A&A: Does Brown Act allow School District, City to negotiate millions in fees in closed session?

Q: Our Unified School District has negotiated over $30 million in developer fees since 2005 during closed session that should otherwise be discussed in open session.

In reviewing the Brown Act, it appears only property negotiations–such as terms and price for the purchase and sale–are subject to closed session. My question is can the school district keep negotiation of developer fees with a third party home/commercial developer secret behind closed session when such fees are derived on the construction of homes and commercial property that are not owned by the district or subject to purchase or sale by the district?

Also, can the district Board meet in closed session with City staff under closed session to negotiate developer fees? It appears the City influences the school district on how much fees to impose on developers even though the district is responsible for levying developer fees independently under the law.

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A: Certain exceptions to the Brown Act allow a legislative body to hold “closed sessions.” For example, a public body may hold a closed session “with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease.” Gov’t Code § 54956.8. Presumably, this is the exception that the school district is using, as it does not appear that any other exception is applicable.

However, the closed session may be held only for the limited purpose of instructing the legislative body’s negotiator(s) on the price, payment terms, or both. No other factors affecting the transaction are allowed to be discussed in closed session.

In addition, both the California courts and the California Constitution require that the provisions of the Brown Act be “narrowly construed.” This means that the closed-session provisions should not be extended beyond the narrowest scope consistent with their terms. Thus, it may be improper for the school district to hold closed sessions on developers fees to the extent that they do not relate to the purchase, sale, exchange, or lease of real property.

Before entering the closed session, the body must first identify in open session its negotiator(s), the parcel(s) subject to the negotiations, and the person(s) with whom it may be negotiating. Failure to disclose this information is a violation of the Brown Act. Additionally, after the closed session, the body must report—in open session—the substance of any agreement approved in the closed session.

If you believe that the Board took action in violation of the Brown Act, you will want to write to the Board demanding that it nullify its vote (and place the item on a future agenda so members of the public can meaningfully participate in the decision-making process).  Gov’t Code § 54960.1(a).

If the Board refuses to cure and correct its action, you could bring a lawsuit to nullify the vote, and if successful, you may be entitled to attorneys’ fees.  The details of this enforcement procedure are set out in § 54960.1(a) of the Government Code.  Another mode of enforcement provided for in the Government Code is to seek a judicial determination that a particular act by the agency violated the Brown Act, but not seeking nullification of any particular vote taken by the body.   Gov’t Code § 54960.

If successful, this would result in a court order stating that the action at issue violated the Brown Act (and that the  Board should not do it again).  A third option would be to report the violations to your local district attorney, who also has standing to judicially enforce the Brown Act.  Unfortunately, whether the D.A. decides to enforce the Act is in the sole discretion of the D.A., but alerting the D.A. could possibly spur an investigation into the board that would subsequently result in the Board abiding by the Brown Act’s rules.

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.