Lawsuits Among School Trustees
Q: I cover the School District, which has just been sued by one of its trustees on allegations of civil rights violations and harassment. The board of trustees held a closed session on the litigation on Tuesday night and I received an anonymous tip that this trustees was asked to leave the closed session so that the other trustees could discuss strategy to defend the district against this lawsuit. He refused and now it is my understanding that the district superintendent is seeking legal advice on how to keep this trustee out of these closed sessions. My question: how much information, if any, can I get about what occurred at this Tuesday closed session? For example, can I ask if the one person was involved in this closed session, if he was asked to leave and what happened when he refused to leave and expect an answer? Am I entitled to an answer or is everything cloaked by the closed session?
A: The Brown Act provides that the legislative body must disclose certain information about what has transpired in a closed session and that certain information acquired in closed sessionmust not be disclosed, absent authorization from the legislative body.
As for mandatory disclosure, with respect to pending litigation, the body must disclose a decision to initiate or intervene in a lawsuit has been made; any decision to defend an appeal, seek appellate review, or refrain from seeking appellate review of a decision to which it is a party; a decision to participate as an amicus curiae in a third-party case; and a decision to approve the settlement of pending litigation. Govt. Code Section 54957.1.
As for prohibited disclosure, the Brown Act provides that “a person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” Govt. Code Section 54963. “Confidential information” is defined as “a communication made in a closed session that is specifically related to the basis for the legislative body” to meet in closed session. Id. The statute expressly provides that it is not a violation of this prohibition to disclose information that is not confidential or to “express[] an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action.” Id.
It seems likely that while some of the information you seek might arguably constitute “a communication made in a closed session that is specifically related to the basis for the legislative body” to meet in closed session (i.e., the pending litigation) and therefore not permitted to be disclosed without authorization from the board, some of the information would not be confidential and could be disclosed. It does not appear, however, that any board member would be under any obligation to disclose the information you seek, so it might be within the member’s discretion