|City Attorney Opines on Brown Act Violation
September 9, 2009
At last night’s City Council meeting, the City Council voted unanimously to allow the public release of a heretofore confidential memo to the City Council regarding a Brown Act violation by a Councilmember. The request was initiated by the violator, Councilmember Viramontes. The memo follows:
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Questions have arisen in connection with the conduct of the closed session on Friday, July 24, during which the CBE v. City of Richmond litigation was discussed. Much of the closed session discussion focused on responding to the order from the Court of Appeal requesting the views of the City about whether it would be appropriate for the Court of Appeal to review Judge Zuniga’s order by way of writ of mandate, rather than by appeal.
After discussing the matter, the City Council voted to direct that counsel write a letter to the Court of Appeal (1) asking the Court to give the parties a 30-day timeout to attempt a settlement and (2) informing the Court that if a settlement is not reached or if the Court does not agree to such an extension, then in the City’s view, it would be appropriate to proceed by way of a writ of mandate rather than an appeal.
The Council also voted to publicly report this decision. Pursuant to this direction, I publicly reported this decision during the public part of the meeting immediately following the closed session. Accordingly, all members of the public were able to learn of the decision made by the Council during the closed session, although not the discussion that led to that decision.
As permitted by the Brown Act, Councilmember Viramontes participated in the closed session by way of telephone. During the course of the closed session, it became apparent that a second person was in the vehicle in which Councilmember Viramontes was traveling. Councilmember Viramontes has indicated that she did not use a speakerphone or other “hands-free” device, and therefore the only portion of the closed session that could have been overheard were the statements made by Councilmember Viramontes.
Two questions have been asked in connection with this matter. In responding to these questions, I reviewed the Brown Act and the Attorney General’s Brown Act Guide, and researched case law and Attorney General opinions.
Question 1. What is the legality of a Councilmember discussing closed session matters by phone in a car wherein at least one other person was present?
The Brown Act generally requires that all decisions of a legislative body be made in a public meeting, after proper notice to the public, and that members of the public be allowed to comment on the item before the body makes its decision. The Brown Act, however, does authorize legislative bodies to convene in a closed session under specified, limited circumstances. One provision of the Brown Act authorizes closed session to permit a legislative body is to confer with its attorneys for the purpose of discussing pending litigation. The July 24 closed session was conducted pursuant to that statutory authorization.
Once a legislative body chooses to meet in closed session as authorized by the Brown Act, the issue arises as to who may attend (or listen to or observe) the closed session. While no provision of the Brown Act specifically addresses this issue, the Attorney General has concluded that attendance must be limited. This excerpt from the Attorney General’s Brown Act Guide summarizes that office’s views on this subject:
In 46 Ops.Cal.Atty.Gen. 34, 35 (1965), this office also concluded that meetings could not be semi-closed. Thus, certain interested members of the public may not be admitted to a closed session while the remainder of the public is excluded . . . . As a general rule, closed sessions may involve only the membership of the body in question plus any additional support staff which may be required (e.g., attorney required to provide legal advice; supervisor or witnesses may be required in connection with disciplinary proceeding; labor negotiator required for consultation). Persons without an official role in the meeting should not be present.
In addition, a provision of the Brown Act states that “a person may not disclose confidential information that has been acquired by being present in an [authorized] closed session . . . to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” While this provision appears to contemplate the release of confidential information following a closed session, its intent is consistent with the views of the Attorney General expressed above about strictly limiting access to information discussed during a closed session where the public has been excluded.
Accordingly, I conclude that because a third party was able to listen to a limited portion of the closed session – beyond the specifics of the Council decision which was publicly reported following the closed session – the result is that July 24 closed session was not conducted in complete compliance with the Brown Act. I will now turn to the second question.
Question 2. Are decisions valid made in closed session based on what may have been a discussion conducted outside of the parameters of the law?
The Brown Act specifies that if certain specified provisions of the Act are violated, decisions made in connection with those violations are invalid. For example, if a legislative body makes a decision on an item that is not on the agenda (and no urgency exception applies), or if a decision in made through a serial meeting out of the presence of the public, the Brown Act provides that a court may invalidate those decisions, provided the party filing the lawsuit has first provided the legislative body an opportunity to cure the violation (by making the decision at a future meeting in compliance with the Brown Act, for example). Similarly, the Brown Act specifically provides that if a legislative body fails to give an employee advance notice prior to considering complaints or charges against that employee in closed session, "any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void."
The Brown Act does not provide for invalidation of decisions made in a closed session where an unauthorized person attends, observes or listens to a closed session. Rather, under the Brown Act, a court could issue an injunction to prevent unauthorized persons from listening to closed sessions in the future, or require that future closed sessions be taped and the tapes be maintained for possible review by the court. Of course, the legislative body could always choose to hold a second closed session limited to authorized persons and reconsider its previous decision, or vote to publicly provide more details about the discussions that occurred in closed session, but my research has uncovered no law or court decision that requires the body to do so, or that provides that decisions made in such circumstances are invalid.
Finally, I regret not missing this issue at the closed session. During the closed session, I was focused on the substance of meeting, and the implications of a second person in Councilmember Viramontes’ vehicle did not occur to me during the meeting. Given that I am responsible for advising the Council on the requirements of the Brown Act, and bring possible Brown Act issues to the attention of the Council, I apologize for my failure in this regard.