Minutes and closed sessions
Q: My question is: Must the minutes reflect a teleconference with the board’s attorney to otherwise justify a closed session under 54956.9 that does not state that the attorney was present at the meeting in the minutes? Also, if the minutes are simply in error and there actually was a teleconference with the attorney, would this per se invalidate the board action from that closed session, or would only proving the absence of any legal billing for that date/time invalidate the board action?
A: Government Code § 54957.2, which provides for discretionary keeping of a minute book for closed sessions, does not appear to require that the minutes reflect whether someone in attendance appeared via teleconference. That section does not seem to require more than that the minutes reflect the topics discussed and decisions taken: “a legislative body may” [note that it is not mandatory] “designate a clerk or other officer or employee of a local agency who … shall keep and enter in a minute book a record of the topics discussed and decisions made at the meeting.” Moreover, the minute book kept for closed sessions is not a public record subject to inspection pursuant to the California Public Records Act. Gov’t. Code § 54957.2.
With regard to your second question, I am not aware of any provision that would result in an action being invalidated because the attorney telephonically attended a closed session pursuant to the pending litigation exception under section 54956.9. Section 54956.9 states that a legislative body 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.” Nothing in that section suggests that the attorney must be there in person. Moreover, section 54953(b) specifically permits legislative bodies to hold teleconference meetings when they are conducted according to the procedures set forth in that section.