Public notice and disclosure of existing litigation
Q: Our school district has a closed agenda item with the following sentence. Is this allowed?A) EXISTING LITIGATION(Subdivision (a) of Section 54956.9)Pursuant to Government Code Section 54956.9(a) the Board will confer with legal counsel concerning existing litigation; disclosure of the case name might jeopardize current settlement negotiations.How can the public comment on a case without knowing the case?
A: Under Government Code section 54956.9, an agency must identify the name of the case on the agenda “unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process … or that to do so would jeopardize its ability to conclude the existing settlement negotiations to its advantage.” In a recent case, Trancas Property Owners Association v. City of Malibu, the Court of Appeal reiterated that the provision allowing government bodies to discuss settlement in secret should be narrowly construed. Conceivably, the notice given by the school district does not meet a narrow construction of the statute.
The notice says only that disclosure of the case name “might jeopardize current settlement negotiations,” and the statute requires that the name must be disclosed — so the public can comment — unless disclosure “would jeopardize” the negotiations. The school district could amend its notice to say that, but the real question would be whether the school district has a good faith reason to believe that disclosure of the case name really would jeopardize negotiations. Finally, if the school district settles the case, section 54957.1 requires that it disclose the fact of settlement and the substance of the terms.