Friday, August 25, 2017
Chief Bankruptcy Judge Urges:
Bar the Press From LACBA Board of Trustees Meetings
Federal Jurist, as a Trustee, Says the Need to Talk Frankly Requires Exclusion of Reporters
By a MetNews Staff Writer
A member of the Los Angeles County Bar Association Board of Trustees on Wednesday night, at the board’s monthly meeting, called for barring the attendance, in the future, of members of the news media—a proposal that met with an immediate rebuff by the elected officers, who ran on a reform ticket that promised increased openness in the organization.
Proposing the ban on press coverage was trustee Sheri Bluebond, chief judge of the Bankruptcy Court for the Central District of California.
She made her views known shortly after she entered the board room at the LACBA offices, late. Bluebond explained that she had a prior meeting she couldn’t leave and “as between pissing you off and pissing off Chief Judge Virginia Phillips [of the District Court for the Central District of California], I’d rather piss you off.”
At the outset of a discussion of the board’s 27-year-old policy on the attendance of reporters at meetings, Bluebond declared:
“We need to be able to talk frankly. We cannot do that with the presence of the press.
“I would not permit the press.”
Although two members of the board expressed concerns over the meetings being audio-recorded by journalists (one making her views known only via an email to the president and president-elect), no one embraced Bluebond’s call for a total ban on attendance by newspersons.
LACBA President Michael E. Meyer, who chairs the Los Angeles office of DLA Piper LLP, declared:
“Anything we say here isn’t confidential.”
President-Elect Brian Kabateck, of Kabateck Brown Kellner, said the organization needs to create awareness of what it’s doing, commenting:
“The only way we’re going to get the word out is through the press.”
“We should be open and we should let people know what we are saying.”
Under the March 26, 1990 policy, “[m]eetings of the Board of Trustees shall be open to the press” except that a reporter must have a Los Angeles Police Department press pass, reporters must sit at a separate table, the president is to announce if “a press representative is present,” and coverage of executive sessions is excluded.
Kabateck suggested that the last two provisos be retained.
Senior Vice President Tamila Jensen sided with open meetings, except for executive sessions, confined to discussion of matters appropriate for non-public discussion.
Los Angeles Deputy City Attorney Philip Lam, the association’s vice president, said of the policy of permitting coverage, that it “has served us very well.”
Trustee William L. Winslow, of counsel to Gifford, Dearing & Abernathy, was elected last year on a reform ticket, sponsored by the Council of Sections, set up in late 2015 to oppose what were portrayed as fiscally irresponsible policies and secrecy in the administration of then-President Paul Kiesel. Winslow opposed Bluebond’s suggestion, saying:
“A lot of us are committed to making this organization more transparent.”
Bluebond had aligned herself with the reform movement early last year, gaining support from the Council of Sections for election to a trustee position in what became the first contested LACBA election in 25 years. After the time for declaring for offices ended, however, she withdrew, citing a judicial canon which she said proscribes candidacy if there is an opponent.
She thereby ceded the seat to Diana K. Rogers, the choice of the Nominating Committee, who ran unopposed. The 2016 Nominating Committee slate had been dictated by then-President-Elect Margaret Stevens, an ally of Kiesel.
The reform movement won all three of the officer positions that were up for election—president-elect, senior vice president, and vice president. Of the nine trustee seats that were open, it embraced two of the committee’s choices; two of its candidates (including Bluebond) did not wind up on the ballot; and it won all five seats that were contested.
Appointed by Stevens
Switching her allegiance to Stevens, who became president July 1, 2016, Bluebond was appointed by Stevens, with board approval, as an assistant vice president for 2016-17. At the last board meeting this year over which Stevens presided, in June, she nominated Bluebond to a seat on the board that had been vacant since October.
In light of two-year terms for trustees, Stevens had support not only of board members elected in 2015, but also her own appointees to slots. A motion to put the appointment over a month, until Meyer took office, failed on a vote of 9-7.
Meyer then asked that Bluebond be confirmed unanimously, and she was.
As 2016-17 president-elect, Meyer automatically became president July 1, as did other officers elected this year, despite an effort by Stevens to invalidate the election by declining to certify the results and through other actions. She acquiesced in light of pronouncements by a judge in a court proceeding challenging her conduct.
Stevens, now holding the office of “immediate past president,” which gives her a seat on the Board of Trustees, left the July meeting early while intended reforms of policies and practices to which she had adhered were being discussed, and did not participate in a telephonic continuation of the meeting later in the month. She did not attend Wednesday’s meeting.
The two trustees expressing a concern over being recorded electronically were Rodgers and a candidate who ran this year without Council of Sections backing, Tanya Forsheit. Her selection by the 2017 Nominating Committee was a concession to Stevens.
Rogers, of Nemecek & Cole, said in her email to Meyer and Kabateck:
“[C]ould you please advise the Board that I request that the Press policy state that if a LACBA member objects to being recorded by the Press, then the Press shall not record any statements made by that LACBA member, by any means (electronic, audio recording, video recording, or other means.) An objection should be a continuing one that carries over to all meetings so that a LACBA member does not need to continually, at every meeting, state that s/he objects. (That would take time away from each meeting and we definitely want to be efficient.)”
It was not known whether “other means” included taking notes with pen or pencil. In response to an inquiry, Rogers said in an email yesterday:
“I did not intend to suggest that comments cannot be written down.”
“[M]y suggestions seek to strike a balance between the goal of information being open and transparent, on the one hand, and the goal of fostering open/unfettered discussion, on the other hand. Most times, these goals are not at odds, but sometimes they are.”
Forsheit—who practices with Frankfurt Kurnit Klein & Selz PC and bills herself as “one of the country’s top privacy and data security lawyers”—advised that it would be unlawful to electronically record what anyone at the meeting said without that person’s consent.
Vick Cites Statute
She was contradicted by Kevin L. Vick, of Jassy Vick Corolan, who noted he is a media attorney. He pointed out that under Penal Code §632, for a recording of a communication without consent to be unlawful, “it’s got to be a confidential communication.”
(The statute provides, under ¶(c): “For the purposes of this section, ‘confidential communication’ means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”)
“I think we have a right to know if somebody is tape recording this.”
She demanded to know if a MetNews reporter who was present was recording the meeting, but was not provided with the information.
Forsheit maintained that the meeting was “not a public forum,” but Meyer advised:
“These meetings are open to anybody.”
He added that if a reporter does use a recorder, “I feel better” because it ensures accuracy of the quotations.
Winslow said that where trustees stand on issues should be made known and any trustee who did not want to be quoted should resign.
Meyer said he and Kabateck would draft a proposed updated policy within the next two weeks, and invited Bluebond or anyone else to do the same, announcing that the matter would be taken up at the next meeting on Oct. 25.
Lam indicated that he would prepare a memo on the lawfulness of recording meetings without express consent of the participants.
Also at the meeting, the board unanimously approved Meyer’s appointment of Gibson, Dunn & Crutcher labor and employment attorney Jesse A. Cripps as an assistant vice president. He is a member of the executive committee of Counsel for Justice, LACBA’s charitable arm.
It also took a stance, with one abstention, against splitting the Ninth Circuit Court of Appeals. Under a current bill in the U.S. Senate, California, Oregon and Hawaii would remain in the circuit and six other states— Alaska, Arizona, Idaho, Montana, Nevada, and Washington—would form an Eleventh Circuit.
President Donald Trump is an advocate of the split, based on disappointing decisions from the circuit. Others favor the move on the basis of the perceived unwieldiness of a circuit of such enormous size.
However, trustee Bradley Pauley, in a report to the board, said the circuit is functioning well and there is no need to tamper with its structure. Pauley is immediate past chair of the Appellate Courts Section.
Search for CEO
Meyer said it would cost about $80,000 to hire a consulting firm to find a new chief executive officer for the organization, and he would hope it could be done internally. He appointed a search committee comprised of himself, Kabateck, Jensen, Lam and Bluebond.
The bar president said input would be sought from all LACBA members. (There is a notice on the website inviting suggestions.)
Meyer said the organization will look for “someone who will do exactly what we tell him to do—and smile.”
He went on to make clear that he was referring to compliance after a decision had been reached. He said the person “must be totally independent and not be afraid to challenge.”
Trustee Marc Sallus, of Oldman, Cooley, Sallus, Birnberg & Coleman LLP, said the person must be someone who “runs behind us, not in front of us.”
This had apparent reference to Rick Cohen, brought in as interim CEO by Steven. He was viewed as arrogating to himself decisions not within his province.
Cohen resigned July 21, one day shy of two months since embarking on what was intended as a one-year stint. Meyer observed that Cohen had done some good, but remarked that the resignation “was the best decision for him and for us.”
Recent CEOs have been attorneys, but that is not a requirement for holding the post.
“If I had my druthers,” Meyer told the trustees, “it would not be an attorney.
He said most lawyers do not run their law offices as well as their clients run their businesses.
Copyright 2017, Metropolitan News Company