A&A: Reporting closed sessions decisions

Q: The city council has had an item on its closed session agenda for several weeks regarding a condo’s violation of a development agreement. The city manager said publicly that the council had reached a decision that “involves litigation,” but he did not discuss the details. No decision was announced after that city council meeting. I assumed that would mean an announcement would come at the next city council meeting following closed session. Again, this did not happen. What are the rulings of reporting closed session decisions?

A: California’s Open Meeting Law, known as the Brown Act, provides that a public body may hold a closed session under certain circumstances, including to confer with, or receive advice from, its legal counsel regarding anticipated or pending litigation when discussion in open session concerning those matters would prejudice the local agency’s position in the litigation.

Cal. Gov’t Code section 54956.9. This includes when “[a] point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.” Cal. Gov’t Code section 54956.9(b)(1). In all closed sessions for pending litigation, an attorney representing the body must be present. (See The Brown Act: Open Meetings for Local Legislative Bodies, Office of the Attorney General (2003), p. 40, http://www.ag.ca.gov/open_meetings/. ) Additionally, the exception applies only to meetings where the government agency is a party to the litigation. Shapiro v. Board of Directors, 134 Cal. App. 4th 170, 179-80 (2005).

Assuming that the closed sessions concerning the development agreement meet these requirements, the next question is, what information must the council report regarding those closed sessions?

Under the Act, when approval is given to initiate a lawsuit, the governmental body need not identify the action, the defendants or other particulars about the case. However, it must specify that the direction to initiate or intervene has been given, and once the lawsuit is formally commenced, the action, defendants, and other particulars must be disclosed to any person upon inquiry, unless doing so would jeopardize service of process or existing settlement negotiations. Gov’t Code section 54957.1(a)(2). Since the city council has reached a decision that “involves litigation,” you should be informed exactly what the city council decided (to file suit, to intervene, etc.), unless the city can articulate some exception to this requirement. Of course, if the city has already filed suit, then it should be willing to provide you with more information regarding the particulars of the lawsuit, unless, again, a good reason to withhold that information is present.

Please note that California courts and the state Constitution require that the provisions of the Brown Act must be “narrowly construed,” meaning that the closed-session provisions of the Act should not be extended beyond the narrowest scope consistent with their terms. Cal. Const., Art. I, section 3(b)(2); Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 185 (2006).

In addition, the Brown Act says that closed sessions may only be held under the limited provisions expressly allowing for closed sessions. The fact that the session may address topics that are sensitive, embarrassing or controversial does not justify conducting a closed session unless it is authorized by some specific exception.

If you are not successful in getting more information from the city regarding its closed sessions, you may consider legal action seeking to declare null and void any action that was taken in violation of the Brown Act. Gov’t Code section 54960.1(a). A citizen who prevails in an action to enforce the Brown Act may be entitled to recover attorneys’ fees.

Please note, however, that there are strict deadlines for enforcing the Brown Act, including sending a cure-and-correct letter within a certain amount of time. You can find more information about the Brown Act, including enforcing the Act, at the FAC web site (https://firstamendmentcoalition.org/category/resources/access-to-meetings/)