Q: My question: The Police Commission has the unfortunate practice of allowing the Chief of Police to sit on the dais with them when they meet. What I’m wondering is, is it legal for him to remain empaneled with them when they go into “closed session” (i.e. secret meeting where members of the public are told to leave the room)?
A: The Brown Act serves to facilitate public participation in all phases of local government decision-making, and to curb misuse of the democratic process by secret legislation of public bodies. Bell v. Vista Unified School Dist., 82 Cal. App. 4th 672 (2000). The Brown Act is invoked if a “legislative body” is involved, and if a majority of the members of that particular body met and conferred about the public’s business.
Assuming the Police Commission is a legislative body, a meeting of the majority of its members is subject to Brown Act requirements. “Where matters are not subject to a closed meeting exception, the Act has been interpreted to mean that all of the deliberative processes by legislative bodies, including discussion, debate and the acquisition of information, be open and available for public scrutiny.” The Brown Act: Open Meetings for Local Legislative Bodies, Office of the Attorney General (2003), at p. 1.
From what I gather, you are concerned about presence of a specific individual—the Police Chief—at the Commission’s closed meetings. The Attorney General has stated meetings cannot be “semi-closed.”
“As a general rule, closed sessions may involve only the membership of the body in question plus any additional support staff which may be required (e.g., attorney required to provide legal advice; supervisor or witnesses may be required in connection with disciplinary proceeding; labor negotiator required for consultation). Persons without an official role in the meeting should not be present.” The Brown Act: Open Meetings For Local Legislative Bodies, Office of the Attorney General (2003) p. 31.
“The general rule is that closed-session access is permitted only to people who have ‘an official or essential role to play’ in the closed meeting.” 86 Ops. Cal. Atty. Gen. 210, 215 (2003); See 83 Ops. Cal. Atty. Gen. 221, 225 (2000)(mayor not entitled to attend closed session of city agency).
However, just from the name of this particular legislative body, and the fact that the police chief sits with the commission at public meetings, it sounds like the police Commission works closely — and often rely on the expertise — of the police chief. This is not uncommon. For example, the city manager and other city staff routinely advise city councils (and may go into closed session when necessary with the legislative body).
It therefore might not be a violation for the chief to attend closed session meetings with the Commission. You can find additional information about enforcing the Brown Act on the FAC’s website at http://ift.tt/1WLptd5
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.