Burlington City Attorney Eileen Blackwood argues, according to Seven Days, that her office's legal analysis is protected by attorney-client privilege, in a construct where both the attorney and the "client" work for the City of Burlington. Protected by privilege, she has asserted, the legal analysis "must thus be treated as confidential."
Since the law went onto effect in March, Progressive Party members of the city council began to have misgivings about its constitutionality. They requested -- and received -- permission from the City Attorney to show the secret legal analysis to an outside counsel, John Franco, who served as a Burlington Assistant City Attorney from 1982 to 1989, when the Mayor was Bernie Sanders, now Vermont's junior U.S. Senator.
Attorney Franco produced a five-page, single-spaced analysis dated June 4, in which he concluded that "this ordinance is neither lawful nor constitutional." He has reinforced this conclusion with a three-page supplemental analysis
Based on Franco's analysis of the ordinance, the five Progressive Party members introduced a resolution at the June 10 council meeting seeking to make the secret city attorney's office memo public.
Democrats fought the motion fiercely. Democrat Norm Blais, an attorney, made it personal, speculating irrelevantly that the resolution derived from "politicians' remorse." Blais went on to argue that "this is not a question of transparency," [there are] sound reasons for having privileged communications with an attorney."
While attorney-client privilege is widely recognized in law, Blais made no effort to explain how it applied to this governmental situation, where Democratic Mayer Miro Weinberger had made a campaign promise of greater governmental transparency.
Council member Chip Mason, also a Democrat and a lawyer, chaired the committee that held three non-controversial public hearing on the ordinance. At the council meeting he defended the "sanctity" of attorney-client privilege, calling it "not something we should be waiving."