Waiving the Privilege . . . In New Hartford??

The law contains a number of privileges that allow people to refuse to testify or otherwise disclose information on certain subjects. Many evolved over time and were intended to protect certain relationships or advance certain purposes that were thought to be of more value to our society than the inconvenience of not being able to get information from a particular source. Among privileges are the doctor-patient privilege, the priest-penitant privilege, spousal privilege, attorney-client privilege, and, of course, the Fifth Amendment right against self-incrimination. Each has its own set of requirements that must be met for the privilege to apply.

The attorney-client privilege is particularly interesting and, at the moment, evolving to possibly change the prohibition on disclosure of client confidences when the attorney is told by the client that he or she committed a crime. Regardless, the privilege is there for the reason of ensuring that clients are able to mount defenses and ensure that justice is served.

The attorney who works for the government has a rather unique position. Who is the "client" that he or she is supposed to protect? The employing governmental entity? Or the particular agency or even an office within an agency within the governmental entity for whom the attorney works? Or the people in the government who ask the attorney's advice? . . . . Or the public from whom the government derives its powers? Interesting questions, no?

The attorney who holds decisionmaking authority for a governmental entity has an even more "interesting" position because there is a difference between "lawyering" and "policy-making" with communications re the former likely protected and the latter likely not protected -- but the line between the two can be blurred at times.

Why bring all this up? ... Keep reading ...

The "Who Knew What and When?" situation re the New Hartford Business Park still lacks satisfactory explanation even after today's Observer Dispatch's "time-line of discovery" that "The Hartford" Building is actually located outside the boundaries of the Business Park.

According to the article, the Town Planner now claims that he sought a zoning change from the Town Board at its August 8, 2007, meeting to put "The Hartford" into the Business Park, but (according to the newspaper) there is no record of this -- and just a month later he wrote a letter to the developer saying that The Hartford was inside the Business Park -- and a year after that he told Councilwoman Krupa that The Hartford was inside the park.

With the Town Planner's credibility shot by his own conflicting statements ... Is he covering his own error, or being made a scapegoat?

New Hartford Online has kindly posted a list of the Town Attorney's Invoices for the Business Park... over $60,000 worth! Their frequency and the number of memoranda directed to the Planning Board and the Town Board on Business Park matters such as SEQR compliance (which is now admitted in another article today as having been defective) should provide a much better timeline of what exactly happened, when, and who is responsible.

The frequency of invoices for memoranda when compared with the relative lack of requests for legal advice reflected in the Town Board and Planning Board minutes makes one wonder whether the attorney was giving legal advice on request, or doing it in an unsolicited fashion . . . suggesting that he may have crossed the line from legal advisor to policy maker (the function of elected officials and not hired help). Certainly the NH Town Attorney's concurrent position of Chairman of the Town's Republican Committee which hand-picked most of the Town Board and the Town Supervisor raises the spectre that there is more going on than giving legal advice and drawing papers. In all these billings, was the Town Attorney really working for the duly elected Town government?

No doubt, if anyone tried to FOIL any of these memoranda, the likely response would be a refusal based on "attorney-client privilege." Since New Hartford seems to go to great lengths to prevent disclosure of anything, a refusal here would be a "cakewalk" legally.

But a funny thing about privileges: THEY CAN BE WAIVED by the protected party. For the Attorney-Client privilege, although the attorney MUST assert it, it can be WAIVED by the Client. So here we have a Town Board, all elected officials that are supposed to be doing the Public's business. If they have nothing to hide, they should waive the privilege. We also have a Town Planning Board, again, doing the Public's business . . . and a Town Supervisor... the same arguments.

The Public Paid for all these legal memos etc $60,000+. The Public should see what it bought with its money. What reason could there be for asserting the privilege, especially now that it is clear that someone screwed up big-time?

Another funny thing about privileges: When they are asserted without good reason, THEY CAN LEAD TO A NEGATIVE INFERENCE. This applies both in courts of law and, more important, The Court of Public Opinion.

If the Observer-Dispatch is serious about getting to the bottom of this fiasco, it will ask the Town Board to waive any attorney-client privilege existing between the Town and the Town Attorney, and FOIL all the alleged memoranda written by the Town Attorney.

Just seeing which officials vote NO or otherwise resist disclosure will tell a story in and of itself.

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POST SCRIPT: I reread today's OD article and this line caught my eye:

Planning reviews for Adler’s park were overseen by the panel, with no Planning Board involvement, even though some parcels were outside the original boundaries. [emphasis supplied]

That statement is absolutely false as a review of the Planning Board's minutes makes amply clear. Mr. Adler came before the Planning Board for a "Preliminary Site Plan Review" on March 27, 2006 and a lengthy discussion ensued. (scroll to p 4). The Planning Board was updated on June 12, 2006 (see p 5). On July 17, 2006 the Planning Board granted Preliminary Approval to the New Hartford Business Park (see pp 8-9). On September 11, 2006 Mr. Adler received a "Final Site Plan Review" of the New Hartford Business Park from the Planning Board.

According to its minutes, the Planning Board was very involved.

Who's water are you carrying, Observer-Dispatch??? This is the second time in the last 6 weeks  that you've tried to say that the Planning Board had nothing to do with this project.

Is your Business Park series an exposé or an elaborate cover-up?

Cathy has more on this topic on NH Online Blog.