By Nicole Montesano • Staff Writer • 

County forgoes appeal, releases e-mails

The county contended the e-mails, all county counsel communications on potential ex parte contact in the Riverbend Landfill expansion case, were exempt from disclosure on grounds of attorney-client privilege. The News-Register argued they did not qualify, and Berry produced a mixed ruling on appeal.

County Council Christian Boenisch turned over the five e-mails, along with their attachments, Friday morning. He said the county respectfully disagreed with Berry’s ruling, but had decided to waive privilege on the e-mails in question, and make them public, rather than mount a challenge in circuit court.

As it turned out, the News-Register was already in possession of four of the e-mails and all of the attachments, albeit unknowingly. They had been made available by recipients in the course of reporting in the case. And the fifth e-mail consisted of a single line taking note of an attachment.

The e-mails were sent to county commissioners and administrators to advise them of letters the counsel’s office had sent to McMinnville Mayor Rick Olson and Riverbend Landfill opponent Leonard Rydell, asking them not to contact county commissioners directly on landfill matters, as that could be construed as improper ex parte contact.

In a pending quasi-judicial matter, contact allowed one party without the knowledge or presence of the other is considered ex parte and therefore improper. The letters spelling that out were attached.

The News-Register had asked the county in March to release any communications between county counsel and commissioners on ex parte contact, which became a hot issue in the proceedings. The county identified eight and sought to have them all exempted.

Berry allowed the county to withhold three of them. The county could have voluntarily waived privilege on them, but chose not to.

The intent of attorney-client privilege, as defined in Oregon law, is to allow clients to confer and strategize with their attorneys in confidence.

In this instance, four of the five released e-mails consisted of a brief note from county counsel to county commissioners taking note of attachments. In one case, the attachment was a letter from Boenisch to McMinnville Mayor Rick Olson and in three cases a like missive from Assistant County Counsel Todd Sadlo to Rydell.

The remaining e-mail was one County Commissioner Stan Primozich sent to Sadlo, forwarding a letter from Rydell without comment. None of the five included any legal advice to the client base of the county counsel’s office, which consists of the county and members of its staff.

Boenisch acknowledged to the News-Register that the e-mails were “not earthshaking.” But he said one of the office’s clients had asserted privilege in each case, which the county counsel had a duty to honor.

Boenisch wrote Berry in response to his ruling that the county considered the e-mails “unconditionally protected from release.”

He said, “Up to this point, the county has declined to accommodate the N-R in its request because of the fundamental importance of protecting the attorney-client privilege, not just for public officials, but for all U.S. citizens. Like everyone else, however, public officials have, and should continue to have, the right to unfettered discussion and communication with their attorney or attorneys. The Oregon Public Records law exemption from disclosure of such privileged communications is, as the Oregon Attorney General and courts have both stated, ‘unconditional.’”

Though it had decided to waive privilege with respect to the five e-mails at issue in this instance, Boenisch said, “The county will vigorously defend against any future attempts to obtain attorney-client privileged communications. If it did not do so, ‘full and frank’ discussions would be effectively ‘chilled’ to the detriment of local government operations and the citizens those governments serve.”

Comments

JVineyard

This article made me sleepy.

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