Tuesday morning the San Bernardino County Board of Supervisors will considering waiving its attorney-client privilege protecting communications related to the litigation and 2006 settlement of the lawsuit between the County Flood Control District and Colonies Partners, LP.

The $102 million settlement was to compensate for damages created by flood control actions resulting from the construction of the 210 freeway in Upland.

The County has brought litigation against San Bernardino Associated Governments, California Department of Transportation, and the City of Upland, in an effort to recover most or all of the settlement.

The litigation, which is ongoing, is being adjudicated in San Diego County Superior Court.

Now to the matter at hand.

County Supervisors should waive privilege, if at all possible, in order to allow the California Attorney General access to the attorneys and documents in an effort to finish the ongoing investigation of the settlement.

However, privilege must only be waived if by doing so would not unjustly interfere with the effort to recover funds on behalf of county taxpayers.

If waiving privilege would subject county attorneys to civil depositions and make normally privileged legal documents subject to subpoena, then the action may be too costly.

If requiring the Attorney General to seek legal redress in the courts to achieve their goal maintains attorney-client privilege in the civil case, then the decision supervisors must take is obvious.

Supervisors Gonzales and Derry performed a disservice to their colleague Supervisor Mitzelfelt by publicly airing their position on the matter prior to concluding closed session deliberations. Since Supervisors Ovitt and Biane have recused themselves from participating in the decision, Mitzelfelt becomes the deciding vote at this juncture.

In the end county supervisors should choose the path most constructive from a legal, not political standpoint.