Closed sessions to hire and decide pay for outside counsel
Q: Can city council hold a closed session to decide to hire outside counsel? Can they decide in closed session on how much to pay outside counsel?
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.”
It is conceivable that a city council might, based on advice of its legal counsel, reasonably conclude that discussing in open session the decision to hire outside counsel in connection with pending litigation would prejudice the position of the local agency in that litigation, depending on the particular facts involved (e.g., perhaps an issue unknown to the opposing party in the litigation necessitates engaging outside counsel with a particular expertise). However, most discussions of whether to hire outside counsel would probably not justify holding a closed session. It is even more difficult to imagine how a discussion of how much to pay outside counsel would prejudice the position of the local agency in the litigation, such that holding the discussion in closed session would be proper.