Ann Arbor Council to Weigh Privilege Waiver

A resolution that’s been added to the Ann Arbor city council’s Monday, Oct. 7, 2013 agenda would, if approved, result in the waiver of attorney-client privilege with respect to a specific advice memo that has already been written by the city attorney’s office.

The memo responds to questions that were raised about the procedure used to appoint Al McWilliams to the board of the Ann Arbor Downtown Development Authority at the council’s Sept. 16, 2013 meeting. Mayor John Hieftje asked the council to vote on McWilliams’ appointment after saying at a previous meeting that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at the same meeting when the confirmation vote is taken. McWilliams was confirmed on a 6-5 vote.

The advice memo likely establishes that it’s doubtful a successful court challenge could be brought – partly because it’s not clear who might have standing to bring such a suit.

A “whereas” clause in the waiver resolution states that “the public good will be best served by releasing this advice to the public.”

The first of two “resolved” clauses makes clear that the waiver of the attorney-client privilege is confined to a narrow circumstance: “The Council waives privilege in this specific circumstance, as the waiver of privilege does not expose the City to material legal risk and disclosure of the legal issues raised in this memo would not unduly constrain future Council actions.”

Under the Ann Arbor city charter, written opinions of the city attorney are to be filed with the city clerk’s office. City attorney Stephen Postema has contended in the past that his advice memos are not written opinions under the city charter and has declined to file them with the clerk’s office.

In the past, the council has voted on a resolution that would have made an attorney opinion public – on the legal basis for the Percent for Art program. That vote, taken on April 2, 2012, failed with support only from Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Stephen Kunselman (Ward 3).

The Oct. 7, 2013 agenda item is sponsored by Sabra Briere (Ward 1) and Chuck Warpehoski (Ward 5).