Executive Sessions And Attorney-Client Communications
Posted: March 8, 2016 Filed under: Uncategorized 7 CommentsYesterday I had the honor of appearing before the General Assembly’s Government Administration and Elections committee to testify in opposition to a bill that would have reopened a loophole in the Freedom of Information Act that the legislature closed in 1986. The bill seeks to expand the situations under which a public agency is allowed to go into executive session. The Connecticut Council on Freedom of Information, of which I am the legislative chair, strongly opposes the bill, as does the Freedom of Information Commission and several other organizations.
If anyone wants to see proof of the old adage that the camera adds 10 lbs to a person’s weight, just watch the CT-N footage of my testimony. (It begins at 3:52:25 into the public hearing.)
Appealingly Brief! 
20 pounds.
I find the rationale provided in your testimony to preclude public boards from receiving confidential verbal legal advice as largely insufficient. First, the abuses identified from 30 years ago certainly don’t justify the opposition to the bill absent any current evidence of agencies exploiting their counsel for improper purposes. Second, the current practice of having a confidential memo as a precedent to receiving advice in executive session permits the same risk of exploitation as a board can depart from the memo during the session as it can from any other bad faith asserted exceptions permitting executive session. Third, the fact that some boards abused counsel advice does not justify banning all verbal legal advice from privilege. Keep in mind that any party appearing before a board can be an adversary to the same board on appeal. The ability of a board to confer with counsel during the proceeding to address challenges, objections or other legal attacks is legitimate. The process you propose supports inefficiency of continuing a hearing while counsel prepares a legal memo and then reconvening to discuss with the client. Fourth the view that counsel’s advice on how a board should rule(e.g. A variance) is the actual basis for the decision fails to reflect that it is the board that makes the decision and must provide in its decisions the basis for those decisions. see UAPA.it seems that the proponents of your position either want access to legal advice to the board to enhance their legal position or to discourage advice that is in real time and create the opportunity for legal errors to exploit on appeal.
Dear O,
Thank you for comment. I appreciate you taking the time to lay out your concerns in detail. Your position, as I understand it, is that people (like myself) who want to keep the law as is having the burden of persuading the General Assembly that the law is still necessary. My response is that I think it is incumbent upon the proponents of the proposed bill to come forward and present evidence that the legislation passed in 1986 is no longer necessary and, further, a significant impediment to the ability of public agencies to obtain confidential legal advice. In other words, I think the burden of persuasion is on those who want to change the legal status quo to present real evidence (through testimony, documents, etc) of a problem with the current state of the law.
I understand the arguments you are making. But unless members of public agencies come forward, on the record, and present persuasive testimony that the current law is problematic, I think the law should remain as is, given the lessons learned in 1986.
Thanks again for your comment.
Apparently you chose not to respond to the different reasons in my response to what you actually stated in testimony. Although you did not testify that the bill should be defeated because public agencies did not appear to argue for the bill ( a matter of politics) you now rely on that assertion alone. As an attorney, the obligation to improve and defend the legal practices for both private and public clients should be independent of the politics
Dear O,
I thought I did respond to your reasons by stating, in effect, that assertions without evidence are not persuasive reasons to change the legal status quo. Your assertions may be factually correct, but I would like to see/hear evidence to support them. Absent such evidence, my view is that the FOIA in its current form does not impede public agencies in obtaining legal advice. That was the main point of my testimony.
I agree with the statement in your last sentence. But I don’t view my testimony or the position of CCFOI as “political.” Why do you see it that way?
Dan, I agree with your 9:46am remarks, but here’s one point: How does forbidding executive session without a preceding legal memorandum restrain abuse more than allowing executive session without a preceding memorandum? It’s not an entirely satisfactory answer that the question was or could have been asked before the adoption of the current version of the Act.
On the margin, I think the requirement of a preceding legal memorandum will tend to discourage abuse of executive sessions. It is not a perfect remedy for abuse. But the perfect is the enemy of the good and existing law (since 1986) has seemed to work fine, striking a reasonable balance between openness and the needs of public agencies to obtain confidential legal advice without too many obstacles.