County Counsel Michelle Blakemore’s compartmentalization of information has put both the county and her in hot water, the Sentinel has learned, and the San Bernardino County Board of Supervisors will carry out an evaluation of her performance on June 4.
While the language of the public notice relating to the June 4 closed door session of the board does not appear to cover the potential for Blakemore’s termination, such an outcome in the relatively near term is within the realm of possibility, given the legal and financial stakes at issue in several pending items of litigation involving the county, the Sentinel is informed.
Though the fashion in which the board has been insulated from the minutiae and facts involved in many of the lawsuits filed against the county is an historical practice not attributable to Blakemore’s running of the office, under Blakemore only a limited number of the members of her office are in the loop with regard to a host of cases that have been farmed out to outside law firms, such that channels of communication have been abridged or shut down entirely in at least a handful of cases, including ones wherein settlements in the range of tens of millions of dollars in taxpayer money are fully conceivable. In some of these cases, attorneys with those outside law firms have proceeded with their representation of the county without information that was in the possession of various departments of the county and the office of county counsel. In many of those cases, this withholding of information resulted in those outside law firms engaging in a protracted and expensive investigative and research process in preparation for trial that has added to the cost of employing those firms. Often the withholding of that information is done for strategic purposes in that a command decision was made within the office of county counsel to keep the information from the county’s retained attorneys because this allows the county to in turn withhold what is likely to be damaging evidence during the discovery process that would be used against the county in the course of the litigation.
Discovery, referred to in some jurisdictions as disclosure, is a process in legal procedure by which those parties involved in a case investigate the issues being litigated to collect evidence  which can be used in trial, and are obliged to share material with opposing counsel.
The county counsel’s office, both before and during Blakemore’s tenure there, has made a practice of clamping down on the distribution of information at virtually every level, such that any information deemed potentially sensitive is provided only to a limited circle of county employees whose access to the information is deemed critical to county operations.
Information flows both up and down the chain of command, and there appears to be a policy within the office of county counsel that very little information in its possession needs to flow up the chain of command to the board of supervisors.
Under the Brown Act, California’s open public meeting law, the governing boards for public agencies can and in almost all cases do avoid discussion of legal issues in public. The Brown Act allows potential litigation and pending litigation along with public employee hiring, evaluation, discipline and firing, negotiations for real estate sales and purchases, and labor negotiations to take place outside the scrutiny and earshot of the public. Blakemore is in attendance at virtually all of the closed sessions the board holds, at which she briefs the supervisors with regard to developments involving and progress on the multitude of lawsuits the county is involved with, including those in which the county is a plaintiff or co-plaintiff and those in which it is a defendant or co-defendant. In some cases, what Blakemore offers is merely informational in nature. In others, Blakemore seeks guidance or direction from the board in terms of how the county should proceed, including taking or rejecting settlement offers or making settlement overtures.
Given the sheer volume of litigation in which the county is involved, it is neither practical nor realistically possible for Blakemore to keep the board abreast of every development in every suit in which the county is involved. Some litigation, nevertheless, is far more significant than other lawsuits the county must deal with, and the board’s lack of conversance with the substance and intricacies of that litigation carries with it risk. None of the current members of the board have a legal background, and consequently, Blakemore has been given virtual autonomy in overseeing the litigation the county is involved in, making decisions with regard to proceeding in that litigation and how, and the degree to which the board is to be isolated from the litigation, an approach by which the board members are “benignly” kept in the dark. Unknown at the public level is the degree to which the board of supervisors is complicit in itself remaining outside the loop on the county’s litigation, which gives rise to a larger question of how cognizant the board’s members are of the office of county counsel restricting information all the way around, and in particular the practice of withholding information relating to cases being litigated from the outside law firms representing the county in those cases.
Moreover, from Blakemore’s standpoint, being the constant bearer of unwelcome or worrisome reports to her five bosses would likely create a degree of tension she believes all six of them would prefer to function without.
The strategy of limiting the distribution of potentially compromising information to a small group of isolated attorneys within the office of county counsel takes as its premise utter and complete security and confidentiality of the information in question. This assumption on Blakemore’s part appears to have played her wrong.
The Sentinel has learned that a county lawyer in a position in which s/he had access to a wide cross section of county material relating to ongoing litigation, perhaps concerned at the manner in which the county was eluding or bypassing the rules of discovery, in the words of a knowledgeable county official “unloaded” a virtual treasure trove of documents, reports, transcripts, emails and other communications to individuals in litigation with the county or lawyers representing those litigants.
That development has been nothing short of devastating for the county, severely damaging the relationship of trust the county and the office of county counsel had with members of the outside law firms representing the county, virtually destroying the credibility of the outside law firm and the county with several judges hearing cases in which the county is a litigant represented by those outside law firms, and resulting in rulings or findings that are likely to prevent the county from prevailing in several lawsuits.
A case in point is the law firm of  Burke, Williams & Sorensen, which represents the county in federal court. The firm’s lawyers had made several assertions both in court before Judge Jesus Bernal and in the filing of court papers which were credibly contradicted when county documents were marshaled that contained communications and information at a factual variance with positions the county had taken during ongoing litigation. Included in a batch of documents examined by Bernal, the Sentinel is informed,  were communications in which county officials openly discussed what appeared to be suborning perjury. In another, county officials make reference to withholding evidence from the defense in a criminal case. In one communication, a former high ranking county official discussed employing physical violence against a former federal judge.
Blakemore’s office had the materials in question in a file, which had not been turned over to Burke, Williams & Sorensen. Lawyers with Burke, Williams & Sorensen during the course of litigation made repeated representations based on the incomplete information at their disposal.  Blakemore did not pass the more complete record along to Burke, Williams & Sorensen because she had banked on the documentation never seeing the light of day.
Blindsided by the materials that now make it appear that they made willful misrepresentations to the court, the lawyers with Burke, Williams & Sorensen are now in the position of deciding whether to have their firm leave the county, a client which represents a substantial and reliable revenue stream, in the lurch or soldier on in a case in which the prospect for prevailing has been substantially compromised because of way in which they and the county have affronted the judge.
While the members of the board have some level of concern over Blakemore’s management of the office of county counsel as is evinced by the upcoming performance evaluation, it is by no means certain the board has the will to remove her. At this point it is unclear the degree with which Blakemore is continuing to hold out information from the board about the course of litigation the county is engaged in.
Another question at present is how fully Blakemore kept Gary McBride, the county’s chief executive officer, informed of the twists and turns in the litigation the county was involved in, and the degree to which he participated in keeping bad news from reaching the board in a way that delayed, but ultimately has not prevented, the board having to make a decision, and perhaps a more expensive decision than it would otherwise have needed to make, about settling some of the litigation the county faces before it goes to trial. At the same June 4 closed session, McBride’s performance is likewise subject to review.
-Mark Gutglueck