A&A: The city decided in closed session to let Wal Mart pick up legal tab for lawsuit

Q: Tonight the City Attorney reported out on the council’s closed-session meeting. She told the public that the meeting had discussed pending litigation over a Wal Mart development-agreement lawsuit; that the council had voted 5-0 to defend the city against the suit; and that they had also agreed in this same closed session to allow Wal Mart to cover the city’s full legal costs for the suit.

Although I understand the city’s need and right to both discuss the litigation and tally the vote in secret, I do NOT understand why they didn’t properly agendize for open session the clear side-issue of allowing Wal-Mart to actually pay for the city’s defense.

I believe this secret payment agreement should have been discussed and voted upon in open session so that the public could have had some input as to its propriety, ethics, possible conflict-of-interest problems, bad precedent, etc. I do not see why it had to be kept secret from the public, except perhaps to protect Wal Mart from the potential bad publicity or further criticism and controversy over their project, etc.

I think this should have been an open session item, and can’t find any good reason why the city had to do it in secret so that no one could say anything ahead of time. Shouldn’t this one thing have been discussed and decided in open session?

A: Under the Brown Act, the city council is under a duty to agendize each item of business to be transacted or discussed at the meeting, “including items to be discussed in closed session.”

The Brown Act contains guidance for wording of closed session items in section 54954.5. From your email, it sounds like the city failed to do this, but rather took action on an unagendized item (whether to permit Wal-Mart to cover the city’s litigation costs) and then reported its action out of closed session (also required by the Brown Act). If there is a violation by the city related to this action, it would seem to be with respect to not properly placing the item on the agenda.

As for whether the city council can even discuss the topic of coverage of litigation costs in closed session, there is nothing in the Brown Act that would definitively answer this question. See, generally, Gov’t Code 54956.9. From a practical standpoint, it would seem that discussion of how to pay for litigation might be a natural part of a general discussion regarding pending litigation, since how to fund litigation might have played a role in the council’s decision on whether or not it should involve itself in the litigation in the first place, and such questions would naturally involve the city’s legal counsel. Likewise, there may have been an indemnification clause in the written agreement that the city had with Wal-Mart.

If you conclude that the Brown Act was violated, the first step would be to send a letter to the city council demanding that it cure or correct the action taken in violation of the Brown Act.

“The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days — but sometimes within 30 days — of the action. Gov’t Code 54960.1.

It is not necessary that this demand come from an attorney’ any individual may make such a demand. If the agency does not cure or correct within the prescribe time limitations, the next step would be to seek a judicial determination that the board’s actions are null and void. Gov’t Code 54960.1(a).

A citizen who prevails in an action to enforce the Brown Act may be entitled to recover attorneys’ fees. The details of this enforcement procedure are set out in Section 54960.1(a) of the Government Code. Again, it is not necessary that an attorney file any court action, although if you reach this stage with the agency, you may want to seek assistance in order to ensure that the proper procedure is followed.

Another option is bringing an action to seek a judicial determination that a particular act by the council violated the Brown Act. Gov’t Code 54960. Under that course of action, nothing is nullified — a successful litigant simply ends up with a court order stating that the action at issue violated the brown Act (and that the legislative body should not do it again). You can find additional information about enforcing the Brown Act on the Access to Meetings page.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.