Legal problems piling up for Tulare officials and attorneys

Yet another lawsuit was filed Friday, March 2, against the City of Tulare for mounting problems with transparency and withholding records for its citizens.

In recent public record act (PRA) responses regarding the billable hours incurred by the city attorney, Heather Phillips, and fellow law firm members, responses have been deemed slow with all issues of the city attorney’s work being redacted.

It is this alleged lack of transparency or citing “privilege,” among other things, that have lead Tulare resident Ben Brubaker to file a second lawsuit against the city. His first suit, filed on January 31, 2018, asks the court “For a declaration that the City has not complied with the January 16, 2018, Public Records Act request, and that the requested documents should be produced forthwith.”

That request followed his PRA asking for a copy of the contract between the city and an unnamed investigator hired to investigate the city’s police chief, Wes Hensley, along with police Cpt. Fred Ynclan and Lt. Jerod Boatman, who were all placed on paid administrative leave last year. Assistant city attorney Sarah Tobias denied the request.

On March 2, a formal response to the first suit was filed with the court. Included in the affirmative defenses were:

3. As a third, separate and distinctive defense, Defendant alleges that Plaintiff lacks standing to bring the instant complaint.
4. As a fourth, separate and distinctive defense, Defendant alleges that Plaintiff’s Complaint is moot.

“It’s what you would expect to see, said Michael Lampe, Brubaker’s attorney.

The Second Law Suit

The new complaint filed on March 2 by Brubaker’s attorney reveals more than 50 points within three causes of action. The first two causes are in alignment with the first suit filed – a lack of transparency with numerous PRAs, and while addressed within the 10-day requirement period with notice of an extension in time needed, it questions the additional time being warranted. The third cause specifies more than 2,000 entries on attorney billing statements, all of which were redacted.

Cause 48. Every attorney billing entry (over 2,000 entries) contained in Exhibits 6, 7, and 8 have been completely redacted in a manner to keep members of the public from discerning any unprivileged information related to the conduct of the City Attorney.

Cause 49. Although the City may redact attorney billing entries relating to pending litigation under Govt. Code 6254(b), and entries that are attorney-client privileged communications under the Evidence Code 954, Plaintiff alleges on information and belief that not all 2,000 of the redacted entries relate to pending litigation or would disclose attorney-client privileged communications. As such, the City’s overly broad redaction of these public records violates the Public Records Act.

A case management conference for this new case has been assigned a hearing date of July 7, 2018 at 8:30am and is assigned to Judge David Mathias. Brubaker’s first suit filed is set up for a case management conference on June 12, 2018 at 8:30am, also with Judge Mathias.

The Valley Voice has received similar public record response for attorney billings from June 2017 to the date of the request, January 24, 2018 – the request was made for not only Goyette & Associates, the current city attorneys’ firm, but any other attorneys who had worked for city during that time. In an e-mail from Tobias to the Voice, she wrote:

Please note that many of the responsive records have been redacted.  These redactions have been made pursuant to California Government Code Section 6254(k), which does not require the disclosure of records in the event that the disclosure of those records “is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

In this case “many” actually meant “all.”

Everything was redacted from copies of all billings – all billings that had itemization that is.

According to California Legislative Information, exemptions may include references to litigation and personnel matters, among other things. However, it does not imply everything.

In matters such as document review, public improvements, property accusation or disposal, and more performed by the city attorneys, much of these should be open to public records without call for redaction. Apparently, however, she is citing “privilege.”

Section 6254(k) states – Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

Goyette & Associates, per its contract with the city, is paid a flat rate of $30,000 per month. The lead attorney is designated as Phillips, with Tobias designated as an assistant. The copies sent to the Voice in response to its PRA request for copies of attorney billings showed no itemization of work performed since the formal contract began. A second request was made on February 8 asking for copies of itemized billings believed to be later received by the city from the law firm. A March 5 response indicated the Voice will be in receipt of those copies, “no later than Tuesday, March 6.”

According to Lampe, he has sent a copy of the paperwork of the second suit to city staff and city council, as council had complained learning of the first suit through the media.

In response to an interview request regarding the lawsuits, Lampe said he would make only one other statement.

“The level of transparency of the City of Tulare is pretty darn low.”

An attempt to reach Tulare city officials has gone unanswered. Mayor Carlton Jones once again hung up on this reporter. The former phone number for the Vice Mayor Maritsa Catellanoz is no longer a working number – the city clerk said she would give her a message and ask her to return the call. As of mid-day March 6, she has not. The assistant attorney, Tobias, said there was no comment at this time.