem to me to justify confidential opinions as well. These would include personnel and labor matters and purchase of property. Litigation against or on behalf of the city also seems obvious as something to be held closely.

But as to whether a particular ordinance conforms with the law (state, Federal, and city charter), I would think that a frank and open assessment is appropriate, since it is a matter that council should deliberate on its merits. That deliberation itself is subject to transparency requirements, and so should their attorney’s best estimation based on a reading of the law.

(I read Dave Askin’s comment after writing this; there are some overlaps.)

“City Attorney
SECTION 5.2.
(a) The Attorney shall be attorney and counsel for the City, and shall be responsible solely to the Council. The Attorney shall:

(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions;
(2)….”

It’s likely that the City Attorney’s opinion (not filed) is that the attorney–client privilege outweighs his legal obligation to adhere to the Charter. If so, perhaps he should advise the Council to work to change this provision in the Charter to make it consistent with his legal opinion.

In my experience, I’ve often found that “those who understand the Rules of Professional Conduct” are familiar with the rules only in the context of the private sector, where a private attorney has a private individual as a client. The position of Ann Arbor’s city attorney is different from that scenario in two ways. First, in the terminology of the Rules of Professional Conduct, the context is “organization as client.” Second that organization is a public body, and subject to laws that can trump attorney-client privilege. As a consequence, legal counsel like Ann Arbor’s city attorney cannot operate within the usual walls of complete confidentiality for all communications, which attorneys to individual clients in the private sector enjoy.

One impingement on the confidentiality that the Ann Arbor city attorney’s communications might otherwise enjoy (if he were legal counsel to a private individual), is contained in the Ann Arbor city charter. Among the duties of the city attorney, as enumerated in the city charter: “(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions;”

Based on the quote from the news article cited by Peter Zetlin in Zetlin’s comment, it appears that Postema is construing the charter as if it read, ” … and when so requested shall file …” but that’s not what it says. The practical impact of the charter language is that the city attorney is supposed to give advice when asked, and if he writes down an opinion about it, then it’s to be filed with the city clerk, i.e., made public.

Now, when David Cahill writes in his comment, “Opinions? What opinions? He claims he doesn’t issue ‘opinions,’ which would have to be filed with the City Clerk according to the City Charter. Instead, he issues ‘memoranda,’ which he keeps secret,” some readers might read it as simply inflammatory rhetoric.

However, consider the following excerpt from the transcript of a hearing before Judge Morris in the circuit court in January of this year. Morris articulates how she figures that the city attorney would behave as most lawyers would and give his clients his opinion. Assistant city attorney for Ann Arbor Abigail Elias then disabuses Morris of the idea that the city attorney is in the opinion-writing business:

(2) THE COURT: On that point, assume for a
(3) moment, because I’m not that familiar with how the city
(4) attorney gives advice to council through these written
(5) communications, but I presume as with most lawyers they
(6) tell the client what the law is, they tell them what
(7) either authority they have to do what or what they’re
(8) prohibited from doing, and then maybe the council members
(9) ask questions or ask for clarification or, and there may
(10) even be a conclusory bit of advice like saying, it’s my
(11) opinion as your attorney that you should not, or you
(12) should or should not grant more licenses to dispense
(13) marijuana, and having given the law and everything else.
…
(6) MS. ELIAS: …
(7) … First of
(8) all, I think the attorney would never say, it’s my
(9) opinion. We are careful. We give advice. We do not
(10) provide formal written opinions. But the other thing is
(11) that more likely the advice would be, you know, X would be
(12) more likely to be upheld by a court than Y, as opposed to,
(13) you should do A, B, or C, because we are outlining the
(14) legal risks, the legal issues as opposed to what a course
(15) of action would be. We can provide the options and the
(16) pros and cons from a legal standpoint.
(17) THE COURT: I see. Okay.

But the job description of the city attorney as set forth in the city charter certainly contemplates the idea of writing formal opinions, and further requires that such opinions are public. I would contend that many of the writings of the city attorney that he labels “advice memos” are in fact opinions, required to be disclosed under the charter, but are withheld from the public because they are not labeled with the word “opinion.” There’s a vast difference between an advice memo that says, “I would advise you to settle this lawsuit because we’d lose in court, ” and one that says, “The city’s percent for art program is legal, based on the following interpretation of thus and such a statute and based on the following case law …”

Someone who took the job of city attorney and in the course of that service, generated a corpus of opinions on various matters, would have something of a track record on issues. Some of those issues would be tried in the circuit court if there were litigation. So it would put that city attorney in an odd position, if he were subsequently to run for and win a seat on the circuit court. That former city attorney, now judge, would have produced set of opinions on various issues all collected in one place for easy review. Those opinions certainly would not be binding on the judge for cases he heard. But to disagree with his own previously published opinion would tend to reflect poorly on the quality of his service as city attorney. As a judge, that former city attorney would have greater latitude had he not produced any written opinions. By not producing any written opinions, Postema avoids putting himself in that position.

In sum, Postema doesn’t need to be directed by the city council as a whole in order to be allowed to write an opinion on the legality of the city’s public art program. It’s just that if the council did direct him to do so, he would not have the option of refusing on pain of insubordination — the council hires the attorney directly. If Postema had a healthier understanding of how attorney-client privilege works in the public sector, with an organization as a client, I think the written opinion on public art would have long since been filed with the clerk’s office. The desire to see such an opinion has been expressed by councilmembers (but only a minority) for at least two years. I wrote a column addressing the issue of attorney opinions back then, when Stephen Kunselman (Ward 3) was already raising questions about it.

At the Ward 3 Democratic primary candidate forum held this year at the Malletts Creek library branch, Kunselman ventured that maybe a council resolution would be necessary in order to get the city attorney to produce a written opinion on the public art program. Maybe so. So far, though, we haven’t seen such a resolution make it onto the council’s agenda. I think it would be interesting politics for Kunselman to just put that kind of resolution on the agenda — even if he doesn’t think the votes aren’t there to approve it. We’d at least get to see how councilmembers line up on this open government issue.

“City Attorney Stephen Postema said last week his office has reviewed the Percent For Art Program, and he’s not aware of anything illegal about what the city is doing. He said he’ll gladly issue a written opinion when the council as a whole directs him to do so.”

He’s ‘not aware’? From this quote he sounds like a weasel lawyer, and for anyone to think he’s going to be any different as a judge is sadly mistaken.