Did Newsom Break the Law?

by Paul Hogarth on August 24, 2009

For years, Gavin Newsom has had a spiteful and petulant relationship with the Board of Supervisors. After Bevan Dufty voted with Board progressives to override the Mayor’s veto on police foot patrols, Newsom did not talk to him for months. When a supermajority set aside funds for affordable housing in a budget supplemental, the Mayor refused to spend the money. And when the Budget Committee shifted money from Police and Fire to health and human services, he held a press conference to say “Thank God we have a Mayor.” But now, Newsom’s approach may have driven him to break the law. As the Board considers an ordinance to shield undocumented youth from the feds until they are convicted of a crime, the Mayor leaked a confidential memo from the City Attorney to the San Francisco Chronicle raising legal questions about the proposal. It is illegal in most circumstances for an elected official to disclose such classified information, and Newsom could now face charges of official misconduct.

On August 20th, the Chronicle reported that legislation authored by Supervisor David Campos – and co-sponsored by seven of his colleagues – was vulnerable to a challenge in court due to federal preemption. The newspaper based this on a “confidential memorandum prepared by the City Attorney’s office at the request of Mayor Gavin Newsom and obtained by the Chronicle.” At the time, no one knew who had divulged the classified document. But on August 21st, Sarah Phelan of the Bay Guardian asked Newsom if he had leaked the memo to the Chronicle, and he replied: “I handed it to some of my people.” In that case, this raises a whole slew of legal issues.

Normally, there is nothing wrong with a client divulging his lawyer’s advice that was made in confidence – because the privilege is there for the client’s benefit. But the City Attorney is not just the Mayor’s lawyer – he works for the City. As Dennis Herrera outlined in a memo on August 20th, “the client of the City Attorney is the City – and not individual elected officials, members of boards or commissions or even departments … When the holder of the privilege is an entity like the City, the privilege belongs to the entity rather than to any individual officer or employee.”

The City Attorney gives confidential legal advice to all City officials during the legislative process, and for one branch to publicly divulge legal advice has a chilling effect on another branch’s right to receive counsel. “City officials who seek our legal advice,” wrote Herrera in his memo, “usually expect that advice to remain confidential, and that expectation encourages candid discussions regarding the legal vulnerabilities of legislation. One branch of City government’s waiver of attorney-client privilege may discourage City officials from seeking legal advice from the City Attorney.”

All proposed legislation not clearly illegal is “approved to form” by the City Attorney. But there may be some proposals – such as the Sanctuary City Ordinance – that could raise legal complications, and the City Attorney offers confidential advice on its aspects.

Herrera explained the four-step process the City Attorney takes – when such a measure could be vulnerable to a court challenge. First, he notifies the sponsor (and co-sponsors) that the bill requires a “cautionary memorandum” laying out the possible legal pit-falls. Once the bill is assigned to a Committee, he offers the same advice to the Supervisors on that Committee. After the measure passes Committee, he notifies all eleven members of the Board. Only after the proposal passes the Board on the second reading does he offer the same substantive advice to the Mayor – unless the Mayor asks for it at an earlier time.

David Campos’ legislation was only first introduced at last week’s Board meeting – and under the 30-day rule must sit dormant in the Public Safety Committee. In other words, we are only at the initial stages of the proposal – but the Mayor requested the memo from the City Attorney long before it would reach his desk, in a break with standard protocol.

Newsom admitted to the Bay Guardian that he “handed” the memo to “some of my people” – which raises even more problems. Herrera writes that no one – “including the official’s aides and staff members” – can leak a confidential memo without their boss’ consent. In other words, Newsom is personally liable if it was leaked from his Office.

When Herrera issues a memo, “only the body to whom the City Attorney directs the communication – and not its individual members” is allowed to go public. Campos should have received the same memo – because under City Attorney protocol, the bill’s sponsor gets it first. In other words, Newsom was not authorized to leak the memo without at least getting Campos’ consent. Newsom spokesman Nathan Ballard even admitted to the Guardian that Campos “has a nearly identical memo.”

So did Newsom break the law? Section 3.228 of the SF Campaign and Governmental Conduct Code says “no current or former officer” may “willfully or knowingly disclose any confidential or privileged information, unless authorized by law” – nor can they use it to “advance the financial or other private interest of himself or herself.” By handing the memo to his aides, Newsom knowingly disclosed information he was probably not allowed to divulge. And because the proposal is not yet law, one can argue it was done to advance the Mayor’s “private interest” of scoring political points in a policy debate.

(Section 3.228 became law because of Proposition E – which the electorate passed in November 2003. As a Supervisor, Gavin Newsom voted to put it on the ballot.)

What are the consequences? If Newsom did not know it was illegal to leak confidential information, he was at best negligent – which could mean up to $5,000 in civil liabilities (under Section 3.242 of the Campaign and Government Conduct Code.) Moreover, the Mayor could be found guilty of “official misconduct” – which Section 15.05 of the City Charter includes “any violation of a specific … governmental ethics law.” Consequences for that could be anywhere from mere discipline – to an outright removal from office.

On August 21st, Supervisor John Avalos filed a complaint with the Ethics Commission calling for an investigation. “As a Supervisor and even during my tenure as a legislative aide,” he wrote, “I have always followed the practice and protocol of safeguarding the confidentiality of such memoranda. Indeed, never in my four and a half years at City Hall have I heard of such a confidential advice memorandum being disclosed to a media outlet.”

Regardless of what one believes of the pro-immigrant legislation – both on policy or legal grounds – it was inappropriate to leak this confidential memo to the Chronicle. And this is where the crux of the debate must now focus on.

EDITOR’S NOTE: Paul Hogarth is an attorney licensed to practice law in California, but this article is not intended as legal advice.

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