District Attorney Lisa Green has asked the Kern County Board of Supervisors to compel County Counsel Mark Nations to turn over a memo he drafted to Supervisor Leticia Perez that she has claimed cleared her of a conflict of interest to vote on a cannabis issue before the board.
In a letter obtained by The Californian, Green said she initially asked for the memo June 1, but Nations declined to produce it, citing his attorney-client privilege to Perez and the Board of Supervisors.
If the board does not take up the issue, the letter states, Green will have no alternative but to seek a court order to acquire the memo.
In an interview Wednesday, Nations said the DA's office had gone so far as to send investigators to his office to request the letter, and they also tried to subpoena it.
“I have consistently told them that it’s privileged and I can’t and I won’t,” Nations said, although he noted he would produce the memo following a vote from the board to waive its attorney client privilege with him in this case.
“This is a big deal for me as an attorney,” he said. “What the law says is that an attorney cannot divulge the confidences of his or her client period, and they must protect those confidences at their own peril. That is the word of the law.”
Green said she was bound by the gag order and could not comment.
The memo in question has been cited by Perez on numerous occasions in defense of her vote on a marijuana matter before the Board of Supervisors for which she now faces two misdemeanor charges, brought by Green's office.
One charge claimed Perez “used her official position to influence a governmental decision in which she knew she had a financial interest,” on Oct. 24, during a supervisors vote in which Perez was the lone vote against banning commercial cannabis.
Perez’s husband, Fernando Jara, owned a consulting firm at the time that did work for several marijuana clients.
The second charge claimed Perez knowingly failed to “file a statement disclosing her investments, interest in real property and income” during a period of 2016.
In the letter to supervisors, Green wrote that Perez has repeatedly stated publicly that Nations provided her with a legal opinion memo that cleared her of any conflict of interest related to the cannabis vote. Green goes on to say that Perez's public mention of the memo waives attorney-client privilege in the matter, citing case law from a 1992 U.S. Court of Appeals for the Ninth Circuit ruling.
Green said early in the letter she initially wanted Nations to turn over the memo for evidence relating to the case. Later she states the memo "could prove pertinent to my office's consideration during plea negotiations."
“It is our understanding, however, that Mr. Nations may not have had all the material facts to consider prior to drafting the memorandum,” Green wrote in the letter. “Presumably this can be confirmed through the memorandum itself.”
Nations said the Board would likely consider the issue during closed session of the next board meeting on Oct. 9.
If that occurs, the supervisors will meet to consider waiving the attorney-client privilege between the board and Nations, which would allow the county counsel to release the memo.
Nations said that if the supervisors voted in favor of him releasing the memo, he would do so, but it could open the supervisors up to more questions from the DA’s office.
“The question is if you waive it for that, do you waive it for other stuff too?” he said. “If they waive it as to the memo, do I then have to answer questions of (the DA’s) investigators about what the memo says? Do I have to disclose to them communications I’ve had with the supervisors or with other supervisors?”
Potentially all supervisors could vote on the issue of waiving the privilege, Nations said, including Perez.
“There is no legal reason why she cannot participate and decide,” he said. “The privilege is not just hers, it’s everybody’s.”