Lois Kazakoff in the SF Chronicle: Mayor muzzled from speaking about crude by rail

Repost from The San Francisco Chronicle
[Editor: Minor correction – the legal opinion that would muzzle the Mayor was written by an outside contract attorney, not by City Attorney McLaughlin.  That said, Mayor Patterson has stated publicly that the city attorney has advised her not to participate “in any way in any city decisions” relating to Valero’s pending permit decision, and to refrain from sending out “e-alerts” about the project and related crude-by-rail issues and to not engage in public discussion of the matter.  UPDATE: late on Nov 18, the Benicia City Council voted unanimously to waive attorney-client privilege in order to make the opinion available to the public.  DownloadJenkins Opinion Re Mayor Patterson-Valero ProjectDownload: Mayor Patterson’s attorney, Diane Fishburn’s opinion, and Fishburn’s letter to the City Attorney.  – RS]

Mayor muzzled from speaking about crude by rail

By Lois Kazakoff on November 18, 2014

Opponents in the national debate over climate change will enter the ring tonight in the City Council Chambers of the small riverside city of Benicia (Solano County). City Attorney Heather McLaughlin has thrown down the gantlet with this small item on the City Council agenda.

CONSIDERATION OF WAIVING THE ATTORNEY-CLIENT PRIVILEGE FOR THE OPINION REGARDING MAYOR PATTERSON AND THE CRUDE BY RAIL PROJECT. (City Attorney)

Buried in the legal language is a debate over Mayor Elizabeth Patterson’s First Amendment Right to communicate with the citizens of Benicia about Valero’s pending land use application to modify its refinery to receive crude by rail rather than crude by tanker ship. At stake is a robust democratic discussion over a decision that will affect not just Benicia but every community on the rail line between the Bakken Oil Shale fields in Montana and the Dakotas and Valero’s Benicia refinery.

McLaughlin has written a confidential opinion on the mayor and the crude by rail project. It is her view that she cannot release the document unless the majority of the five-member City Council waives the attorney-client privilege by which she is bound. “At least three have to decide to make the opinion public,” she told me.

Benicia is a town of 28,000. Valero is its largest taxpayer and a significant presence in the community. Beyond the smokestacks and coolers visible from I-680, the refinery’s footprint is visible downtown and throughout the city. As part of a decade-old legal settlement, the city received $15 million from Valero that it has used to fund median landscaping projects, community gardens, education programs, water audits for homes and construction of community center with sustainable building materials. But should a mayor or any other elected official be kept from speaking about a corporation with a large influence  in the town they lead?

Early this summer, when the city attorney advised the mayor that she should not send e-mail “e-alerts” to her constituents about Valero’s pending environmental impact report so as not to give an appearance of bias, Patterson hired an attorney. In a letter, the law firm wrote that the mayor did not have a disqualifying conflict of interest in the Valero matter. And further, quoting state law, “As a public official you certainly not only have ‘a right but an obligation to discuss issues of vital concern’ to your constituents and to state your ‘views on matters of public importance’.”

Patterson has told me, “The Valero project has broad issues and concerns. I was elected by people who know that I had knowledge of these concerns. I’ve campaigned on that, I’ve written on that. My constituents expect me to represent them.”

And she should. And the city is wrong to try to muzzle the mayor.

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