The appearance of an outside legal adviser on the city’s payroll could spell trouble for one or more council members following a tumultuous July 1 meeting.

The city of Kirkland has hired David Boerner, a Seattle University law professor and legal expert, to help sort out the turmoil engulfing City Council after a council member gave out a set of privileged memos during a July 1 quasi-judicial hearing. Formerly a King County deputy prosecutor, Boerner has taught ethical issues at Seattle U. for over 25 years.

He will discuss with individual council members a variety of issues related to disclosures Councilman Tom Hodgson made to the appellant, CiViK, in the Bank of America (BofA) redevelopment appeal. Hodgson claimed the entire process had been unfair to CiViK because the Council discussed litigation risks in a memo before the appeal started. He appeared to waive his attorney-client privilege by giving CiViK the documents at the July 1 meeting, despite protests from other council members and City Attorney Robin Jenkinson.

The events from July 1 prompted a buzz on local blogs, as well as several letters and e-mails to the city calling for the resignations of either Hodgson, Mayor Jim Lauinger, or both. A Web site, which seeks a recall of the two council members based on their actions at the meeting, has also sprung up.

The disclosure of “confidential” materials by city officials or council members is both a violation of municipal code and state law, carrying a $500 fine and possible forfeiture of office.

Boerner has worked with cities on legal matters in the past. In 1999, he advised the city of Bremerton and Kitsap County in a criminal matter involving the sheriff’s step-son, who pleaded guilty to murder and was sentenced to 23 years in prison. Reached by phone last week, Boerner acknowledged his work advising the Council, but declined to comment on his exact role. “They could speak to me, if they wish to,” was all he would say.

According to the city attorney’s office, Boerner is charging $400 an hour for an amount not to exceed $12,000.

City Manager David Ramsay said all council members had either spoken to Boerner or made an appointment with him. He characterized the Council as functioning well on many other difficult issues. On issues related to the downtown area, however, Ramsay felt an experienced, neutral expert was needed to help address the Council’s anxieties.

“Clearly, some perspective is in order,” he said. “The Council needs to take a time out to explore those issues … There are going to be issues that divide the Council. Sometimes it’s messy and sometimes it’s very direct, but that’s just the nature of the process.”

The Hodgson Memo

Public records obtained by the Kirkland Reporter confirm that the documents disclosed included a confidential memo, believed to be a legal risk assessment of land-use appeals. The first appeal to be heard was the BofA project. Jenkinson, in a July 2 letter to CiViK attorney J. Richard Arambaru, called Hodgson’s actions “unilateral, unauthorized and not an effective waiver,” and requested the documents be returned. Arambaru and CiViK board member Bea Nahon, who had also reviewed the memos, complied.

In a July 7 e-mail, Lauinger appeared to question whether the memo was made part of an executive session meeting and thus protected. Ramsay disagreed and said this was one of the reasons an outside legal expert was needed. The memo, authored by Jenkinson, was circulated to the Council, Boerner, Ramsay and Planning Director Eric Shields.

Ramsay hoped the individual meetings with Boerner could lead to a “group process” where the Council could resolve their issues and questions. He declined to elaborate on what the resolutions might be.

Three walk out on Executive Session

Before July 15 meeting, three council members walked out on a closed-door session to discuss labor negotiations. Mary-Alyce Burleigh, Joan McBride and Bob Sternoff walked out of the Executive Session about five minutes into the meeting. The reason for the walkout is unknown. Councilwoman McBride declined to comment, citing legal reasons.

Executive session is typically intended for discussion and not action. It is unusual for council members to avoid taking part in an executive session.

City Clerk Kathi Anderson said the entire situation surrounding the July 1 meeting and memo disclosure is unprecedented in recent history at City Hall.