Notices of City’s Closed Session Real Estate Negotiations Provide Only Generic Information

Answer

The Brown Act sets forth what should be listed on the agenda ahead of a closed session to discuss a real estate transaction at Cal. Gov. Code § 54954.5 (available here):

For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format.

(b) With respect to every item of business to be discussed in closed session pursuant to Section 54956.8:

CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property:

(Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation)

Agency negotiator: (Specify names of negotiators attending the closed session) (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator so long as the name of the agent or designee is announced at an open session held prior to the closed session.)

Negotiating parties: (Specify name of party (not agent))

Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment, or both)

With respect to your first question, the phrase “conference with real property negotiators” appears to comply with the above requirements, as that exact phrase is deemed to be a sufficient description in the statute. Note that public agencies are forbidden from discussing anything other than price and payment terms during a closed session to discuss a real estate purchase.Shapiro v. San Diego City Council, 96 Cal. App. 4th 904, 910 (2002). As such, any discussion of the “why” of the purchase during a closed session would violate the Brown Act.

With respect to your second question, the above requirements state that a street address should be given if it is available, otherwise a parcel number will suffice. Using an APN number instead of a street address does not appear to comport with the exact requirements above, but it seems unlikely that a reviewing court would fail to find “substantial compliance” if use of an APN number still makes it reasonably clear what parcel the agency is discussing.

With respect to your third question, it is difficult to say what consequences would flow from an incorrect listing of an APN number on the agenda. Note again that § 54954.5 provides that no violation shall be found where the closed session items were described in “substantial compliance” with the information requirements listed in that section. If the incorrect listing were an innocent mistake, and the other information in the listing makes it reasonably clear which parcel the agency was discussing, it seems unlikely a reviewing court would find a lack of compliance that necessitates a do-over of the entire transaction. However, if the mistake was not innocent, or was such a material error as to make the agenda description misleading, a court might be more inclined to rule in favor of voiding the transaction.

More information about the Brown Act, including your options for enforcement, can be found at the First Amendment Coalition’s website here.

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.