Sunday, March 15, 2009

Rosemary’s Baby — Or, Thoughts on the Latest Scandals

Posted By on Sun, Mar 15, 2009 at 7:17 AM

Wow, it’s been a crazy few weeks. So many stories are breaking on so many fronts that it’s hard to keep up. Thank God for the Internet and for bloggers. As I finally get around to reading some blogs and the daily paper, a few observations come to mind:

 

 

Regarding the federal grand jury subpoena of Veronica White’s laptop — I’ve heard some express surprise at how quickly the feds have moved on this. Actually, the fact that there was a grand jury subpoena issued so quickly tells me that this grand jury has been looking at City Hall for a while. I have no idea what the grand jury is looking at — federal agents and attorneys are not allowed to discuss ongoing criminal investigators in the press — but it seems clear that the grand jury was not impaneled just last week. I suspect it has been meeting for a while to look at one or more city scandals. It’s also possible, as the T-P suggests, that it subpoenaed White’s computer records in order to protect the secrecy of an ongoing investigation.

 

Regarding the email flap between the Nagin Administration and WWL-TV’s Lee Zurik — I found it very interesting to read a Times-Picayune summary of a sworn affidavit submitted by City Attorney Penya Moses-Fields to Judge Rosemary Ledet in connection with Zurik’s lawsuit. Here’s what the TP said of the affidavit (note that I am underlining some dates in bold face to underscore some key dates, and I’m filling in some full names in brackets):

 

“Moses-Fields said in the affidavit that [attorney Tracie] Washington e-mailed her request to [Sanitation Director Veronica] White on Dec. 3, and the sanitation director notified Moses-Fields about it some time during the next two months.

 

“Moses-Fields said she met with Chief Administrative Officer Brenda Hatfield and [interim city technology officer Harrison] Boyd on Feb. 2 and decided to have Boyd gather the e-mails on two computer discs and turn them over to her office. The law department would then review the e-mails to remove any privileged information and turn them over to Washington, the affidavit says.

 

Moses-Fields said it took two more weeks for her to notify the council's attorney that a request had been filed. Then, she said Boyd came to her on Feb. 28 and informed her that “at some point in time prior to that day, he had provided Veronica White with one set of discs containing e-mails of the City Council.”

 

Okay, let’s examine the dates and the time lines closely and see what we see.

 

First, Washington’s email to White asking her to bird-dog the public records request was sent on Dec. 3, 2008. What’s the significance of that date? Well, maybe it’s just coincidence, but it happens to be the same date that Zurik filed his public records request for Nagin’s and Ceeon Quiett’s emails. As a matter of fact, Zurik filed his request shortly after 9 a.m. that day. Washington emailed her request for the emails of Nagin’s council adversaries after 11 a.m. that day. Coincidence? Maybe, but some folks I know don’t think so. Read on.

 

Second, Moses-Fields states (under oath) that White told her about Washington’s public records request some time during the next two months.” Gee, could she be any more vague? Is there a reason for such vagueness? More important, is there any legal justification for it? Read on.

 

Third, Moses-Fields then met with Chief Administrative Officer Brenda Hatfield (Nagin’s top appointee) and interim chief technology officer Boyd on Feb. 2 — which falls at the tail end of the aforementioned “some time during the next two months” — at which point they decided to have Boyd gather up the requested City Council emails and give them to Moses-Fields so that the City Attorney’s Office — NOT the Council members or their own attorneys — could “review the e-mails to remove any privileged information and turn them over to Washington.”

 

Whoa! There are so many red flags in that paragraph I feel like I’m at used car sale. The following questions need to be answered — and quickly — and under oath:

 

• What really happened during the intervening two months between Washington’s Dec. 3 public records request and Moses-Fields’ Feb. 2 meeting with Hatfield and Boyd? That is, when exactly did the City Attorney’s office become aware of Washington’s public records request? Who told them? Did anyone do anything with those records in the interim?

 

• Why did Moses-Fields meet with Hatfield and Boyd to discuss how to protect privileged information? In fact, why did Moses-Fields get involved at this or any other point in a request for City Council records — particularly when she knew full well that the council has its own independent legal counsel? Moreover, she knew at the time that the reason the council hired its own lawyers is because it was considering litigation against Moses-Fields and her client, the mayor. Moses-Fields obviously knew or should have known that some of the council emails would contain attorney-client communications, which are privileged, and she also knew damn well that she had no right — and no authority — whatsoever to review or even to see those privileged communications, particularly when she is legally adverse to the parties and the attorneys who are engaged in those communications.

 

Helloooooo? Is anybody from the Louisiana State Bar Association and/or the Attorney Disciplinary Board and/or the Office of Disciplinary Counsel paying attention here? The law is crystal clear on this: attorneys who come into possession of adverse parties’ documents or communications that may be privileged have an ethical duty to notify the attorneys for those parties immediatelyand to avoid opening, reviewing or otherwise violating the privileges that attach to those documents or communications. So, why exactly did Moses-Fields admit to an intent to review (and perhaps actually review) emails that she absolutely knew contained privileged information and/or communications between an adverse party (the council) and that party’s attorneys? What was she thinking? Which leads us to …

 

• Why did it take Moses-Fields, by her own admission, two weeks to notify the council’s attorneys that a public records request had been filed for documents that probably contained privileged communications between the council and its attorneys? What was she thinking? Or better yet, what was she reading? And finally …

 

• Why did it take Boyd until Feb. 28 — almost four weeks after he first met with Moses-Fields and Hatfield to discuss the public records request that Washington sent to White rather than to the council or to Moses-Fields — to tell Moses-Fields that “at some point in time prior to that day, he had provided Veronica White with one set of discs containing e-mails of the City Council”? By Moses-Fields’ admission under oath, it was decided on Feb. 2 that the City Attorney’s office would get the emails on disk and review them for privileged information — which was bad enough, considering the City Attorney’s office by then was already adverse to the council. So why did it take Boyd almost four weeks to tell Moses-Fields that, oh, um, some time ago he gave all that data to the city sanitation director instead? Is the council supposed to believe that Moses-Fields and her department were not colluding with White and/or Washington to release the council emails? How gullible does she think the council members and their attorneys (and the public) are?

 

Hypothesis:  Maybe that’s why the feds subpoenaed Boyd’s computer as well as White’s. Maybe they want to see if there was a — dare I say it — conspiracy to violate the privacy of the council … or, as the TP noted, to gain unauthorized third-party access to the council’s emails. We’ll see.

 

At a minimum, Moses-Fields may have some very serious ethical and disciplinary issues to deal with — and I make that observation based on her own sworn admission to Judge Ledet.

 

My final observation:  While Zurik has collected some well-deserved props, Ledet also is a hero for her spot-on rulings. At a time when Nagin and others were trying to turn the issue of transparency into a racial sideshsow, Ledet, who just happens to be African-American, cut through the B.S. and laid down the law (literally and figuratively) to Nagin, Moses-Fields and others. If heads start to roll in this thing, or if anybody gets into real legal trouble, we should not forget that the unraveling of this thing is, um, Rosemary’s baby.

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