A Patterson Irrigator editorial says the Del Puerto Health Care District was bending open government laws when it met in closed session to discuss extending a purchase agreement for a new health center. -DB
Patterson Irrigator
Editorial
August 6, 2009
The Del Puerto Health Care District board of directors recessed to closed session some 30 minutes into its July 28 meeting.
The directors took a representative and a consultant from the Keystone Corp. with them. Those two men came out about 30 minutes later, while the board remained in closed session.
Nearly an hour later, the board emerged from closed session and voted unanimously to extend the district’s purchase agreement with Keystone for a new health center. There was no public discussion on the matter.
Health care districts, because of their unique status as a public body having to compete with private health companies for services and physicians, do have some flexibility when it comes to discussing matters in closed session.
We think the directors went too far with that flexibility in this case and violated the state’s open meeting law, the Brown Act, in doing so. They disagree.
As it was explained to us, and as evidenced by the decision voted on after the closed session, the board was to discuss what its next step would be with regards to the new health center.
The move to Keystone was thwarted by the Patterson City Council because zoning laws do not allow medical facilities there, so the district would have to either abandon the Keystone site and look elsewhere or try to get the zoning law amended. Directors decided to stick with Keystone but did not specify the next move.
The item in question, as listed on the agenda, read: “Report involving Trade Secrets (Health and Safety Code 32106). Discussion will concern: Proposed new health care facility.”
The Health and Safety Code section cited on the agenda reads, in part, as follows: “‘Health care facility trade secrets’ … means a ‘trade secret,’ as defined in subdivision (d) of Section 3426.1 of the Civil Code, and in addition meets all of the following.”
It then goes on to list two additional requirements for a “health care facility trade secret,” one of which states: “Is necessary to initiate a new district service or program or add a district health care facility.”
That particular requirement sounds like it might permit the board to hold this discussion in closed session. But while the discussion might meet that one requirement, the law says it must also meet the “trade secret” definition in the civil code.
That definition, in its entirety, reads: “Information, including a formula, pattern, compilation, program, device, method, technique or process, that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Jim Ewert, legal counsel for the California Newspaper Publishers Association, said the decision the board was pondering at the July 28 meeting would not meet that definition.
“The acts of attempting to amend zoning laws or choose a different parcel of property to acquire don’t come remotely close to falling within the definition set forth in the civil code,” Ewert wrote in an e-mail to the Irrigator. “Merely labeling proposed action or discussion of these items as a trade secret is not enough. Both of these items are required by law to be discussed in open session, because no other exemption allows discussion or action on these items in closed session.”
There is also a provision that allows discussion in closed session for real property negotiations, but in this case, the negotiations had already been done. A purchase agreement is already in place. The price and terms are settled. And if that was the true reason for the closed session, the district would at least be guilty of improperly notating its agenda.
The district and its attorney disagree that the trade secrets exemption cannot be used, essentially stating that there are confidential matters associated with this discussion that allow it to be discussed as a trade secret, but they add that they can’t disclose those reasons because they are confidential.
That might be the case, but from the information available to us and from reading the law itself, we would argue that the board was in violation of the Brown Act when it discussed these matters in closed session. We hope the directors will be more open about such things in the future.
Local taxpayers pay for the district, after all, and they should be allowed to weigh in on these types of decisions before they have been made.
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