Former mayor Marko Dapcevich sought correspondence between the city attorney, administrator, assembly members, staff members, and GPIP board members over the procurement of the GPIP dock last year. City attorney Brian Hanson ruled — and the assembly has now agreed — that the correspondence is protected by attorney-client privilege.
The Sitka Assembly Tuesday night (3-14-17) rejected an appeal from a former Sitka mayor whose request for public records had been denied, but left open the possibility of publicly releasing the documents sometime in the near future.
Former mayor Marko Dapcevich, who now lives out of state*, had filed a public records request for email correspondence between the assembly and municipal officials concerning the proposed dock at Gary Paxton Industrial Park.
But as municipal attorney Brian Hanson observed, the public records request had become entangled with Dapcevich’s allegations of impropriety in the procurement process.
“Throughout his materials there is a claim of personal interest on my behalf. Claims of non-disclosure on my behalf. Claims that the GPIP dock contract was illegal. Claims of my hiding materials, or (municipal administrator) Mr. Gorman using inappropriate discretion. There are claims of hiding. There are requests from Mr. Dapcevich to revise the procurement policies. There’s a request from Mr. Dapcevich to declare the GPIP dock contract void. There’s a request by Mr. Dapcevich to determine by what degree the employees violated, were illegal or unethical. There was a request to conduct an investigation into our alleged violative, unethical conduct. And what I would suggest to you is that all of these types of claims are not relevant to this discussion here today.”
Dapcevich filed his public records request on December 19 of last year. He asked for copies of any correspondence between officials in city hall and members of the assembly, or board members of the Gary Paxton Industrial Park, that involved the dock project over the course of the preceding two months.
He also asked for copies of signed contracts and letters of intent with Turnagain Marine Construction.
The municipal clerk’s office complied with the latter part of the request, and provided the contract documents, which are public records.
The emails, however, were not released to Dapcevich, on the grounds that they are protected under attorney-client privilege.
Dapcevich disagreed, and he had at least one ally on the assembly. This is an exchange between Mayor Hunter and member Aaron Bean, before the assembly formally convened to hear the appeal.
Hunter – I’m going to ask for assembly members who have had contact with Mr. Dapcevich to please disclose that, and to recuse yourselves if you have anything that will cloud your objectivity in this matter. Mr. Bean.
Bean – Yeah, I would like to speak to this. I wrote an email just prior to our meeting tonight — I don’t know if you guys have read it — for the record, I’ll go ahead and read it: Mayor and assembly members, By way of this email I waive my attorney-client privilege in relation to Mr. Dapcevich’s public records request. I’ve released email communication between myself and Mr. Hanson and Mr. Gorman, to Mr. Dapcevich. As an elected official, I believe honesty and transparency supersede perceived liabilities.
Bean assured members that he only waived attorney-client privilege for his emails, and not for others on the assembly.
Bean said that he shared Dapcevich’s questions over the procurement of the GPIP dock, and he was unsatisfied with what he had learned from the administration since a work session on the subject late last year.
The substance of Dapcevich’s complaint is that the city signed a contract for the dock with Turnagain Marine Construction prior to obtaining the necessary permits for tideland development from the Army Corps of Engineers. He also believes the city violated procurement procedures. In correspondence with Dapcevich on the issue, city officials indicated that securing the necessary permits would be the responsibility of the contractor.
After Bean recused himself from the hearing, the assembly heard Dapcevich’s appeal via telephone. The former mayor argued that attorney-client privilege could not protect emails which had never been seen by assembly members. In his rebuttal, attorney Brian Hanson argued that the administrator and other city staff functioned as agents of the assembly, and were therefore covered by the privilege rule.
The assembly then convened in executive session to read the correspondence in question.
On returning to open session, member Tristan Guevin spoke in favor of upholding the attorney’s opinion.
“In my mind, the municipal administrator and other employees who are referenced in these communications are representatives of this body, and I believe that our municipal attorney’s decision was correct, that it was privileged communication.”
Member Aaron Swanson agreed, but he also saw nothing sensitive in the documents, and like Bean, he waived his attorney-client privilege so that Dapcevich — or any member of the public — might obtain the correspondence.
Other members of the assembly agreed, in principle. Tristan Guevin thought the emails should go back to the attorney for another review before they were released. Mayor Hunter had some additional reservations.
“I saw nothing that I felt was explosive or otherwise, but if I were to say something in public I might word it differently than I do in private. These were intended as attorney-client privilege documents — the subject line on many of them is attorney-client privilege — and I will speak candidly with Mr. Hanson on things and sometimes play devil’s advocate, and try to push him on things to get a response so I better understand the position. And if staff members have done so I don’t want their views to be mischaracterized because of that.”
Member Kevin Knox shared that opinion — especially because the documents were emails. He thought that distributing them to the public meant “a loss of control.”
The assembly voted 4-0 to support the attorney’s ruling to deny the public records request on the grounds of attorney-client privilege. Members present were Mayor Hunter, Kevin Knox, Tristan Guevin, and Aaron Swanson.
The assembly took no action on whether or not to publicly release the documents Dapcevich requested anyway. The administrator said that he would put the issue on a future meeting agenda if requested.
Hearing the appeal took 1 hour 45 minutes of the assembly’s time. Dapcevich was one of the 48 applicants for the job of municipal administrator, but his application was culled in the first round. Among Dapcevich’s lengthy correspondence with city hall was a note acknowledging that his involvement in this issue might compromise his chances for being selected for the administrator position.
*Story update 3-31-17
This story has been updated to correct for Dapcevich’s residency. Dapcevich works full-time for Interstate Restoration, but still considers himself a Sitka resident. In an email: “So far this year I’ve worked in 11 cities and currently have projects running in 4 cities in two states. I spend most of my time on the road, but also have a second home in AZ that I work out of as well.”
