When Tom Yeadon served as City Attorney for East Lansing, finding out what he’d told City Council members was often challenging and time consuming, but not necessarily impossible.
Despite sometimes denying that citizens had the right to see his advice to City Council or City staff, Yeadon did simply release a number of opinions on controversial issues without City Council’s vote of approval, allowing the public to read them. This included opinions on many issues ranging from pandemic states of emergency, to whether citizens could hand out flyers as a form of protest, to whether the City could outlaw people hanging out on their roofs, to whether the City Manager had violated campaign finance law.
But since Yeadon’s contract was abruptly terminated by Council members Aaron Stephens, Jessy Gregg, and Lisa Babcock, and Foster Swift was hired in a 4-1 vote to take over as City Attorney roughly a year ago — at an annual cost of $500,000 (not including litigation) to the City — ELi has been told repeatedly that the public is not allowed to see any written legal advice provided by Foster Swift.
Now, this lack of transparency has frustrated some East Lansing citizens to the point that it has boiled over.
At last Tuesday’s discussion-only City Council meeting, East Lansing resident and landlord Mark Terry excoriated the five members of City Council, plus City Attorneys from the Foster Swift firm (none of whom were present), for a lack of transparency regarding legal advice used by the City to halt a proposed rental license transfer program in Terry’s neighborhood, Chesterfield Hills.
Terry, Diane Wing, and other members of Chesterfield Hills have been working for many years on rental license transfers, and Terry and Wing both expressed shock to Council that they would be told the matter was dead because of advice from the City Attorney that they could not even see.
According to the City staff’s agenda item attachment on the issue, “recently, Council was provided with additional context within a confidential memo. Essentially, there are a number of legal issues that ultimately lead staff and the City Attorney to recommend against the creation of a transfer mechanism for rental licenses.”
“What does that mean?” Terry asked the Council. “What’s the hold up, and what’s so confidential about a memo? A legal opinion? Why is there a legal opinion that I can’t see?”
Mayor Gregg replied that the Council was planning to discuss the issue later in the meeting. But Terry reiterated that he wanted to see the memo that would be informing their discussion that impacts his neighborhood, as this is an issue he and his neighbors have worked on for many years, including with prior City Attorneys.
Gregg insisted that she doesn’t have the power to order an opinion from the City Attorney be released. She said that to release any written legal opinion, it would take a majority-approval vote of the City Council.
City Manager George Lahanas backed her in this claim, even though this is something we have never seen claimed before, and a completely different approach than existed under Yeadon and prior Councils.
While City Council did decide later in last week’s meeting eventually to release the opinion in question — in October, in a special “okay for the public to see” version — this broader practice of secrecy remains the default, and keeps essentially all written legal advice from Foster Swift hidden from public view.
At Council last week, Gregg defended the practice of keeping all the City Attorney’s legal advice private, noting she wants to avoid any risk of contributing to the City being sued.
Gregg, Lahanas, and Foster Swift are claiming that legal advice to the City is all confidential and all automatically covered by attorney-client privilege.
By strict definition, attorney-client privilege is something an attorney can assert in legal proceedings to prevent themselves from being compelled to share the content of communications with a client. It’s not meant to be automatically invoked by a City Manager or Mayor on every possible topic on which a City Attorney provides legal advice.
Yet the Reporters Committee for Freedom of the Press notes that attorney-client privilege is, unfortunately, “widely asserted in situations when the specific requirements for its existence are not met, and the mere fact that a client has communicated with an attorney does not mean a protected attorney-client relationship exists.”
In other words, just because the City Attorney sent advice to staff or a Council member doesn’t mean it has to be protected from public view unless Council formally votes to release it.
Yet when ELi has asked to see legal advice Foster Swift has provided the City, we are consistently denied and told it must be withheld under attorney-client privilege.
That broad invocation of confidentiality and privilege is creating situations like last Tuesday, where Terry and Wing felt it necessary to go to bat to access legal advice they helped foot the bill for (through property taxes) and that affects them in a significant way.
The current practice doesn’t appear to comport with the City Charter or the practices of prior City Attorneys.
East Lansing’s City Charter, which can only be changed by voter approval, spells out the role of City Attorney, requiring that “written opinions” be provided when requested and then filed with the City Clerk:
“The City Attorney shall act as legal advisor to, and attorney and counsel for, the Council and all its members in matters relating to their official duties. He or she shall give written opinions to any official or department of the City when requested in writing by the Council or the City Manager, and shall file a copy of the formal opinion(s) with the City Clerk, who shall maintain the formal opinions of the City Attorney in chronological order by year, in loose leaf form.”
Yet in June 2021, when ELi reviewed the legal opinions kept on file by the Clerk, we discovered there were no opinions from Foster Swift in the file, despite the firm having been City Attorney for roughly eight months at that point.
When ELi has attempted to obtain all written opinions of the Foster Swift City Attorneys via the Freedom of Information Act, we have been told we cannot see anything — not even the subjects of requests or who made the requests.
ELi inquired with Mike Homier, an attorney for Foster Swift who also serves as one of the main City Attorneys for East Lansing, about the lack of written opinions on file with the Clerk.
“As City Attorney,” Homier wrote, “we regularly advise the City on legal matters – sometimes in writing, and sometimes via telephone or video conference. That legal advice is subject to the attorney-client privilege. To our knowledge, none of that advice has fallen within the scope of Section 7.6 [of the City Charter], which refers to formal written opinions requested in writing by the Council or City Manager.”
So, Homier says, the City Attorney has provided advice, but not any supposed “formal written opinions” as he believes them to be envisioned by that section of the City Charter.
Homier continued, “In our view, this section of the Charter contemplates that the Council or City Manager can request in writing a formal opinion that is intended to be released to the public. A legal opinion does not fall within the scope of Section 7.6 simply because it is on Foster Swift letterhead.”
Homier added that he doesn’t think they’re doing anything differently than Yeadon did. But the practice of not filing anything with the City Clerk does, in fact, appear to be a deviation from past practices of prior City Attorneys, including most recently Yeadon.
ELi’s review of the file of legal opinions kept by the Clerk show that former City Attorney Tom Yeadon had filed a number of written opinions with the Clerk, as had his predecessor, Dennis McGinty. Moreover, both Yeadon and McGinty regularly released opinions in draft Council agenda packets without waiting for a vote of approval of Council.
City Council is currently in the process of potentially replacing Foster Swift as City Attorney, putting out a Request for Proposals (RFP) for legal representation after reaching an impasse in contract renegotiations with Foster Swift.