Auditor-Controller & County Counsel Claiming ‘Privilege’ in Public Records Request
On April 28, 2024, I submitted the following Public Records Request to Auditor-Controller, Gina Will.
County Public Records Request
In an email, dated Fri, Dec 9, 2022, to (name redacted), Marcia Salter stated: “Before the (June 22, 2022) GJ report came out, I had already taken action to engage an external audit firm to perform a Forensic Audit in regards to 4 of the County’s existing contracts.”
Please supply any emails, letters, records, or documents between Marcia Salter and Kit Elliot, “prior to June 22, 2022,” which pertain to the engagement of CliftonLarsonAllen LLP (CLA) to contract for a review of Fire Safe Council records.
Please supply any emails, letters, records, or documents from Marcia Salter to anyone at CliftonLarsonAllen, "prior to June 22, 2022,” which pertain to the engagement of CLA for the purpose of reviewing Fire Safe Council records and bookkeeping procedures.”
Auditor-Controller Gina Will’s Response
Any emails between Marcia Salter and County Counsel concerning the retention of CLA are subject to attorney client privilege and not disclosable. See Govt. Code § 7927.705; Evid. Code § 954.
Moreover, because the retention of CLA was done in conjunction with and as directed by counsel, the contents of those emails are also subject to attorney client privilege and work product privilege and not disclosable. See id; see also Govt. Code 26908.5(b)(3) (stating that “papers, correspondence, or memoranda pertaining to any audit that has been completed, which papers, correspondence, or memoranda are not used in support of any report resulting from the audit” are confidential and may not be released to the public).
While the Public Records Act does not require a privilege log to be produced when privileged documents are withheld, in the interests of full transparency, the earliest withheld record of any communication between Marcia Salter and CLA in connection with Fire Safe Council was sent on June 24, 2022.
Well, What about this Email from Marcia Salter?
“Before the GJ report came out, I had already taken action to engage an external audit firm to perform a Forensic Audit in regards to 4 of the County’s existing contracts.”
First of all, the Forensic Audit Gina is referring to was not an audit at all, it was an agreed-upon procedure. (AUP)
Second, California Evidence Code sec. 954 - states that confidential communication is between a client and a lawyer. There was no attorney-client relationship here.
Nevada County Auditor-Controller’s Office is CliftonLarsonAllen’s ‘client’ and has been for a number of years. The Auditor-Controller and County Council were conducting ‘public business’ in the potential procurement of the contract with CLA before the release of the June 22, 2022, Grand Jury report, Fire Safe Council, Growing Pains and Best Practices.
Given the contractual relationship between the Auditor-Controller, County Counsel, and CLA in which $66,000 in invoices were billed to the County, ‘all’ written communications between Nevada County staff and CLA are subject to disclosure.
For the contract with CLA to be ready for signature, immediately following the Grand Jury report, there must have been communications during the Grand Jury process of which Alison Lehman, Marcia Salter, Gina Will, and Kit Elliott were aware.
I fail to see how these preliminary negotiations/discussions entail privilege.
Furthermore, why would they not inform the Grand Jury they were planning to hire CLA to review bookkeeping procedures?
I would think the Board of Supervisors would be most interested in how the CliftonLarsonAllen contract was procured and payments made which exceeded the $50,000 threshold for Board approval. This also happened with the Lew Edwards Group contract during the Measure V debacle. Invoiced campaign expenses wound up in the Supplies and Services category of OES making it impossible for the Auditor-Controller to track.
It may be a policy of ‘certain staff’ to contract with a company below the $50,000 threshold to avoid the approval process. Why would the Auditor-Controller and County Counsel want to conceal the facts of this contract and important review of Fire Safe from the Board of Supervisors, the Grand Jury, and the public?
This circumventing Board of Supervisor approval leads to a lack of awareness of contracts and the scope of the contract. It’s also a pretty nifty way to elude public knowledge of government spending. It is also a way to elude the Grand Jury’s awareness of an important review of the bookkeeping procedures of the Fire Safe Council.
Recommendation
Make it a policy that all contracts, no matter how small, are submitted to the Board of Supervisors. Furthermore, post all contracts on the County website in a location where the public has easy access. Lastly, when any contract exceeds the agreed-upon price, the Supervisors are notified immediately so it doesn’t get out of hand. Contract management is essential.
Finally, isn’t it the job of the ‘elected’ Auditor-Controller to account for and protect public funds?
Transparency in government is necessary for public trust. The excuse of privilege to withhold information does not pass the smell test.
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