Larry Agran, Irvine City Council
The deposition of former Irvine Council member Larry Agran has been released and it’ll take you awhile to go through it (it’s about 300 pages); the link is here.
Anthony Taylor of Aleshire & Wynder, is believed to be using this investigation as a try out to become the city’s new law firm, spends a considerable amount of time asking about minute details of agreements between contractors and subcontractors – even on issues not related to the Great Park, previous audits of the Park’s finances, and issues about billings and payments. Taylor introduces letters of evidence, but often not the evidence itself but expects Agran to acknowledge the veracity of the evidence.
But the nutshell is Taylor is doing his best to try and make the case that Agran got free political consulting in exchange for granting contracts associated with the Great Park. What Taylor really wants is not related to the Great Park Audit at all, but an investigation into Agran’s campaign operations to seemingly try to connect anyone who supported Agran’s runs for office with some sort of political Great Park contract payback.
Agran’s lawyer, Fred Woocher wants Taylor to spell out what exactly it is that Agran is alleged to have done that requires Mr. Agran to answer questions about all of his private political associations — compelling him to name any and all of those individuals who volunteered, gave money, provided services in support of Agran’s political campaigns. Many of these are likely City employees, Republican business leaders, long-time Democratic Party members, as well as people who do business with the City. These people would be targeted for retaliation by Mr. Agran’s political opponents on the City Council and in Orange County.
I have to wonder if Jeff Lalloway or Stephen Choi would like their political operatives exposed in a similar manner. One can only wonder what opening Jon Fleischman’s books would reveal.
Agran and Woocher began developing this response to the deposition line of questioning over the weekend and the LiberalOC has obtained a copy of a letter from Woocher to Taylor dated March 17 at 6:30 PM:
Anthony:
I have carefully considered your prior meet-and-confer emails, and I have discussed this issue with my client. The following is our response:
The dispute involves Mr. Agran’s assertion of his privilege under the First Amendment right of free association under Britt v. Superior Court not to respond to several questions that you asked him at his deposition last week seeking the identities of any contractors, subcontractors, or other individuals working on the Great Park Project who may have “volunteered” on his political campaigns (the “Requested Information”). You contend that “[y]our legal objections on privacy grounds are baseless.” You point to a couple of provisions in the Schematic Design Agreement and assert that “[a]ny claim of a protected privacy right to not disclose the Requested Information was waived per the Schematic Design Agreement.” More generally, you contend that “[a]ny claim of privacy rights to not disclose the Requested Information is also not supported by applicable law on political association privacy rights including, without limitation, Britt v. Superior Court (1978) 20 Cal.3d 844. There, the California Supreme Court explained that ‘as with all other First Amendment rights, the right of associational privacy is not absolute . . .’ (Id. at p. 855).”
Taking your points in order, I have reviewed the Schematic Design Agreement, including in particular the sections you cited in your email. I find nothing there that could remotely be considered to constitute a waiver of Mr. Agran’s First Amendment right of political association. As an initial matter, the Schematic Design Agreement is a contract between the City of Irvine and the Great Park Design Studio (i.e., Gafcon and Ken Smith Landscape Architect); Mr. Agran was not a party to that agreement, either in his capacity as an individual councilmember or as a private citizen. Not surprisingly, then, the sections you cite from that document do not contain any waiver by Mr. Agran of his constitutional rights. For example, Sections 1.2.3.7 states that “[t]he Architect (including the Architect’s Representatives and the Key Subsconsultants) shall not engage in any activity, or accept any employment, interest or contribution, which could create an appearance of impropriety of business affairs or that would reasonably appear to compromise the Architect’s professional judgment with respect to the Project.” Even if this provision could somehow be read to inhibit a contractor’s exercise of its right to engage in private political activity — a very dubious proposition in light of the case law holding that such “peaceful and lawful associational activity is, without question, constitutionally protected activity which, under both our state and federal Constitutions, enjoys special safeguard from governmental interference” (Britt, 20 Cal.3d at p. 852) — the section in no way waives Mr. Agran’s constitutional right of associational anonymity. (See id., p. 858.) Likewise, section 1.3.6.19 imposes a duty on the Architect to make its books and records available to the City in the event any audit is required of its performance of the services rendered under the Agreement; again, it imposes no duty upon Mr. Agran to provide access to his books and records, much less to forfeit his constitutional right of privacy or free association. And the only other provision of the Schematic Design Agreement that you cite, section 1.3.6.17, merely states that no city official (presumably including Mr. Agran) “shall have any financial interest, direct or indirect, in this Agreement, or participate in any decision relating to this Agreement which affects his or her financial interest or the financial interest of any corporation, partnership, or association in which he or she is interested, in violation of any federal, state, or [City] statute, ordinance, or regulation.” The Requested Information is not addressed to any of these concerns.
Accordingly, your assertion that, under each of these contract provisions, Mr. Agran supposedly waived his First Amendment rights and “agreed to provide the Requested Information to the City of Irvine during an audit” is completely devoid of merit. Moreover, the two cases you cite in support of your position do not in any way support your claim. For example, in TBG Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, the court held that a plaintiff who had filed a wrongful termination lawsuit after he was fired for misusing his company computer had voluntarily waived whatever right of privacy he might otherwise have had in the information he stored on the home computer provided to him by the company, because he had no reasonable expectation of privacy in that information based upon his explicit written consent to the defendant company’s policy statement specifying that the home computer was “the property of the Company,” that “communications transmitted by Company systems [were] not considered private,” and that he consented to the company’s designation of “authorized personnel to enter such systems and monitor messages and files on an ‘as needed’ basis.” (Id., at pp. 452-454.) Here, by contrast, Mr. Agran did not voluntarily waive his First Amendment right of associational anonymity by initiating any legal action against the City, nor could any reasonable person construe the Schematic Design Agreement as constituting such a waiver. The federal district court’s decision in In re Yahoo Mail Litigation (N.D. Ca. 2014) 7 F.Supp.3d 1016, 1037-1042, is similarly inapposite. In fact, that case (like TBG Insurance Services Corp.) does not even involve the First Amendment right of association, but the very distinct and separate “right of privacy” under article I, section 1, of the California Constitution. And the court merely held that the plaintiffs in that case had not met the “high bar” for establishing that their right to privacy had been invaded by Yahoo’s scanning and storing of the content of emails between Yahoo Mail users and non-users. The Yahoo case has zero bearing on the present dispute.
It is quite true, as you note in your initial email, that Britt acknowledges that “as with all other First Amendment rights, the right of associational privacy is not absolute . . .” (20 Cal.3d at p. 855.) But you should not have stopped reading the case at that point, for the Supreme Court immediately goes on to admonish:
“Because of the constitutional interests at stake, however, the authorities establish that private association affiliations and activities such as those at issue here ‘are presumptively immune from inquisition . . . .’, and thus the government bears the burden of demonstrating the justification for compelling disclosure. Moreover, the cases also make clear that in this context the government’s burden is a particularly heavy one: ‘(T)o justify any impairment, there must be present (a) ”compelling state interest . . . (which) justifies the substantial infringement of . . . First Amendment rights. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area ‘(o)nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’”’ Finally, the decisions established that not only must disclosure serve a ‘compelling’ state purpose, but that such ‘purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ ‘Even where a compelling state purpose is present, restrictions on the cherished freedom of association . . . must be drawn with narrow specificity. . . . Precision of (compelled disclosure) is required so that the exercise of our most precious freedoms will not be unduly curtailed except to the extent necessitated by the legitimate governmental objective.’” (Id., at pp. 855-856 [citations omitted].)
Indeed, the Supreme Court in Britt explained that “one of the principal purposes of the constitutional protection of associational privacy is to free an individual to follow the dictates of his conscience by ensuring that he need not ‘avoid any ties (simply because they) might displease those who control his (personal or) professional destiny . . . .’” (Id., at pp. 854-855.) That is precisely the interest that Mr. Agran seeks to protect by refusing to answer your questions regarding the identity of his political supporters. The City Council subcommittee and Council majority — avowed political adversaries of Mr. Agran who “control the personal or professional destiny” of City employees, contractors, and subcontractors — would love nothing more than to find out the identity of all those who have volunteered on and supported Mr. Agran’s campaigns in the past, so that they can exact retribution on them. The First Amendment’s protection for the right of free political association, however, prohibits Mr. Agran from being compelled to identify those individuals — to “name those names”– lest those individuals be deterred from participating in such constitutionally protected activities. (Id., at p. 855.)
Finally, your emails contend that you need the Requested Information because “[w]e have received information during the course of the Audit that Mr. Agran allegedly received free political consulting services in exchange for Mr. Agran supporting the award of contracts with inflated prices to consultants for work on the Great Park project.” I repeatedly asked you to identify these allegations with more specificity or to provide me with the source of such “information,” so that we may evaluate whether the allegations might indeed provide any basis for your demand for the Requested Information, or so that we may at least attempt to craft a compromise resolution of this dispute that might provide you with the information you claim to need while not unduly infringing upon Mr. Agran’s First Amendment rights. After initially refusing to give me any additional information, you finally pointed me to the deposition of former CEO Michael Ellzey and to his statement on the City’s website, insisting that they contained the allegations that I had been asking about.
I spent several hours today reading Mr. Ellzey’s deposition and statement in great detail. Mr. Agran has done the same. Nowhere in any of that voluminous material does Mr. Ellzey (or anyone else) allege that “Mr. Agran . . . received free political consulting services in exchange for Mr. Agran supporting the award of contracts with inflated prices to consultants for work on the Great Park project.” If I am incorrect, please let me know exactly where in Mr. Ellzey’s deposition or statement that allegation is made. In fact, please consider this email to constitute a formal written request under the California Public Records Act for copies of any and all documents or records that support your statement that “[w]e have received information during the course of the Audit that Mr. Agran allegedly received free political consulting services in exchange for Mr. Agran supporting the award of contracts with inflated prices to consultants for work on the Great Park project.”
In sum, Mr. Agran’s assertion of a First Amendment right of association privilege not to divulge the names of individuals who have volunteered on his political campaigns is fully supported by Britt and other well-established legal precedents. Mr. Agran has not done anything to waive that privilege, and the City has not satisfied its “heavy burden” to present a “compelling state interest” to justify the substantial infringement of Mr. Agran’s First Amendment rights.
Nevertheless, we do not wish to prolong this wasteful audit any further or to prevent the City from gathering any information that is truly necessary for the completion of that task. Since it is your position that you need the Requested Information because “[w]e have received information during the course of the Audit that Mr. Agran allegedly received free political consulting services in exchange for Mr. Agran supporting the award of contracts with inflated prices to consultants for work on the Great Park project,” Mr. Agran is agreeable — without waiving his First Amendment privilege not to disclose the identity of anyone who “volunteered” on his political campaigns — to provide you with a response under oath to this supposed allegation. Although you never asked him about this allegation during the course of his deposition, but instead asked him whether any Great Park consultants or contractors had volunteered on his campaigns, Mr. Agran will swear unequivocally that he absolutely did not receive free political consulting services in exchange for his supporting the award of contracts with inflated prices to consultants for work on the Great Park project. Please let me know if you would like Mr. Agran to submit a written declaration under penalty of perjury attesting to the truth of the foregoing statement so that you can include it in the public record of the audit proceedings.
Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
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When you get through the entire deposition, Taylor asked a considerable amount of questions seeking a reaction. “Did you know” questions answered by Agran with a “no” then morph into “are you surprised by this?” Its clear that Taylor’s method is more to satisify Shea and Lalloway’s need to know more about Agran’s campaign operations than to find evidence of wrongdoing.
Taylor didn’t ask Great Park CEO Mike Ellzey the questions in the same manger and, frankly, he had considerably more management responsibility of the Park’s operations than Agran did.
The line of questioning pretty much confirms this is a political witchhunt. And taxpayers are paying for it.