A&A: When can a public Board claim attorney-client privilege?

Q: Our municipal board, of which I am a member, recently convened a closed session meeting that was not listed as an item on the published agenda.

The purpose of the meeting, which included  a city attorney, was for several board members wanted to present their case against me as a Brown Act violator.  I believe the lawyer was invited to establish a claim of attorney-client privilege to hide their actions from public scrutiny.

Can they get away with this?  To what extent can the lawyer’s advice, tactical suggestions and service as the middleman, be hidden from public view under a claim of atty client privilege?

A: The Brown Act requires that the items to be discussed in a closed session be disclosed twice: once in the meeting agenda, Govt. Code section 54954.2 (indicating that the agenda must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session”), and a second time immediately before the closed session is convened. As stated in Government Code section 54957.7:

(a) Prior to holding any closed session, the legislative body of the local agency shall disclose, in an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda. In the closed session, the legislative body may consider only those matters covered in its statement. . . . (c) The announcements required to be made in open session pursuant to this section may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location for the purpose of hearing the announcements.

Section 54954.2(b) further provides that “No action or discussion shall be undertaken on any item not appearing on the posted agenda . . . .”

Actions taken in violation of section 54954.2 are among the types of action subject to judicial nullification. Govt. Code section 54960.1.

You have also asked about the extent to which an agency’s communications with its lawyer can be shielded from the public pursuant to the attorney-client privilege. the Brown Act permits a closed session for the receipt of advice from an agency attorney, only “regarding pending anticipated or pending litigation” and then only when “discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” Govt. Code section 54956.9.

With respect to whether a written document containing such advice would be a public record subject to inspection, the Public Records Act permits withholding of any record that is subject to the attorney-client privilege. Govt. Code sections 6254(k) (incorporating the provisions of the Evidence Code), 6254.25, 6276.04.

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.

One Comment

  • Excellent advice, but one thing that they did not mention was that if you are a city councilmember or member of a city committee like planning commission, etc, you are not truly considered an employee, hence, cornering you in closed session would be improper. The fact that they had an attorney there, who serves at the pleasure of the city manager/city council, does not make it any more legal. My personal observation has been that city attornies and district counsel’s support whatever decision/direction the person writing the checks wants.

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