Lawyers say such withdrawals are rare. Russo’s withdrawal came after District Attorney Nancy O’Malley sent a “friendly, but subtly menacing” letter [PDF
] to Oakland Mayor Jean Quan in December that said “it remains an open question” whether public officers who aid in violating state or federal laws through a city ordinance are exempt from criminal liability,.
That was followed by a February 1 letter [PDF
] from U.S. Attorney Melinda Haag which made it clear that the U.S. Department of Justice does not approve of large-scale industrial cannabis farming operations like the one Oakland is contemplating.
The mayor’s office had a prickly response to Russo’s withdrawal.
“As an elected city attorney, it is not always clear when Mr. Russo is acting as the city’s attorney or as an elected official,” Mayor Quan said through an email from her spokeswoman, Susan Piper. “He may or may not have his personal opinion about the medical cannabis ordinance, but he has publicized and politicized that opinion at the same time he is playing the role of giving advice. It is contradictory — is he their attorney or not?”
Russo’s spokesman, Alex Katz, claimed the City Attorney never gave a public opinion about the cultivation of marijuana in Oakland.
“As the attorney of the city, he gave the city council a confidential legal opinion about this,” Katz said. “The council can release that opinion to the public if they choose to do so.”
Oakland attorney Daniel Siegel also bristled at the public nature with which Russo made clear he’s not going to represent the city on medical marijuana, calling it “unprofessional.”
“I think Mr. Russo has put everybody in kind of a spot,” Siegel said. “By publicly announcing his opinion, he clearly puts the council in the position where if they choose to reject his opinion, his opinion will be used against them.”
Siegel, who is friends with Mayor Quan in addition to giving her legal advice, said he’s continued to advise the mayor on any subject upon which she seeks his advice, including the medical cannabis ordinance.
Steven Mattas and Ruthann Ziegler, the Meyers Nave partners now handling the project, are set to address the city council on the medical cannabis cultivation issue at an upcoming meeting. Ziegler said a contract is in the works.
One city council member seemed annoyed with Russo, but said his withdrawal may actually get the moribund plan moving again.
“Perhaps outside counsel at this juncture is the best thing, so that we can resolve this issue once and for all,” said council member Desley Brooks, who drafted the latest version of the pot-growing ordinance.
“It would have been helpful if our attorney had advised us on what we need to do to bring our ordinance into compliance.”