Attorneys present at closed meetings
Q: I have a question about closed sessions. We want to update our Board of Directors on current litigation against our hospital. However, we don’t necessarily need to have our attorney present to do so. Is this valid closed-session subject matter? And if so, do we need to list the litigation that will be discussed?
A: Government Code 54956.9 allows legislative bodies (which includes hospital districts) to hold closed sessions to discuss pending litigation when discussion in open session would prejudice the public agency. The purpose of the pending litigation exemption is to protect confidential attorney-client communications and allow a legislative body to meet with its attorney to receive legal advice and make legal decisions; if the attorney is not present (at least by conference call), the closed session may not be conducted.
With respect to your concern about the agenda listing, the Brown Act does require that the litigation to be discussed pursuant to section 54956.9 be listed in some form. It suffices for agencies to identify the name of the case (by reference to claimant’s name, names of parties, case or claim number) unless to do so would “jeopardize the agency’s ability to effectuate service of process” or “jeopardize its ability to conclude the existing settlement negotiations to its advantage.” Gov’t Code § 54954.5. If it is the latter situation, the item description may state as much — i.e., that disclosure of the case name would jeopardize service of process or existing settlement negotiations.