Emergency agenda items and proper notice requirements
Q: My first question is: What is the correct procedure for adding an “emergency” item to a city Council agenda?
Recently, a City Council added an “emergency” closed session to its agenda to discuss “anticipated litigation” without any motions or votes.
My second question is about anticipated litigation: Must it be described in some fashion when it’s added?
A: It is unclear from the information you submitted in your inquiry whether the city council held an emergency meeting without giving sufficient notice of the meeting, or whether the city council gave the 72 hour notice required for regular meetings and simply labeled the agenda item as an “emergency” item.
A legislative body may discuss a nonagenda item at a regular meeting if, by majority vote, the body determines that the matter in questions constitutes an emergency. The Brown Act provides for emergency meetings to be held by a legislative body with little or no notice to the public, depending upon the situation. When a majority of the legislative body determines that an emergency situation exists, it may call an emergency meeting. (Gov’t Code § 54956.5).
According to the California Attorney General’s Office, the Brown Act defines an emergency as a crippling activity, work stoppage or other activity which severely impairs public health, safety or both. (Gov’t Code § 5795605(a)(1)). Absent a dire emergency, at least one hour before the meeting, telephonic notice must be provided to all media entities that have requested that they receive notice of any special meetings called pursuant to section 54956. (Gov’t Code § 54956.5(b)). In the case of a dire emergency, notice need only be provided at or near the time that notice is provided to the members of the body. (Gov’t Code § 54956.5(b)).
A dire emergency is a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting may endanger the pubic health, safety, or both, as determined by a majority of the members of the legislative body. (Gov’t Code § 54956.5(a)(2)). At the conclusion of such meeting, the minutes of the meeting, a list of persons who the legislative body notified or attempted to notify, a copy of the roll call vote, and any actions taken at the meeting must be posted for a minimum of 10 days in a public place as soon after the meeting as possible. (Gov’t Code § 54956.5(e)). Furthermore, as a general rule, emergency meetings may not be held in closed session.
If your concern involves the proper notice requirements for a closed session held for purposes of discussing anticipated litigation, at least 72 hours prior to each regular meeting, legislative bodies must prepare an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session. (Gov’t Code §54954.2(a)). In addition to the agenda requirement, the Brown Act requires a representative of the legislative body to orally announce the items to be discussed in closed session prior to any closed-session meeting. (Gov’t Code § 54957.7(a)). This requirement may be satisfied by referring to the item by number as it appears on the agenda. Once a closed session has been completed, the legislative body must convene in open session. (Gov’t Code § 54957.7(b)). If the legislative body took final action in the closed session, the body may be required to report the action taken (either orally or in writing) and the breakdown of the vote.
Moreover, pursuant to the Brown Act, a legislative body of a local agency may use a closed session to consult with its attorney on the progress of court action or settlement negotiations in a pending case (Gov’t Code § 94596.9, subdivision (a)), on a specific threat of litigation (subdivision (b)), or on the advisability of taking legal action (subdivision (c)). If the body will use a closed session for one of these purposes, it must state on the agenda or publicly announce the subdivision which authorizes the closed session.
Furthermore, Section 94596.9 requires that if a section is closed pursuant to subdivision (a) (pending litigation), the body must state the title of the case or otherwise identify the litigation to be discussed, “unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.” When the session is closed pursuant to subdivision (b) (significant exposure to litigation), unless the facts and circumstances creating the threat are not yet known to the likely plaintiffs, it must be announced to the public. The California Attorney General states that supplementary oral or written announcements pursuant to subdivision (b) are required in four such situations:
(1) If there has been no communication from the likely plaintiffs, but the agency is aware of something that is likely to prompt a litigation threat, the facts must be publicly stated on the agenda or announced prior to the closed session.
(2) If a claim or some other written threat of litigation has been received, the document is a public record and reference to it must be publicly stated on the agenda or announced prior to the closed session.
(3) When the closed session is triggered by a litigation threat made by a speaker in an open and public meeting, reference to the statement must be publicly stated on the agenda or announced prior to the closed session.
(4) When an oral threat of litigation is made outside a meeting, it may not be made the basis of a closed session unless the official who became aware of it makes a memo explaining what was said. The memo is a public record and reference to it must be publicly stated on the agenda or announced prior to the closed session.