Closed Sessions, Settlements, and Lack of Discussion/Public Comment
Q: Our City Council met in closed session to discuss ongoing litigation against the city by outdoor advertising companies challenging the city’s program of surveying and inspecting billboards and other off-site advertising signs. In open session following that meeting, the council adopted without discussion a settlement agreement that made changes in city codes regarding inspection fees, the number and types of billboards allowed, and the legalization of illegal billboards. The terms of the agreement were made public, but members of the public had no opportunity to comment on the terms, nor would they have known from reading the agenda item that such terms were under consideration. While the council could legally discuss the litigation in closed session, doesn’t the adoption of far-reaching changes to city sign codes without the possibility of public input constitute a Brown Act violation?
A: Section 54956.9 of the California Government Code provides that the legislative body of a local agency, “based on advice of its legal counsel,” may hold “a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” Closed session pursuant to this section is for communication between attorney and client; the body may not discuss litigation privately under this heading unless the attorney is present, at least by conference call.
With respect to your concern about the proper description for the item on the agenda, the Brown Act states that for items to be discussed pursuant to section 54956.9, 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.
As to public participation on this specific item on the agenda, it is not clear from the information in your submission whether the public was permitted to address the council at all during the meeting, on this and/or other items on the agenda. The Brown Act provides that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body . . ..” Govt. Code Section 54954.3. To the extent the council provided a general public comment period, there is likely no violation of the Brown Act in this respect because the members of the public had the opportunity to address the council about “any” item on the agenda during such public comment period.
The heart of your question, however, seems to be whether the settlement agreement went beyond the resolution of a particular dispute and actually constituted significant policy changes that should have been the subject of discussion in open session, notwithstanding the provisions of the Brown Act that allow for discussion of pending litigation in closed session, Govt. Code Section 54956.9. A recent California case offers some support for this position. In Trancas Property Owners Association v. City of Malibu, 138 Cal. App. 4th 172 (2006), the court held that the adoption in closed session of a settlement agreement that called for certain zoning actions violated the Brown Act because deciding to take those actions would normally be subject to the Brown Act’s open meeting requirements. The court said that whatever else Section 54956.9 permits, “the exemption cannot be construed to empower a city council to agree to take, as part of a non-publicly ratified litigation settlement, action that by substantive law may not be taken without a public hearing and an opportunity for the public to be heard.” Id. at 186.
Please note, though, that this decision does not mean that agencies cannot adopt settlement agreements in closed sessions — in fact, the court expressly said that bodies may discuss in closed session “any settlement proposals or terms they deem worthy of consideration” and “generally may agree to such terms and settlements in closed sessions.” Id. at 187. The decision means only that an agency may not “decide upon or adopt in closed session a settlement that accomplishes or provides for action for which a public hearing is required by law, without such a hearing.” Id. Whether the matters involved in the settlement agreement you mention below are required by law to be the subject of open session is beyond the scope of what we can address through this service. However, a copy of Trancas is attached, for your reference.