A&A: Did City Violate Brown Act With This Switch of issue Decided During Closed Session?

Q: I’m wondering whether my city violated the Brown Act (or other law) when the City Council decided in closed session to issue a statement criticizing the city’s mayor and defending an earlier vote.

The background is that the mayor had attempted to veto an amended contract for the city manager, which the city attorney says is not allowed under the city’s charter. The mayor has said he is considering going to court to establish that he does have that right, and so the closed session was aggendized as “anticipated litigation.” But is deciding on a public statement regarding related questions within the realm of permissible discussions?

A: It does seem that the legislative body here may have overstepped boundaries in using a closed session where it was purportedly discussing pending litigation, as permitted under Government Code 54956.9, to formulate a statement with respect to its earlier vote.

The purpose of this exception to the Brown Act is to permit the legislative body to discuss litigation without prejudicing the body’s position in open session.  Given the legislative body here was formulating a statement for public consumption, it seems that discussions about this statement should have happened in open session.

The remedy for any improper action taken by the legislative body in closed session would be to demand that it cure and correct that action.  Under the Brown Act, such a demand must be sent to the legislative body in writing within 90 days of the action.  Gov’t Code 54960.1(c)(1).  If the legislative body doesn’t take corrective action within 30 days, then the demanding party may sue.  Gov’t Code 54960.1(c)(2)-(3).

Of course, as a reporter, you can also use your platform to bring these violations to the attention of the public, which may be even more effective than bringing a lawsuit.

Bryan Cave Leighton Paisner 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.  No attorney-client relationship has been formed by way of this response.