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The city attorney’s chief of staff, Gerry Braun, is claiming messages he sent to a City Council office are not public records, citing attorney-client privilege. Braun is not an attorney. If that reasoning holds up, he’d be the first political chief of staff who can also claim to his counterparts that if you share the messages he sends to you, you are committing a crime.
Last year, Mara Elliott surpassed two other Democrats, who had more money and endorsements, to advance to the runoff election for San Diego city attorney.
In an instant, she leaped from underdog to favorite.
That’s when Gerry Braun became an important adviser. Braun earned a job when Elliott won the position in November.
Braun is an exceptional writer. He was a longtime reporter, writing coach and later metro columnist for the Union-Tribune. When he left that job in 2008 to work for former Mayor Jerry Sanders, he became special projects director. He spent years trying to organize the doomed 2015 Balboa Park celebration.
When that fell apart, Braun became former City Attorney Jan Goldsmith’s spokesman. He has been a lot of things.
But one thing Braun has never been is an attorney.
So I was especially confused when, after requesting messages between Braun and two City Council offices following Elliott’s explosive memo blowing up the vacation rental debate, the city attorney’s office rejected releasing the records.
They claimed the communications were protected under attorney-client privilege.
Braun’s position in Elliott’s office has always been a bit awkward. Elliott named him chief of staff.
But chief of what staff? Does he supervise working attorneys? No recent city attorney had a chief of staff, let alone a top manager who was not an attorney.
Braun did not respond to a request to discuss his role with the city attorney.
The awkwardness has been a subject of discussion in City Hall since Elliott took office. He not only carefully manages Elliott’s press releases and communications and her public appearances, but also her relationship with other city leaders.
And it’s a curious time in city politics. The mayor is obsessed with the hepatitis A crisis and reluctant to take significant positions or outline much in the way of vision. The City Council president, Myrtle Cole, is by far the least vocal or prominent of the politicians to hold that role since it was created in 2006.
In that vacuum of political leadership, Elliott has soared, proudly wielding the levers of power her office has. Braun has managed it the whole way.
One example of that power is the memo she dropped just hours before a deadline to advise the City Council on two policies that had been proposed to regulate short-term vacation rentals.
Elliott says she didn’t intend to scuttle the proposals. Immediately, though, Cole canceled a long-anticipated hearing on them. Once again, the city would punt on a dilemma that has bedeviled it.
The delay frustrated the City Council, and I heard that Braun had some interesting interactions with Council staff members.
I requested messages between Braun and two City Council offices under the California Public Records Act.
The city attorney’s office acknowledged that messages from Braun existed but said it would not release them.
I replied that there must be a mistake. Braun is not an attorney. I contacted our own attorney, Felix Tinkov, who pressed the case.
Bill Gersten, a deputy city attorney, explained it like this.
“The attorney-client privilege extends not only to attorneys, but also to third parties employed by attorneys in the furtherance of providing legal representation to their clients,” Gersten wrote.
There seems to be a consensus among attorneys I spoke with that, yes, if Braun was acting as a vessel for a communication from the city attorney to her client, then his work is within the bubble of attorney-client privilege.
But this brings up all sorts of questions. Councilwoman Barbara Bry’s office responded to my inquiry that they had no other records that fit my request except a benign email.
Thus, the only messages that fit my request must be between Braun and either Councilman Chris Ward or his chief of staff, Molly Chase.
If it’s Chase, that’s interesting. Are all messages between Braun and any city employee, like Chase, privileged? If she shares any of them, has she broken the law?
That may seem ludicrous, but Elliott and Braun have pressed the case that Councilman Chris Cate did something “more than commit a crime” when he broke attorney-client privilege by passing a confidential memo on to the developers of SoccerCity. He had no right to unilaterally break the attorney-client privilege, Elliott claims.
She referred the alleged crime to the district attorney, who referred the case to the state attorney general for investigation and possible prosecution.
It has left people in City Hall understandably wary of messing with attorney-client privilege. Could Elliott argue they’re breaking the law merely by making public or sharing messages from Braun, who’s not an attorney?
“It appears the city attorney has decided that, Mr. Braun, a former reporter with no legal training I am aware of, is to be treated as if he only, and always, conveys confidential legal advice to her clients,” said Tinkov.
Elliott’s regular foe, attorney Cory Briggs, made the case that attorney-client privilege could protect Braun’s messages.
“Anytime Gerry is a conduit for communication of a confidential nature, then Gerry’s messages are privileged,” Briggs said.
But when I asked who the client in the attorney-client relationship was if the recipient of the messages was Chase, Briggs chortled.
“The client is whomever the people who want secrecy want it to be at any given time,” he said.
I’m not sure what Braun sent to Ward or Chase. But he sent something. Something Elliott and Braun do not want us to see.
We might have just entered a strange new world where Braun is an enormously powerful actor.
Braun’s job, after all, is to press the political position of his politician boss. That’s what a chief of staff does. City Hall is full of them.
But he’d be the first political chief of staff who can also claim to his counterparts that if you share the messages he sends to you, you are committing a crime.