Council conveniently hiding behind 408 rule

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We’d like to think that our elected officials are moving swiftly, resolutely, boldly, and efficiently to resolve the U.S. Olympic Committee deal.

Who knows? Maybe they are – but they’re not about to answer any questions about it.

For the umpteenth time, City Council adjourned into a closed session at the conclusion of the formal council meeting on Tuesday. The closed session had not been publicly announced, except by the minimal legal requirement of posting a notice in the City Clerk’s office, three blocks from City Hall in the city administration building.

So inconspicuous was the notice that the city clerk herself, Kathryn Young, was unaware that it had been posted when asked at 1 p.m. on Tuesday, just before the formal meeting began.

The move into a closed session drew but a single dissent.

Councilman Tom Gallagher, who has consistently opposed closed meetings of all kinds, voted against the move. After nearly two hours, the session came to an end.

Most council members, as is their wont after closed meetings, scurried away into the warm spring evening like so many frightened field mice, in a mostly successful attempt to avoid the media.

Gallagher made himself available, but wouldn’t – or couldn’t – say much.

“You know I’ve always opposed these closed meetings,” he said. “But they tell us there’s this 408 rule, and we could get hauled up before a federal judge, so we can’t talk. I guess that it’s kind of a gag rule.”

The “408 rule” refers to Section 408 of the Federal Rules of Evidence, which reads:

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish – or accepting or offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.”

The rule’s purpose is to encourage, rather than hinder, negotiated settlements. The city attorney has, it appears, seized upon FRE 408 as a convenient way to herd cats, to keep often-feckless elected officials from making statements that might conceivably damage the city’s case.

This strikes us as far-fetched.

The effect of this gag rule has been to silence council, to prevent its members from discussing any aspect of the USOC deal, from its genesis to its collapse. Council has acquiesced to these directions, so much so that they have been deliberately kept in the dark about important developments.

On May 11, for example, Vice Mayor Larry Small got his first look at the April 30 letter from the USOC announcing its withdrawal from the deal – on TV! He was understandably furious – but despite his fury, nothing has changed.

Since the deal’s inception nearly two years ago, the same three individuals have led the city’s team – Mayor Lionel Rivera, City Attorney Pat Kelly and Assistant City Manager Mike Anderson.

In the private sector, any team that had achieved equivalent results would be at best, re-assigned – and at worst, fired.

Council might not want to talk – but actions, speak louder than words. It is within council’s power to replace the Gang of Three, and bring on a fresh team.

That would tell us that council is no longer asleep at the wheel.

Otherwise, we’ll have to call them the “mushroom council” – kept in the dark and fed manure.