HomeMy WebLinkAboutAGENDA REPORT 1991 1002 CC REG ITEM 08JTO:
FROM:
DATE:
MOORPARK
799 Moorpark Avenue Moorpark, Cal fornia 93021
The Honorable City Council
Steven Kueny, City Manager
September 27, 1991
ITEM g-
(805) 529 -6864
DO-??ARK, CAL ,_
city Council
of _Z4Z2 199/
7
AC10N: - -�
�y
SUBJECT: Consider Opinion Request to State Attorney General
Concerning Pending Litigation Exception to Brown
Act
The Ventura County District Attorney is seeking an opinion
from the Attorney General concerning closed session
discussion of settlement of a pending lawsuit. The Attorney
General is soliciting the view of interested parties before
issuing an opinion.
As the Council is aware, the ability to discuss settlement of
a lawsuit in closed session Ls important to preclude
disclosing negotiating strategy and terms to the other
involved party. An action to settle and to disclose the
financial and legal terms of the settlement are matters
appropriate to an open meeting but riot the settlement
discussion. If a lawsuit cannot be avoided, the parties,
whether public or private entities: should seek a settlement
of their dispute. On practical terms, the opinion being
sought by the District Attorney would probably lead to fewer
settlements; settlements less favorable t10 the public agency;
and. more costly settlements and legal. expenses.
I recommend that the City Cot.,encill authorize the City
Attorney, either individually oy joint-ly with other City
Attorneys, to send a letter t:.o the Attorney General
expressing the City Council's support that closed session
discussion of settlement action for a pending lawsuit is
consistent with the pending lit i -ja* i.on ex:.,eption of the Brown
Act..
STAFF RECOMMENDATION
Authorize the City Attorney to send a letter to express the
City Council's support of the matter consistent with
this report and to expend a not—X, exceed eight hours on this
matter.
SK:sc
PAUL W LAWR.ASON JR BERNARDO M PEREZ SCOTT MONV )ME R, HOY E TALLEY JR JOHN E WOZNIAK
Mayor Mayor Pro Tem Cotw(Hmeinber Councelmembe Councilmember
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Law Offices
BURKE, WILLIAMS & SORENSEN
611 West Sixth Street, 25th Floor
Los Angeles, California 90017
2310 Ponderosa Drive 3200 Bristol Street
Suite 1 Suite 640
Camarillo, California 93010 Costa Mesa, California 92625
BURKE, WILLIAMS, SORENSEN & GAAR
Lighton Plaza
7300 College Boulevard, Suite 220
Overland Park, Kansas 66210
T E L 8 C O P Y
TO: Steve Kueny
FROM: Cheryl Kane
SUBJECT: Brown Act
TELECOPIER if: CITY OF MOORPARK
X E 8 8 A G E
(805) 529 -8270
DATE: 9/24/91
ACCOUNT 1: 01359 -001
TOTAL NUMBER OF PAGES (INCLUDING THIS PAGE) :
NOTE: The A.G. is soliciting views Df interested parties
before issuing an Opinion.
T:iE SENT: AM /PM DATE:
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(19/29/91 09' 27 'U92132.362700 4t," 1,A I N - -- CITY OF MOORPARK 4� 002/01 1
OFFICE OF THE DISTRICT ATTORNEY
MICHAEL D. BRADBURY
District Aztamey
August 1, 1991
County of Ventura, State of California
The Honorable Daniel Lungren
Attorney General
1515 W Street, Suite 511
P.O. Box 9442M
Sacramento, CA. 94244 -2550
Attention: Opinion Unit
Dear Mr. Lungren:
COLLEEN TOY WHITE
A Ntant Dlstrict Attorney
VINCENT J.O'NEILL, )r.
Chkf Deputy Distfict Attorney
BRADEN McKINLEY
Chkf Investigator
We request an Opinion on the following question: May a local agency such as the
County Board of Supervisors use the pending litigation exception to the Brown Act
(Govt. Code § 54950 et seq.) for a closed session to deliberate and take action upon the
settlement of a lawsuit? As described in the attached memorandum, our conclusion is
that such deliberations and actions are illegal.
This issue is Of importance to not only District Attorneys, but elected and appointed
auditors responsible for payment on settlement agreements as well.
If you have any questions, please contact Special Assistant District Attorney Donald
Coleman at (805) 6545041.
Thank you for your consideration.
Very ft* yob
MICHAEL D. BRAD y
District Attorney
MDB:MJH:eak
Opinion13A
4
(- i i!4 , e. (a z a.o
AUG 05 1991
Ro"ived by
0
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OFFICE OF THE DISTRICT ATTORNEY
COUNTY OF VENTUAA
MEMORANDUM
July 16, 1991
TO: MICHAEL D. BRADBURY
DISTRICT ATTORNEY
FROM: DONALD D. COLEMAN
SPECIAL ASSISTANT DISTRICT ATTORNEY
SUBJECT: BROWN ACT CLOSED SESSIONS
ISSUE
May the Board Of Supervisors use the pending litigation exception
to the Brown Act (Govt. Code 3 54950 et seq.) to go into closed
session to deliberate and take action upon the settlement of a
lawsuit.
CONCLUSION
NO- The pending litigation exception to the Brown Act permits a
local agency, such as the Board of Supervisors, to go into closed
session for the limited purpose Of conferring with or receiving
advice from its attorney When public disclosure of such advice
might prejudice the agency's position in the litigation. There
is no authority that Would permit the Board to either deliberate
upon or take action upon a litigation settlement agreemant in
closed session.
5140-1 (4., I&'")
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ANALYSIS
The Brown act (Govt. Code 1 54950 at sag.) sets forth the
requirements for meetings conducted by local agencies such as a
county board of supervisors (Govt. Code 1 54951). The general
rules are set forth in Government Code sections 54950, 54953(x)
and 54962.
Section 54950 . . . It is the intent of the
law that their (local agencies') actions be
taken openly and that their deliberations be
conducted openly.
Section 54953(a)
legislative body
open and public,
permitted to att,
legislative body
provided in this
. . . All meetings of the
Of a local agency shall be
and all persons shall be
and any meeting of the
of a local agency, except as
chapter.
section 54962 . . . Except as expressly
authorised by this chapter, no closed session
may be held by any legislative body of any
local agency.
In aagence, the general rule is that all meetings and actions
must occur in open session unless there is an express statutory
provision which permits otherwise.
Since 1984, the express statutory provisions for closed sessions
to discuss legal issues and positions with counsel have been
combined in the so- called "parading litigation" exception of
Government Code section 34956.9.
that:
2
This section makes it clear
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For purposes of this chapter, all expressions
of the lawyer- client privilege other than
those'provided in this section are hereby
abrogated. This section is the exclusive
expression of the lavyer- client privilege for
Purposes of conducting clased- session
meetings pursuant to this chapter.
As such, any justification for closed- session action in
settlement situations must be found in the express language of
section 54956.9, if it exists at all.
The pending litigation exception of section 34956.9 states in
Pertinent part:
Section 54956.9.
Nothing in this chapter shall be construed to
prevent a legislative body of a local agency,
based on advice of its legal counsel, from
holding 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 . . .
For purposes of this section, litigation
shall be considered pending when any of the
following circumstances exist:
(a) An adjudicatory proceeding before a
court, administrative body exercising its
adjudicatory authority, bearing officer, or
arbitrator, to which the local agency is a
party, has been initiated formally.
(b)(1) R point has been raached 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.
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(2) Based on existing facts and
circumstances, the legislative body of the
local, agency is meeting only to decide
whether a closed session is authorised
pursuant to paragraph (1) of this
subdivision.
(c) Based on existing facts and
circumstances, the legislative body of the
local agency has decided to initiate or is
deciding whether to initiate litigation.
Prior to bolding a closed session pursuant to
this section, the legislative body of the
local agency shall state publicly to which
subdivision it is pursuant. If the session
is closed pursuant to subdivision (a), the
body shall state the title of or otherwise
specifically identify the litigation to be
discussed, unless the body states that to do
so would jeopardise the agency•s ability to
effectuate service of process upon one or
more unserved parties, or that to do so would
Jeopardize its ability to conclude existing
settlement negotiations to its advantage.
Nothing in this section appears to justify the use of a closed
session to either deliberate or take action upon the settlement
of pending litigation.
The first paragraph defines the scope of the exception. It
applies only to situations in which (1) the session is undertaken
to confer with or receive advice from legal counsel and (2) open
Public discussion of this advice would prejudice the agency's
Position in the litigation. There is no language in this
paragraph which could be interpreted as suggesting that an agency
Could deliberate or take action upon a settlement agreement while
receiving advice from its attorney. Absence such express
authorization, as required by Government Code section 34962,
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CITY OF MOORPARK li� 007/011
there appears to be no legitimate basis for reading such
authorization into the otherwise clear wording of the section.
The definition of "pending litigation" contained in the exception
seems to contemplate situations preliminary to settlement (i.e.,
after the filing of an action oz, in contemplation of a possible
filing). Indeed, this view is reinforced by the language of the
paragraph following the pending litigation definition which
permits the agency to withhold from public disclosure the
identity of the litigation which is to be the subject of a closed
session where doing so would jeopardize the ability of the agency
to "conclude existing settlement negotiations to its advantage."
Thus, the exception contemplates ongoing nonfinalized
negotiations as a condition precedent to the use of a closed
session in at least the context of subdivision (a).
At any rate, nothing in the definition of "pending litigation"
expressly suggests that this exception would Justify the use of a
closed session to deliberate upon or actually take action upon a
settlement agreement.
The taking of action under other exceptions to the Brown acts
open meeting rules is only permitted in narrowly defined
circumstances which are obvious from the express language of
those sections.
The licensing exception of Government Code section 54956.7, for
example, only permits action in closed session for the purpose of
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determining whether an applicant for a particular license who has
a criminal record has been sufficiently rehabilitated to be
allowed to have that license.
The real estate negotiation exception of Government Code section
54956.8 only permits action in closed session for the purpose of
giving instructions to agency negotiators regarding the
acceptable price and terms of payment in a particular real estate
negotiation.
The general closed session provision of Government Coda section
54957 only permits closed sessions to consider (i.e., deliberate
upon and decide) matters affecting national security and various
emPloYe• matters, but, any actions talon on employee matters must
be reported at the next public session by express provision of
Government Code section 54957.1.
The employee compensation exception Of Government Code section
S49S7.6 only permits action in closed session for the purpose of
giving negotiating instructions to agency representatives during
labor negotiations.
In all of these exceptions, the scope of permissible deliberation
or action is stated in a clearly- expressed manner not appearing
in the pending litigation exceptior.
Though there is no authority directly on point on this issue,
cases and various Opinions of the attorney General that touch on
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this subject seam to reinforce the conclusion that the pending
litigation exception does not authorize local agencies to take
settlement action in closed session.
(1984) 158 Cal-APP-3d 893, addressed the issue of whether a
county board of supervisors' "settlement claim committee" could
refuse to turn over the minutes of a closed session in Which the
"secret" settlement or a tort claim had been reached. In
rejecting the County#s position, the court noted
that:
The county's claims settlement committee
discussed the clemens, settlement in a
tension closed to the public.
does nots however, authorize th The Brotim pct
e holding of
Closed sessions by legislative bodies for the
Purpose of discussing settlement claims.
Thus, the committee +s secret meeting was in
clear violation of the Brown fit.
Xd• at P. 907. Cf. Settlement Xegotiations, 39 Hastings Law
aournal, p. 1802_Zall.
Though this case arose before the passage of the pending
litigation exception in 1484, it does stand still for the
Proposition that nothing in the Brown Pict outside that exception
permits closed sessions to consider, much less take action on,
settlement Claims. Since nothing in the exception expressly
permits it either, this case is consistent with the conclusion
that such actions are prohibited.
In 71 0ps.C41.1►tty.Gen. 96 (1988), the Attorney General's Office
stated that the pending litigation exception could not be used to
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Justify any closed- session deliberations by a local agency
even after a public hearing. "To conclude otherwise, would, we
believe, fly in the face of the most recent legislation to be
found in the act, that is section 56962 , . . " Z,Q. at p. 106.
In (1985)
171 Ca1.App.3d 95, again based on a set of facts that arose
before the lAgislature codified an agency's attorneyciient
privilege in Government Code section 56956.9, the court
disapproved the use of a series of private phone conversations
between agency members to decide how to take action on the
transfer of ownership of some real property.
On the face of the pleadings, the single
Purpose of the communications with the
attorney is a legislative commitment, Which
as we have stated serves only to evade the
central thrust of the Public Meeting Law.
Id. at P. 105.
Earlier, in 62 Ops.Cal.Atty.Gen. 150 (1979), the attorney General
disapproved the use of a closed session for a joint litigation
settlement conference between two agencies, again because there
was no express authority to do so in the grown Act.
In
erviMors (1968) 263 Cal.App.2d 61, dealing with a private
meeting over a labor dispute, the court set out the general
guidelines for interpretation of the Brown Act as it relates to
discussions between an agency and its attorneys
09x29 91 09-332 X92132362700
4 I N --- CITY OF MOORPARK Z O l 11011
Public board members, sworn to uphold the
law, may not arbitrarily or unnecessarily
inflate confidentiality for the uose of
deflating the spread of the public Meeting
Law.
id. at P. 58.
Finally, in
SURI }- s�_ (1981) 122 Ca1.App.3d 813, the court did Uphold a
closed session regarding the settlement of litigation, but the
closed session involved only consisted of the receipt of advice
by the board from an attorney. No action was taken in closed
session (Cf. 67 Ops.Cal.Atty.Cen. 112 (1984)). This appears to
reflect the appropriate view of the scope of permissible conduct
that an agency may engage in in contemplation of litigation. The
Pending litigation eYeeption, which was enacted later, appears to
Codify this position.
In sun, the Brown Act was desi
fined to prevent the taking of
action by local agencies in closed, secret session. Thera
appears to be no legal basis for permitting local agencies to
subvert this general policy by bolding closed sessions to
deliberate and take action upon settlements under the "pending
litigation" exception.
bDC: XjH: eak
brown Act.M3C
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