Council votes to waive attorney-client privilege so planning commission can discuss owner-occupancy legal advice on accessory-dwelling ordinance

Falls Church City Attorney Sally presented the council with legal advice about a proposed owner-occupancy requirement in the city’s accessory dwelling unit (ADU) ordinance and recommended the council consider waiving attorney-client privilege so the Planning Commission and council can fully discuss the legal analysis in public.

Sally told the council she had provided a legal analysis and case-law review to the Planning Commission and council but that the communications had been marked privileged. She said the privilege belongs to the city council and that, if the council chose to waive it, the Planning Commission could publicly discuss the legal advice and the city attorney could answer questions at the Planning Commission meeting. Sally said the risk of harm to the city from waiving the privilege was "low," but she warned that disclosure could give challengers more information to litigate against an owner-occupancy requirement and could — in some circumstances — be interpreted narrowly by a court as a waiver applicable to related legal advice.

Councilmembers debated the tradeoffs between transparency and preserving the privilege. Supporters said waiving the privilege would allow a more open public discussion, aid the Planning Commission’s deliberations and help the public understand how the council reached its policy decision. One councilmember said they had initially favored an owner-occupancy requirement but changed their view after the city attorney's advice and wanted to be able to explain that change to the public.

Opponents cautioned against creating a precedent for routinely publishing privileged legal analysis. One councilmember said the staff report to the Planning Commission had come close to disclosing privileged analysis already and expressed concern about inviting legal ‘‘fly‑specking’’ into the public record.

After discussion, a councilmember moved "that city council make available to the public the privileged communications delivered by the city attorney to the planning commission and to the city council concerning the legalities, risks and alternatives associated with including an owner occupancy provision within the city's proposed accessory dwelling unit ordinance." The motion was seconded (Miss Downs). The council adopted the motion on a roll call vote: Miss Connolly — Yes; Miss Downs — Yes; Miss Flynn — No; Miss Hiscott — Yes; Mister Schneider — Abstain; Miss Underhill — Yes; Mayor Hardy — Yes. The motion passed with one no vote and one abstention.

Sally said she would advise the Planning Commission that it is permitted to discuss the material publicly and that she would attend the Planning Commission meeting to answer questions.