The Jefferson Parish Council is moving again to restrict Inspector General David McClintock’s access to records that could fall under the umbrella of attorney-client privilege, inflaming a long-simmering fight between the watchdog and some council members.
The latest clash resurrects a dispute that dates back to last fall, though with a slightly different focus: concern by some council members and an outside attorney that giving McClintock the ability to look through any parish record could provide people suing or being sued by the parish a way to access confidential discussions about their case.
McClintock said those fears were unfounded and that clamping down on what types of information he can get from the administration or council offices would set back investigative efforts and provide a way to hide wrongdoing.
“My position is that the parish is right where it belongs,” he said.
The issue touches on a number of the same debates that have characterized previous fights over access, including whether the Inspector General’s Office — which was set up to be independent from the council and administration — is a part of parish government and whether the office can have direct access to documents and emails or if it must go through a third party.
Councilman Paul Johnston criticized the current setup Wednesday, likening the IG’s ability to look through council members’ documents without warning to living in a communist country. He said he would comply with any requests for information from the inspector general, however.
Council members introduced a bare-bones ordinance dealing with the issue, setting it up to appear on the agenda for the next council meeting. The ordinance has not actually been drafted, however, and the details of what it will say were unclear Wednesday.
At present, members of the inspector general’s staff can look at parish emails without putting in a request for them — though McClintock said that could be done only after going through two layers of officials in his office.
Based on concerns raised by some council members Wednesday, it seems likely that the council’s ordinance will let someone in the Parish Attorney’s Office screen requests from the inspector general and refuse to produce documents if that person believes they are protected by attorney-client privilege. It also will likely bar members of the IG’s Office from sitting in on closed-door sessions between the council and its attorneys, which representatives of the inspector general have monitored on occasion.
The dispute has been going on since last fall, when the Parish Attorney’s Office discovered McClintock had been given access to the parish’s email servers. Parish Attorney Deborah Foshee immediately blocked that access, though it was later restored by Parish President John Young.
Young’s decision to restore the access came after the parish sought an opinion from the state Bar Association on whether the arrangement violated attorney-client privilege. The response was not publicly disclosed, but access was restored as soon as it was received.
“I stand where I stood before: unfettered and unlimited access,” Young said Wednesday. “It’s about transparency, complete transparency, so my position remains the same.”
Young said it was too soon to say whether he would veto the measure if it is passed by the council.
The newest push to limit the inspector general’s access is based on an opinion from attorney Dane Ciolino, a law professor at Loyola University who frequently comments on cases involving the state’s ethics laws. Ciolino’s opinion was sought by outside attorneys working for the parish in its ongoing legal dispute with Redflex over the red light camera system the company formerly ran for Jefferson, Parish Attorney Deborah Foshee said.
The contents of Ciolino’s memo have not been disclosed, and Foshee said it is itself protected by attorney-client privilege.
The details of that opinion were apparently discussed in an executive session about the Redflex case during the council’s meeting Wednesday. Ciolino declined to comment on what was discussed during that meeting, but he said allowing the Inspector General’s Office to access privileged communications would amount to waiving that privilege.
That could have the effect of allowing anyone involved in those cases to get access to those records, which could include discussions of the facts of the case, strategy or other issues that would put the parish at a disadvantage in court, Ciolino said.
“It’s not in the parish’s best interest to allow their adversaries to know their strategies, positions, settlement and whatnot,” he said.
The state’s Code of Evidence, which governs legal matters, says attorney-client privilege is waived if “any significant part” of the confidential information is voluntarily disclosed to an outside party. However, the rules stipulate that a disclosure “which was compelled or made without opportunity to claim privilege” does not count as waiving the confidential nature of the information.
Councilman Ben Zahn, who has been critical of the Inspector General’s Office in the past, said Ciolino’s opinion crystallized the issue.
“I think what’s important now is this is not a parish attorney-inspector general war,” Zahn said. “This is a situation where it’s our obligation and duty to uphold state law.”
McClintock has said the access he receives does not violate attorney-client privilege, in part because he himself is part of parish government and thus covered by the same privilege. He also argued that allowing an outside entity to determine what is or is not covered by the privilege could alert those under investigation or provide a way for parish officials to hide incriminating documents.
“I believe we absolutely are in the right to access emails without notice,” McClintock said.
Follow Jeff Adelson on Twitter, @jadelson.