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Topic: Does Gilcreast have a criminal record?
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El Supremo

I have been told that is the question Kate Fields asked Gilcreast when the vote came up on an add-on. The State Treasurer had to send a notice that Flint was sending items to RTAB and the City was not allowing time for the material to be properly reviewed. Thus many items weretabled.

This was after a complaint by Councilman Scott Kincaid was made to RTAB. At the same meeting City Administrator Sylvester Jones presented a new option to contract with Rizzo Services that council had never see.
Post Wed Feb 28, 2018 8:05 am 
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El Supremo

Attorney says Flint councilwoman wrongly leaked vetting info on mayor's advisor
Updated on June 12, 2017 at 2:33 PM Posted on June 12, 2017 at 2:32 PM

By Ron Fonger
FLINT, MI -- The interim city attorney says a councilwoman acted unethically when she leaked a confidential legal opinion, but the City Council might hire its own attorney because of how the leak was discovered.

Interim City Attorney Angela Wheeler has asked members of the council to consider censuring their colleague -- 4th Ward Councilwoman Kate Fields -- for violating the city's computer use policy by sharing the legal opinion marked "confidential" with more than 100 other email addresses.

Fields said it's the actions of the city's Department of Law that needs review after Wheeler also disclosed in a June 5 letter to the council that she used the Information Systems Department inside City Hall to find out which council member shared the legal opinion.

"I don't believe that material is confidential," Fields said of her decision to share the document. "I believe the public has a right to know."

Mayor Karen Weaver says she asked a top aide to Gov. Rick Snyder for the money to put her volunteer chief advisor and former campaign manager on the city's payroll.

Fields last week discussed the potential for the council to hire an outside attorney to investigate the propriety of Wheeler's investigation of council members' email accounts.

The city attorney declined to comment to MLive-The Flint Journal through city spokeswoman Kristin Moore, but in her letter to council, she called Fields' actions "a serious breach of attorney-client confidentiality" that led her to request an investigation into where the leak originated.

"I am asking that Ms. Fields immediately cease and desist from the publication or distribution of any and all confidential and attorney-client privileged information without permission of the Law Department, and that the City Council respectfully consider that Councilperson Fields be censured," Wheeler's letter says.

MLive-The Flint Journal could not reach Council President Kerry Nelson for comment on the situation.

The opinion Fields distributed concerned the vetting process for Aoine Gilcreast, who became mayor Karen Weaver's unpaid volunteer chief advisor after her election in November 2015.

Gov. Rick Snyder's spokeswoman Anna Heaton confirmed the state got word Weaver wants to put Aonie Gilcreast on the city's payroll.

Gilcreast has been described by Weaver as her "chief advisor" and former campaign manager but he wasn't required to undergo a background check.

Second Ward Councilwoman Jackie Poplar requested the legal opinion on the process used for vetting Gilcreast, who routinely appears at city meetings and appearances with Weaver and who has participated in job interviews with prospective city employees.

Wheeler's opinion on Gilcreast's vetting says "there is no uniform vetting process for volunteers that has been adopted by the Human Resources Department.

"Traditionally, department heads have been allowed to evaluate and assign interns and volunteers to their departments without any specific approvals or pre-screening by the city's Human Resources personnel," the letter says.

Wheeler concluded that Weaver herself completed an examination of Gilcreast's background, "not unlike what any department head may also do with a potential volunteer or intern ..."

The opinion says Gilcreast completed a confidentiality agreement "to protect against the divulgence of any confidential information and to limit the city's liability when it utilizes volunteers."

Fields is among those who have questioned Gilcreast's involvement in City Hall in the past.

In July 2016, council members asked Weaver for a description of his involvement in her administration but the mayor declined to answer questions about his role with the city at the time.

Weaver said in a February deposition that she asked a top aide to Gov. Rick Snyder for the money to put Gilcreast on the city's payroll but Gilcreast told The Journal last month that the proposal to pay him never moved forward because of resistance from the City Council.

Weaver gave the deposition in connection with a civil lawsuit filed against the city by former administrator Natasha Henderson.
Post Wed Feb 28, 2018 8:07 am 
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El Supremo

David Forsmark Jun 12, 2017
The city attorney is an idiot. Kate Fields is not an attorney, first of all, so she cannot violate attorney client privilege. Second, the City Council is the CLIENT of the City Attorney, therefore, the client can ALWAYS wave privilege.

After Stacey Erwin Oakes and now this idiot, the City of Flint sure needs to find someone else to vet city attorneys.
Post Wed Feb 28, 2018 8:09 am 
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El Supremo

Mays, who claims to be a legal expert, always tries to beat Kate Fields up with the allegation that she revealed confidential information. The City Attorney worked under former City Attorney Trachelle Young when she won an appeals court decision that overturned Judge Neithercutt when he denied council an attorney selected by Young. The City Attorney represents the City and that means both the executive and the legislative branches. It is no surprise that this attorney thinks she can only do what the Mayor wants.

The Concerned Pastors spent their money well and the 5 loyal council members will rubber stamp any motion by Weaver, even if they have o idea what they are agreeing to.
Post Wed Feb 28, 2018 8:19 am 
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El Supremo

The Flint Journal story never even bothered to ask a local attorney as to the issue of confidentiality. Arrests and prosecutions are a matter of public record unless expunged. Then they don't exist.
Post Wed Feb 28, 2018 8:22 am 
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El Supremo

Definition. A legal privilege that works to keep communications between an attorney and his or her client secret. The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath. Contrast with attorney's duty of confidentiality.
Post Wed Feb 28, 2018 8:25 am 
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El Supremo

Flint mayor's adviser, ex-county exec get six-figure salaries to boost city economy
Updated 3:42 AM; Posted Feb 27, 6:31 PM

By Oona Goodin-Smith ogoodins@mlive.com
FLINT, MI - One-third of the $3 million granted to Flint to boost the city's economic development will go toward the six-figure salaries of three people - including Mayor Karen Weaver's longtime volunteer adviser Aonie Gilcreast - chosen to lead the charge.

In a tumultuous meeting lasting long into the night on Monday, Feb. 26, Flint City Council voted in favor of signing off on contracts for three individuals appointed by Weaver to spearhead the city's economic development team, including:

A one-year, $150,000 agreement to hire former Oakland County Deputy Executive Matthew Gibb as a team consultant;
A four-year $108,000 yearly salary without benefits for Michigan Economic Development Corporation Regional Manager Linette Phillips to serve as deputy director of the department;
A four-year $120,000 yearly salary with fringe benefits for Gilcreast to serve as Weaver's chief adviser and outreach development liaison.
Because they are appointees, Phillips and Gilcreast were chosen by the mayor without a formal interview process, acting City Administrator Steven Branch said during the council meeting.

The trio will work to develop a mission statement for the economic development team to present to the Kellogg Foundation, Weaver said.

The mayor announced plans to hire an economic development team with the Kellogg Foundation's $2,957,800 four-year grant to Flint during a press conference on Monday, Feb. 19.

"We need a plan in place to retain and attract more people and businesses to Flint," Weaver said. "Businesses that offer good paying jobs for our residents. Once we accomplish that, we will have stronger neighborhoods and stronger schools and then our population will grow. That is what Flint needs to really bounce back."

A $3 million grant from the W.K. Kellogg Foundation will allow the City of Flint to hire a economic development team.

But in order to secure the funds from the Kellogg Foundation, the council had to act quickly, the mayor's administration said.

Presenting the nine-member council with the grant and candidates' resumes during Monday night's council meeting, Weaver and City Attorney Angela Wheeler said time was of the essence in signing off on the contracts to fulfill the timelines of Flint's state-appointed Receivership Transition Advisory Board and the Kellogg Foundation.

Though Third Ward Councilman Santino Guerra pushed for a special meeting for the council to speak with each of the appointees, members of Flint's state-appointed financial oversight board needed a vote on the grant by the morning of Tuesday, Feb. 27, in order to consider approving the grant at the next RTAB meeting, scheduled for Monday, March 5, Wheeler said.

Although the state board has stepped back to allow Flint more financial freedom on its day-to-day finances, because the near-$3 million grant affects the city's budget, it must be approved by RTAB before going into effect, explained Michigan Treasury Spokesperson Ron Leix.

According to a spokesperson from the Battle Creek-based Kellogg Foundation, the organization has been in talks with Flint leaders since the city's water crisis about "the future of Flint and its economic recovery."

The goal of the $2.9 million grant is to "support building the organizational capacity of the city's staff to plan, design and implement the city's economic development recovery" over the next four years, the Kellogg spokesperson said.

Some council members said they felt rushed into the decision-making process and questioned why the contracts were not brought before the body in a committee meeting for more discussion.

"In order to feel comfortable, I need time - I need time before the meeting to look at this," said Ninth Ward Councilwoman Eva Worthing.

"It's not a matter of not being a team player - it's a matter of not being able to do my due diligence," added Fourth Ward Councilwoman Kate Fields.

But others on the council railed against the scrutiny of Weaver's choices.

"This is the mayor's appointment - I mean, who am I to have anything to do with this?" said Fifth Ward Councilwoman Jerri Winfrey-Carter. "This is not coming out of the general fund, so I think ... we need to move forward and appoint Mr. Gilcreast for this appointment."

Second Ward Councilman Maurice Davis echoed his colleague's sentiments.

"I can't believe this," Davis said. "How could y'all seek out economic development department and then all we're gonna do is hash and back and forth between us and knock down everything y'all send our way, but yet we act like we want to get the city out the predicament we in. The people up here is acting like the mayor actually did something bad. The grant was a beautiful thing that they done."

Monday was not the first time Weaver has sought to pay Gilcreast, who has served as an unpaid volunteer adviser to the mayor since she was elected in 2015 and frequently represents the city in high-profile meetings.

Documents obtained by MLive-The Flint Journal in early 2017 showed the city drafted a professional service agreement and attempted to secure state funds for a salary and benefit package for Gilcreast as chief adviser totaling $120,000 per year.

A series of emails, letters and a professional service agreement showed Weaver had plans to hire Aonie Gilcreast with an annual salary of more than $100,000 plus benefits with funds from the state, according to documents secured by The Flint Journal from a Freedom of Information Act request.

In February 2016, Weaver helped to establish a nontaxable "Caring for Flint" 527 fund with limited disclosure requirements to help build capacity in city hall during Flint's lead-in-water crisis and help fund Gilcreast's salary.

"We knew we had a lot of needs," Flint Mayor Karen Weaver said of the decision to establish the fund. "We were trying to get those addressed."

According to his contract with the city to begin Monday, March 5, Gilcreast - a former business entrepreneur, according to his resume submitted to council - will be paid at a $57.69 hourly rate, totaling a $120,000 yearly salary, and is responsible to "collaborate with residents, stakeholders and other partners to identify issues and develop strategies to facilitate partnerships among community organizations, businesses, etc., and report directly to the mayor."

He will also receive Level 23 city benefits, including health care coverage, dental insurance, life insurance, personal time off, and is eligible to participate in the City of Flint Hybrid Pension Plan, according to his contract.

Phillips, who has worked for the Michigan Economic Development Corporation since February 2012, will receive a $51.92 hourly rate in Flint, totaling $108,000 per year, according to her contract.

As deputy director of economic development, Phillips will be responsible to "direct, manage, supervise and coordinates the activities and operations of the economic development, including developing programs and activities to attract and retain businesses for the city, coordinate assigned activities with other divisions, departments and outside agencies."

Per the contract, as long as Phillips maintains separate insurance and does not perform private work during her hours employed with the city of Flint, she will also be permitted to maintain her West Bloomfield-based business, Project Concepts LLC, which "works with companies organizations and community to provide business development services, documentation and partnerships," according to her resume submitted to council.

Gibb is currently the campaign director for 2018 gubernatorial candidate and current Lt. Gov. Brian Calley, according to an announcement in the Oakland Press from earlier this month.

In Flint, Gibb will be paid $12,500 per month from March 2018 through March 2019 for a total of $150,000, according to his consulting agreement.

The Lake Orion resident is expected to "assist the city in defining a pathway to a comprehensive plan," according to his agreement and will provide strategic planning and development readiness, asset understanding of community engagement, economic development identity and program development, post-water crisis opportunities and workforce development and talent.

According to the Oakland Press, Gibb left his post as Oakland County's deputy executive and economic director, at the beginning of this year for the private sector.

All three contracts and approval of the Kellogg Foundation's grant are slated to go before the RTAB on Monday, March 5.
Post Wed Feb 28, 2018 8:30 am 
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El Supremo

Flint mayor says shielded 527 fund was to build up city government
Updated on June 2, 2017 at 12:43 PM Posted on June 2, 2017 at 12:01 PM
By Ron Fonger
FLINT, MI -- Mayor Karen Weaver says she established a nontaxable account with limited disclosure requirements to help build capacity inside City Hall -- not to redirect donations made during the Flint water crisis.

Established 15 months ago as a 527 account, the Caring For Flint Fund isn't required to register or report to the state, can accept direct corporate contributions and is only obliged to report donors and expenditures if they exceed $25,000.

The funds are named for the portion of the Internal Revenue Service code that regulates them.

Documents related to the formation of Caring For Flint are among exhibits filed in a civil lawsuit against Weaver and the city by former city administrator Natasha Henderson.

Natasha Henderson drops contract claims against Flint, lawsuit moves ahead

Henderson filed a federal lawsuit May 9 in Detroit U.S. District Court claiming she was fired from her position after she claimed she asked the city attorney's office to investigate claims Weaver may have been telling city staff and volunteers to send potential water crisis donations to her own personal account, rather than the fund managed by the Community Foundation of Greater Flint.

Henderson claims she was fired in retaliation for telling the acting city attorney of her concerns that the mayor was laying the groundwork to redirect donations meant to help the city with the water crisis to her own funds.

Weaver said Thursday, June 1, that she's limited from speaking about specifics related to the lawsuit but said Caring For Flint was never intended to do anything but build up her administration and never got money intended for other purposes.

"We knew we had a lot of needs," she said of the decision to establish the fund. "We were trying to get those addressed."

In 2016, MLive found at least one-third of Michigan's 144 sitting lawmakers were connected to either 527 or nonprofit groups, many of which did not report donors.

Critics say the funds lack transparency.

MLive and the Michigan Campaign Finance Network teamed up to investigate 527 and nonprofit accounts.

Articles of incorporation of Caring For Flint indicate it would be financed by donations, fees, investments, gifts and grants and will be used to pay expenses incidental to holding public office.

Weaver said little if any money has been raised for Caring For Flint.

In a deposition in the Henderson lawsuit, the mayor said the 527 fund and a nonprofit that the law firm Miller Canfield helped her establish were set up to allow people to donate "if there are things I want to do and not use taxpayer dollars for."

Caring For Flint was formed Feb. 5, 2016, four days before Henderson reported Weaver directed a city employee and a volunteer to direct water crisis donations to Karenabout Flint, which she said had been set up by Miller Canfield.

David Waymire of Martin Waymire said he was working on ideas of how to raise funds for Caring For Flint just days after it was created.

Waymire said there were four areas that he believed the city could have used donations for -- lobbying in Lansing and Washington, D.C., communications and to help fund the salary of chief advisor Aoine Gilcreast, who has worked as a volunteer since Weaver was elected.

Waymire wrote in a memorandum Feb. 9 that Weaver should target large contributions from major foundations to fund Caring For Flint.

"It could have been useful if she had more capacity ... to manage this incredible crisis," Waymire said.

Fundraising plans for the fund were never fully developed, Waymire said, because the account was never funded.

Henderson's claims against Weaver resulted in an internal investigation carried out by attorney Brendon Basiga.

Basiga said in June 2016 that he found no wrongdoing by Weaver and his investigation could not corroborate allegations made against the mayor by Henderson.
Post Wed Feb 28, 2018 8:35 am 
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El Supremo

MLive, MCFN put spotlight on politically connected accounts
Updated on October 12, 2016 at 6:45 AM Posted on October 12, 2016 at 6:35 AM

By Emily Lawler elawler@mlive.com

In March, MLive Media Group teamed up with the Michigan Campaign Finance Network to investigate little known, politically connected accounts, which operate with limited oversight.

The investigation took months and involved reporter Emily Lawler and MCFN Executive Director Craig Mauger examining thousands of pages of documents and conducting more than 50 interviews.

The results: At least one-third of Michigan's 144 sitting lawmakers are connected to accounts that can take money from corporations or special interest groups. These funds, either nonprofits or 527 accounts, can help pay elected officials' expenses or fund charitable giving.

Secretive funds allow Michigan lawmakers to accept corporate cash

A third of lawmakers are connected to these types of funds.

Nonprofits only have to produce a public tax form known as a 990, which contains no donor information but broad expenditure details, if they raise more than $50,000 per year. And 527 groups have to disclose donors and expenditures, but only if they raise more than $25,000 per year, according to IRS rules listed on the federal website.

MLive and MCFN combed through official records for these groups maintained by the Internal Revenue Service and the Michigan Department of Licensing and Regulatory Affairs, along with voluntary disclosures some corporations release detailing their political giving.

MCFN requested public filings, known as 990s, from 95 accounts that appeared to be tied to elected officials, and sent letters asking for a voluntary disclosure of donations. MLive, meanwhile, surveyed every state lawmaker asking them to voluntarily disclose their connections to these hard-to-trace groups. Just seven of the state's 144 lawmakers responded, all of whom said they did not have a nonprofit or 527.

The investigation connected 50 lawmakers, plus state Republican and Democratic parties to such accounts.
Post Wed Feb 28, 2018 8:37 am 
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El Supremo


Topic: New lawsuit about Weaver's ethics and staff-

2016 0711 Council 2

subject: Council
From: jstaples@att.net
date: 7-11-2016 6:33 p,
To: Sylvester Jones
Steve Branch
"Gil" Gilcreast <gilgilcreast@gmail
cc: Woodrow Stanley <wordswithwoods@aol.com
Joe munem-Al Jordon-Chuck Rizzo- kristen Moore

All: I hope your days are going well.
FYI: I spoke with gil early this morning and he informed me the administration was not intending to bring the garbage resolution tonight and that he was shooting for a special meeting Wednesday or Frida of the week as a result we are not up there.
Within the last couple of hours we received word that council may be trying to add it themselves, (which Wood and others believe is procedurally impossible.). In any event with the administration firm, city statutes being what the are with respect to low bid language and the RTAB fully prepared to to back the administration, I'm hoping you guys don't have endure yet another buffoonery filled night.

Tomorrow, I will forward to Kristen and copy each of you the advance material we discussed Friday so an orderly transition to better move cost effective service can continue. When the special meeting is scheduled please let me know so I may inform the team
Thanks to all,
sent via blackberry from T Mobile
Post Thu Jun 08, 2017 4:48 pm
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El Supremo

This e-mail has been posted as one of the many e-mails sent between the city and representatives of Rizzo environmental
Post Wed Feb 28, 2018 9:30 am 
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El Supremo

nd State tax payers should be OUTRAGED about the possibly of their (our) tax dollars being pimped by Gil. So what Weaver has done is stepped back and opened the door for Gil to be the Mayor. I am not at all surprise because I knew that this was apart of the plot from the beginning of her campaign. Gil walked in on day one being the Mayor. And he will be the Mayor for as long as Weaver is Mayor. In reality Weaver and Gil has successful BAMBOOZLED the people. WOW how devastating. This kind of stuff happens because we the people sit back and keep our mouths shut. That's the reason Trump is the President and Gil has taken over the City of Flint. When will we ever learn?
Post Sat Feb 11, 2017 2:52 pm
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El Supremo

El Supremo

United States Disrict Court
Easternn District of Michigan
Southern Division

United States of America vs $57,922.00
Civil No. 91-cv-73819 DT
Judge Horace W. Gilmore

Verified Claim of interest in $57,922.00 United States Currency
"I, Aonie Gilcreast, have and do hereby claim an ownership in $57, 922.00 U.S. Currency which constitutes the subject matter of United States v $57,922.00 U.S. Currency, Civil No. 91-cv-73819-DT now pending in the United States District Court, Eastern District of Michigan."
dated and signed August 9, 1991.

Complaint for forfeiture
5) There is probable cause to believe that the defendant currency was the proceeds of an illegal gambling operation which violated laws of the State of Michigan, to wit: MCL 750.301and/302; that this illegal gambling operation involved five or more persons who conducted, financed, managed, supervised, directed, or owned all or part of such business; and said illegal gambling had been in substantially continuous operation for a period in excess of thirty days or had gross revenue of $2,000 in any single day. in violation of Title 18, USC 1955. The facts supporting this probable cause determination include, but are not limited to the following:

a) On July 23, 1987, an FBI informant (FBI-1) told Special Agent Robert D. Coffin that Aonie Gilcrest ran a numbers gambling business in the Flint area. FBI-1 had provoded information on several previous federal affidavits and had never provided any information that had been found to be knowingly false or unreliable.

b) On December 16, 1987, FBI-1 stated that Gilcreast was using a telephone at his residence (at 4322 East Mt. Morris Rd, Mt Morris Twp., Michigan) for betting . Drivers license records and telephone records showed that Aonie and Frances Gilcrest lived at 4322 east Mt. Morris Road in Mt. Morris Township, Michigan.

c) On March 7, 1988, D/S Juhasz, from the Michigan State Police, seized four plastic garbage bags from the curb in front of 4322 East Mt. Morris Road. Inside these bags were found numerous items of evidence, including slips of paper apparently stating daily amounts of bets ("business") placed with numerous numbers of runners (identified by code name) ; amount of winning bets ("hits") for each runner; and the resulting gain or loss. The dATES RANGED FROM "2-15-88 " until "3-5". There were adding machine tapes adding six daily numbers to reach a weekly total. There were slips showing winning numbers for both the Michigan and the Illinois State lotteries. One "week tape" totaled $27,992.10.

d) On march 10, 1988, a search warrant was authorized by United States magistrate-Judge Marc Goldman, Eastern District of Michigan, Flint, for the residence at 4322 east Mt. Morris Road. Seized during the execution of the search warrant were business records, a numbers slip, $57,922.00 in U>S> currency, payroll checks, and numerous other financial documents.

e) The seized gambling and business records were forwarded to the FBI for analysis. The analysis indicated that wagers totaled $27,486.52 on 2/15/88 and 415,199.83 on 2/16/88. In addition a fifty-fifty "split book" was reviewed. Six individuals were identified by initials and code as being agents in this operation. Also, evidence indicated Gil, Diane and Juli were identified as being involved and/or associated with the numbers operation. Latent fingerprint examination revealed that Frances Gilcrest had possessed some of the seized documents.

f) Aonie Gilcrest had been arrested by the Flint Police Department in approximately 1980 for Frequenting a gambling joint.

The United Staes Attorney Stephen J. Markham and Joyce Todd, assistant U.S. Attorney signed the documents requesting forfeiture of the money.

The Civil Cover Sheet also indicated under forfeiture/penalty "625 Drug related seizure/property although other documents did not elaborate.

Consent Judgement of Forfeiture by Judge Nancy G. Edmunds ordered 90% of the currency would be forfeited to the United states of America. Aonie Gilcreast, through his attorney Christopher A. Andreoff, received 10% or $5,792.20.

"The parties further stipulate that as provided in Title 28 USC 2465, the United States and or its agents had reasonable cause for the seizure of defendant currency"
Post Wed Feb 28, 2018 9:45 am 
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El Supremo

civil not criminal, but if a liquor license was involved there may be other violations.

98-063563-CZ JUDGE FARAH FILE 08/06/98 ADJ DT 06/29/01 CLOSE 06/29/01

P-43590 810-235-9000 P-35743 810-964-8353

P-35743 810-964-8353 P-43590 810-235-9000
Post Thu Feb 23, 2017 8:07 pm

El Supremo

Aonshea Inc. was a refreshment distribution system by Gilcreast that operated on Flint golf courses. My recollection is Aonshea used females on golf carts to distribute. The City sued and eventually received an accounting of what funds were owed to the city .The case was bumped over to the county district courts and was not settled until 2001, A proposed settlement was to go to council on 10-6-1999, but it never happened and several mandatory settlement meetings appeared to be unproductive.The case originated under Stanley's administration and was initially head by Judge Ransom. There was a question of liability over a liquor license. The judgement for the City was $1,784.00 and Court Costs while Gilcreast's counterclaim was denied for "no cause for action".
Post Wed Feb 28, 2018 9:51 am 
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El Supremo

PDF]the attorney-client privilege and the municipal lawyer - Goodman Law
Case law generally refers to this as encouraging full and frank communication between attorneys and their clients.6 Courts have also noted that the privilege promote[s] broader public interests in the observance of law and .... the mayor, members of the city council, the city manager, various department heads, and agency.
The Government Attorney-Client Privilege in a Local Government ...
www.cityethics.org Blogs Robert Wechsler's blog
Apr 16, 2011 - In that report, filed on January 29, 2010, the IG reported that "the City has begun routinely invoking the attorney-client privilege to preclude the IGO from obtaining key documents in investigations, including in employment investigations. For example, the City asserted the privilege and withheld documents in ...
Post Wed Feb 28, 2018 11:53 am 
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El Supremo

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Home Blogs Robert Wechsler's blog
The Government Attorney-Client Privilege in a Local Government Investigatory Context
Saturday, April 16th, 2011
Robert Wechsler
Is the attorney-client privilege, in the context of an inspector general's (or, for that a matter, an ethics commission's) investigation of misconduct in city government, "sacred," as Chicago's corporation counsel insists? Is it even appropriate?

This is a long post that will be fascinating to many, will raise hackles in some, but will be of less interest to others. If you want to cut to the chase, read the summary paragraph at the end and move on.

A year ago, I wrote a blog post about an Illinois circuit court decision in the case of Ferguson v. Georges, where it was decided that Chicago's corporation counsel could redact documents subpoenaed by the city's inspector general on the basis of attorney-client privilege. I gave many reasons why, on the basis of law and public policy, this decision was wrong.

The treatment of attorney-client privilege in a government investigatory context is relevant to ethics commission investigations as well, because ECs too usually have subpoena power. In fact, in some jurisdictions, it is the IG's office that performs ethics investigations.

Chicago's IG appealed the decision, and oral argument was held on March 24, 2011. Taking into account what was said by the only judge who asked questions of the IG's counsel, it doesn't look good for the use of subpoenas in local government investigations of high-level officials in Illinois.

Background: The IG's Report
This is Chicago, where the Shakman Decree, seeking to control patronage through the federal courts, is still active (see my blog posts on Shakman-related matters). In March 2009, the federal district court overseeing the Shakman Decree directed Chicago's IG to submit "a report to the Court summarizing (i) his investigations of political discrimination in connection with any aspect of employment with the City; (ii) any recommendations for corrective or disciplinary action he has made; and (iii) his views with regard to the Citys response to those recommendations."

In that report, filed on January 29, 2010, the IG reported that "the City has begun routinely invoking the attorney-client privilege to preclude the IGO from obtaining key documents in investigations, including in employment investigations. For example, the City asserted the privilege and withheld documents in an investigation relating to the hiring of a former high-level City employee through a sole source contract. In fact, the City now routinely adopts the position that it need not provide the IGO with information that it characterizes as 'privileged.' If the conduct and decisions of high-level City employees are cloaked from the IGO under the auspices of a wholesale invocation of privilege, it is difficult to conceive how substantial compliance with the Shakman decree could ever be obtained."

In Ferguson v. Georges, the corporation counsel asserts that she is required to take the attorney-client privilege into account in dealing with the IG's request, or she could be in violation of the Rules of Professional Conduct. But the IG report points out that,"The importance of this matter to the City appears not to be borne merely out of a cautious impulse by the City to steer clear of any possible breach of the attorney-client privilege. To the contrary, the Corporation Counsel has publicly asserted in a hearing before the City Council that even if the Chancery Court were to issue a ruling favorable to the IG on the privilege issue, she would seek to override an adverse ruling by seeking an amendment to the Municipal Code that adopts her position."

"My Privilege Is Sacred"
In fact, according to the report, in a hearing before a city council committee, the corporation counsel said, "If a court held that I would have to submit these documents to the IG because of statutes within the Municipal Code, Id probably ask you all to amend the Municipal Code to say that my privilege is sacred."

Note those last four words, "my privilege is sacred." First of all, it is not the corporation counsel's privilege; it is her client's privilege. Second, no privilege is sacred. As one of the appellate court judges told the assistant corporation counsel arguing the case, "a privilege is not a right." And even rights are not sacred; they are balanced against other rights, and obligations.

These four words show how emotional the issue of attorney-client privilege is to lawyers, how prejudiced they are in its favor, and how blind it makes them to public policy considerations that are undermined by this privilege. This is why judges, who are also lawyers, have generally discriminated in favor of the privilege, even when other policies and even laws militate against raising this privilege or act effectively as waivers by the client. Remember that the client here is the public and its representatives, that is, the very people who gave the IG the power to investigate city officials, who gave themselves an obligation to cooperate, and who made no exceptions for attorney-client privilege.

Reasons Why Chicago Documents Should Not Be Privileged
In two appellate briefs (attached; see below) and in the oral argument, the IG set out four reasons why the requested documents should not be protected by the attorney-client privilege. I add to the IG's arguments.
1. Every official owes an express statutory duty of full cooperation to the IG. Because they have this duty, the IG argues, officials have no expectation of confidentiality with respect to matters that may be investigated by the IG. I would argue that, because of this duty, they have an obligation to waive whatever privilege they may have.

2. The IG and the city share a common interest in the goal of uncovering and eliminating government misconduct. Because of this common interest, the documents are effectively staying within the same political entity, and they are being used for a shared purpose. Therefore, the purpose of the privilege, to protect confidential information, does not even exist. It is not even confidential information.

3. Obstructing an investigation by insisting that documents are privileged poses a risk of undermining public trust in the integrity of the government and its commitment to serving the public interest. I would translate this into the statement that a mayor, or other official, who would not waive the attorney-client privilege will look like he is hiding valuable information from the office responsible for investigating government misconduct.

4. The Rules of Professional Conduct recognize that attorney-client privilege does not apply to government attorneys the same way it does to private attorneys. A comment to Rule 1.13 reads, "[W]hen the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved."
A Privilege Based on Membership, Not Function
I go further than this. I believe that government attorneys are government first, and attorneys second. Let me give you an example that makes this statement more clear. I am not a member of any bar association. I administer a public campaign financing program in New Haven. When the board members have questions about the relevant ordinance, or other laws and policy matters, they ask me. I deal with legal issues all the time. If I were a member of a bar, the Chicago corporation counsel and, I think, the majority of government attorneys, would say that what the board members said or wrote to me would be privileged, and no one would have an obligation to waive this privilege, even if an inspector general or ethics commission subpoenaed the documents and the officials had an obligation to cooperate with them. However, because I am not a member of a bar, what the board members said or wrote to me would not be privileged at all.

The privilege is all or nothing, based not on my role as a public servant providing information about laws, but on whether or not I am a member of a bar association. This privilege applies to attorneys even when they are not giving legal advice, but not to non-attorneys when they are providing information about laws.

It is absurd to base a privilege on membership rather than function. Such a position allows a government official to place her personal interest in protecting herself from an investigation ahead of the public interest in discovering misconduct by government officials. To do this, all she has to do is consult with the corporation counsel's office.

The Obligation to Be Transparent
The briefs talk on and on about laws and rules and decisions, but there is very little case law relevant to this situation, and the reason is that attorney-client privilege is rarely questioned. It is, in fact, treated as sacred, even in a governmental context.

By focusing on laws and rules and decisions, both parties and the judges ignore one very important issue: do government officials have an obligation to waive the attorney-client privilege? Not only do Chicago officials have an express obligation to cooperate. But, like most officials nationwide, they are also subject to a Freedom of Information Act that creates an obligation to be transparent. Ordinary clients have neither obligation. This difference in obligations alone is enough to to make a government official's attorney-client privilege a pale thing compared to an ordinary client's.

The FOI Act sets forth exceptions to this obligation to be transparent, but none of the exceptions invokes the attorney-client privilege. There is an exception for litigation, but it is not because litigation involves lawyers. Litigation is excepted to prevent the other side from discovering government attorneys' litigation-oriented work product. It is a practical exception, not one that recognizes one profession's privileges as a more important public policy than transparency.

Is It Really Worth It?
Think how it looks to a citizen of Chicago. For decades, your city government has had the worst patronage problems in the country, including extensive fraud and waste, and you're lucky enough to have had an IG's office created to investigate it and a federal district court to keep the pressure on. And then the corporation counsel, hired by and accountable to the mayor, raises this special privilege on behalf of the mayor whose administration is being investigated. And the privilege doesn't even seem relevant to government, because a corporation counsel's client is the public, after all, not any individual. And this apparently irrelevant privilege, invoked apparently by someone who is being investigated (no one seems to have had the courage to say he refuses to waive the privilege), is used to keep the IG's hands off numerous documents and parts of documents relevant to its investigation. Then a judge, who is also a lawyer, puts this privilege ahead of the public interest in honest government and transparency. And then more judges, also lawyers, do the same thing . . .

Can this possibly do anything but undermine the public's trust in our government and our legal system? Could this possibly be worth whatever value the attorney-client privilege has in this context?

An Issue That Can Make a Seasoned Judge Nave
I'd like to end this post with another unbelievable statement that shows how hard it is for a lawyer to get her mind around the possibility that the attorney-client privilege, in this context, is poor public policy. This time it is something one of the appellate judges said during oral argument. Here's the lead-in from counsel to the IG:
If the corporation counsel, the mayor's lawyer, is able to obstruct ... investigations by asserting the authority of the attorney-client privilege, what, Your Honor, would the consequence be? Every time a sensitive investigation went forward and people were concerned about the investigative capacity of the inspector general, wouldn't they rush over and talk to the corporation counsel ahead of time, thereby to insulate from his investigative capacity the documents and the conversations they wanted to preserve as safe? And wouldn't the public see through that ruse ...
And here is the judge's response:
I think it's unrealistic to suggest that someone would suddenly give information that would be protected, for the sole purpose of ... that makes no sense to me. ... The one portion of your remark, that this would suggest that people would suddenly go to the corporation counsel's office to give them information that would be detrimental to their own person...
Remember, this is Chicago. What but something as "sacred" as the attorney-client privilege could lead a seasoned judge to see as nonsense the possibility, even the likelihood, that Chicago officials would use the attorney-client privilege to protect themselves from an investigation into their conduct?

Pulling It All Together
The attorney-client privilege is not sacred. In fact, in a government context, where the attorney is neither private nor independent, where the client is not private, where both attorney and client have an obligation to cooperate with the IG as well as a fiduciary duty to make government ethical, and where there are clearly stated rules concerning the transparency of government documents, that provide no exception for officials who are members of a bar, where there is arguably no confidential information at all (at least in this context), what role should this privilege play at all?
Post Wed Feb 28, 2018 12:04 pm 
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El Supremo

Note those last four words, "my privilege is sacred." First of all, it is not the corporation counsel's privilege; it is her client's privilege. Second, no privilege is sacred. As one of the appellate court judges told the assistant corporation counsel arguing the case, "a privilege is not a right." And even rights are not sacred; they are balanced against other rights, and obligations.
Pulling It All Together
The attorney-client privilege is not sacred. In fact, in a government context, where the attorney is neither private nor independent, where the client is not private, where both attorney and client have an obligation to cooperate with the IG as well as a fiduciary duty to make government ethical, and where there are clearly stated rules concerning the transparency of government documents, that provide no exception for officials who are members of a bar, where there is arguably no confidential information at all (at least in this context), what role should this privilege play at all?
Post Wed Feb 28, 2018 12:06 pm 
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