When are closed sessions legitimized under the Brown Act?

Answer

The Brown Act contains a few narrow exceptions to its requirement that all legislative deliberations occur in open session, including the “pending litigation exception”, which permits a legislative body to have a closed session “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.”  Gov’t Code § 54956.9(a).

As is potentially relevant, litigation is “pending” when 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…on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency; or
(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 [the prior definition].”  Gov’t Code § 54956.9(d)(1)-(3).
“[E]xisting facts and circumstances” consist only of:
“(1) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed;
(2) Facts and circumstances…that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which…shall be publicly stated on the agenda or announced;
(3) The receipt of a claim pursuant to the Government Claims Act….or some other written communication from a potential plaintiff threatening litigation…;
(4) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body; or(5) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body…”  Gov’t Code § 54956.9(e).
It is troubling that the school board would classify this particular agenda item under the pending litigation exemption merely because it is controversial. With regards to the information above, there has to be something concrete upon which to base a decision to hold the discussion behind closed doors–not merely some remote possibility of litigation.

If, for example, the union has stated that it will bring a lawsuit should the school take certain actions with respect to this issue, then it may be that this particular discussion can be held behind closed doors under this exemption.  However if it’s just a general fear of the union’s reaction to the school board’s decision, then it would seem this exemption has been invoked improperly.

I invite you to review Government Code Section 54956.9 to review the definition of pending litigation.

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.