San Jose City Hall refuses to turn over emails from Mayor Sam Liccardo related to an advocacy organization he formed in February, claiming that every communication is subject to attorney-client privilege.
Now, San José Spotlight is appealing the denial that’s raised eyebrows among attorneys and open government advocates.
“I just can’t see how everything you’ve asked for would be subject to the attorney-client privilege,” said attorney David Snyder, who leads the First Amendment Coalition. “It’s uncommon they assert the attorney-client privilege to such a broad range of documents. This is a really sweeping statement—that all communications are subject to the attorney-client privilege. I just don’t see how that could be.”
Four months ago, Liccardo quietly launched Solutions San Jose, a 501c(4) advocacy organization that’s worked on a range of public policy issues including demanding schools reopen amid the COVID-19 pandemic, advocating against water rate hikes and hosting forums on housing and homelessness solutions.
On May 9, San José Spotlight requested copies of emails and texts related to the group from Liccardo, his chief of staff Jim Reed and other officials for the past six months. Nine days later, one of the mayor’s employees issued a blanket denial.
The purpose of Solutions San Jose still isn’t clear.
The organization is linked to an office on The Alameda that once served as Liccardo’s re-election headquarters. It shares a similar logo and color scheme to his campaign materials. It uses ActBlue, a Democratic fundraising software, to collect donations from the public. And Liccardo sends emails on behalf of the group using his title as mayor.
Yet the group is not a city entity, raising questions about why the city attorney is consulting on emails related to it.
When asked about her office’s involvement with Solutions San Jose, the city attorney—who works for the residents of San Jose and not Liccardo personally—denied her office provided legal advice related to the organization, but said the emails are still exempt.
“We have not provided legal advice about Solutions San Jose to the Mayor or members of his office,” City Attorney Nora Frimann told San José Spotlight in an email Thursday. “Because your public records act request was read very broadly, the response referred to a privileged communication. Without waiving the privilege, we can indicate that our office has provided general advice about limitations on the use of City property, staff, and resources for private purposes such as Solutions San Jose.”
According to Snyder, the only way an email from Liccardo or his workers would be attorney-client privileged is if it involved giving legal advice or the city faced active litigation.
“It is curious the city attorney would be involved in advising the mayor on an entity that is not a city entity,” he said.
Simply copying a city attorney on an email communication does not make it privileged, Snyder added, a trick some government agencies use to skirt public records rules.
But if Liccardo or others on his team emailed an outside official or non-city agency about Solutions San Jose, the attorney-client privilege is destroyed. Solutions San Jose is hosting a two-part public forum on homelessness featuring nonprofit executives from outside groups such as Destination: Home and Silicon Valley Leadership Group.
But when San José Spotlight asked for those emails, the city said they do not exist.
“I smell a rat,” said downtown attorney Jim McManis, who’s successfully sued San Jose for withheld public records including taking a case to the California Supreme Court that ruled communications sent from private devices or accounts must be released if they deal with the public’s business. “This is the sort of stonewalling that gets public officials in trouble. Will they ever learn?”
Frimann sits on the League of California Cities‘ legal committee, whose ethical guide points out that a city attorney owes ethical obligations under the American Bar Association “to the city itself—as the client—and not to any individual public official or community member.”
Even if Liccardo or his employees used their personal email accounts to communicate about Solutions San Jose, if the matters dealt with the public’s business—such as housing policy and utility rates—those emails should be released under the law.
Government transparency is critical for a functioning democracy. We believe the denial of emails involving Liccardo’s advocacy group—which is lobbying for public policies and influencing decisions that shape our lives—is improper.
San José Spotlight has officially appealed the city’s denial of records and the dispute will come before the council’s Rules and Open Government Committee this Wednesday. The committee, chaired by Vice Mayor Chappie Jones, can overturn the denial and direct city officials to release the records.
If you agree that emails related to public advocacy by Solutions San Jose should be released, join us by making your voice heard. You can show your support for San José Spotlight’s push for accountability by emailing [email protected] by 9 a.m. Wednesday.
You can also make a verbal public comment by following the steps below.
Click here to watch the meeting at 2 p.m. Wednesday.