Is it a Brown Act violation to move item from closed to open session?

Answer

If the City Council moved an item from a closed session agenda, adding it to the agenda of an open meeting during that meeting, and then proceeded to act on that agenda item, the council may have violated the Brown Act’s notice requirement.  The Council’s actions certainly violate the spirit if not the letter of law as providing notice to the public of which items will be discussed at a meeting enables interested parties to attend and participate.

If an item is added to the agenda without notice, an interested party may be deprived of an opportunity to participate if they chose not to attend the meeting because a particular item did not appear on the published agenda.  Adding an item to the agenda of a public meeting without notice has the same effect as discussing the item in closed session –the public is not allowed a meaningful opportunity to participate in the deliberative process.

The Brown Act, at Government Code section 54956.9, provides that a local agency may go into closed session in order to “confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” “Litigation” includes “any adjudicatory proceeding . . . before a court, administrative body exercising its adjudicatory authority, hearing officer or arbitrator.”  Govt. Code section 54956.9(c).  Litigation is considered “pending” when “any of the following circumstances exist:

(1) Litigation, to which the local agency is a party, has been initiated formally. (2) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. (3) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (2). (4) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

Govt. Code section 54956.9(d).

A “claim for monetary damages” may be considered pending litigation allowing for a closed session if a “significant” threat of litigation exists.  Should the City Council and the individual requesting monetary damages fail to reach an agreement, a lawsuit is likely.  The Council may therefore be able to meet in closed session to discuss the matter with their lawyers.  However, when a body meets in closed session, they must “publicly report any action taken in closed session and the vote or abstention on that action of every member present.”  Govt. Code § 54957.1(a).

Pursuant to the Brown Act, “[a]t least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing 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.”  Govt. Code § 54954.2(a)(1). Additionally, “No action or discussion shall be undertaken on any item not appearing on the posted agenda.”  Govt. Code § 54954.2(a)(2).  A special meeting may be called under section 54956 requiring only 24 hours notice and in emergency situations a meeting may be called with no advanced notice pursuant to section 54956.7.

If you believe that an action has been taken in violation of the Brown Act you may sue to seek a declaration that the practices violates the Brown Act.  Additionally the Brown Act gives courts the power to set aside the actions of a legislative body as null and void if taken in violation of section 54954.2 of the Brown Act.  Govt. Code § 54960.1.  However, before an action seeking nullification is filed, the “interested person” must send the body a letter demanding that it “cure and correct” the violation.  Such demand letters must be sent to the board either within 30 days of the violation if based on section 54954.2.

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.