Public Comment

The Sad Truth About Our Departing City Attorney

Tuesday November 06, 2007

Evelyn Giardina said in a recent letter to the editor, “And good riddance to you, Manuela. You built a career by telling the city manager and City Council what they wanted to hear, which is not the same as providing good legal counsel. Take your golden parachute and just go.” 

Unfortunately, the real tragedy is not reached by this sort of conception of what happened. Manuela Albuquerque started out her career with Berkeley by defending rent control and ended it by almost single-handedly selling Berkeley down the river amidst the rising tide of corporate fascism. She did not just tell the City Council what it wanted to hear, but was a powerful influence in forcing it to do what it did not want to do. Under the rubric of expertise at law, she twisted the law and lied about the law at every turn. She created the prevailing attitude in Berkeley that law is too difficult for the common citizen or even the elected officials and must be left to the experts, especially her. She exercised autocratic power in Berkeley until apparently the shame became too much for even herself to bear. 

Her most dastardly deed was of course to engineer the City Council’s undemocratic acceptance of the current LRDP, which commits Berkeley to infiltration by the fascist hordes who are speedily taking full control of Berkeley, America, and the world. So that the common citizen CAN understand the real facts surrounding LRDP lawsuit, I will quote from my own brief filed with the United States Supreme Court on appeal. The fact that the courts denied and suffocated the truth at every turn does not cause it to cease to be the truth. Rather it is a further indictment of the court system itself and what it has become, which is a far, far cry from even what our founding fathers intended. Let the citizens of Berkeley know the truth: 

Petitioner alleged in his motion that he and all other citizens of the City of Berkeley had been unlawfully excluded by an actual extrinsic fraud both from participation in the settlement process and from the case itself as potential interveners. The alleged illegality was based on a self-evident conjunctive construction of California Government Code Sections 54953.(a) and 54956.9 together with California Evidence Code Sections 1152 and 1154.  

The argument is simply that Section 54953.(a) requires all meetings of the legislative body of a local agency to be open except as otherwise provided in the Brown Act itself. Section 54956.9 provides the allowable exceptions pertaining to meetings of the legislative body with its legal counsel to discuss pending litigation. That section applies only “when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” However, Evidence Code Sections 1152 and 1154 provide that settlement offers and settlement negotiations can never be admissible in the litigation to establish either the validity or invalidity of a claim. Therefore, the discussion in open session concerning those matters, insofar as it is limited to a discussion of what occurred in the settlement negotiations, could never prejudice the position of the local agency in the litigation. Therefore, the exception does not apply and the discussion involving only what occurred in the settlement negotiations between the parties, as opposed to any further discussion involving legal analysis and weighing of options, was required to take place in public open session meetings. 

The rationale for the secrecy was stated by the city attorney as follows (see Appendix H):  

“The confidentiality agreement was actually signed at the city’s request, because the city has in the past had situations where during the pendency of a lawsuit comments are made or settlement discussions occur and then those discussions and comments are used in the litigation against the city.”  

It strains credulity that any city attorney could be so ignorant of the law. Rather, one must conclude that this was part of a conspiracy to deceive the public, whom the city attorney could assume would not be familiar with the law. This is made very clear by the confidentiality agreement itself, where the above concern is stated in Section 1, along with a mention of Evidence Code Sections 1152 and 1154. Again, it is inconceivable that well-educated attorneys could not realize that they were standing these code sections on their head by deriving a justification for secrecy from them, especially in light of the Brown Act and the recently added provision of the California Constitution pertaining to it, which were well-known to the attorneys. Rather, Section 1 of the Confidentiality Agreement was clearly a subterfuge for Section 2 of the Confidentiality Agreement, which disclosed its real and unlawful purpose (see Appendix G): 

“Both parties hereby agree that they will not disclose any of the information or documents exchanged during settlement negotiations outside the context of settlement of this Litigation. The parties agree that to the extent allowed by law, the information discussed or exchanged during settlement discussions will not be disclosed publicly.” 

This is clearly self-conscious subterfuge, because these two sentences are incompatible. The city attorney knew full well that the secrecy was not allowed to any extent, and yet she attempted to befuddle the masses into accepting a deprivation of their rights under the law. 


Peter Mutnick is a Berkeley resident.