Authored Articles & Publications May 28, 2015

How to Avoid Brown Act Violations When Discussing Litigation Issues

BB&K Attorney Tori Hester Writes in PublicCEO About How Discussion of Sensitive Topics by Public Agencies Can Lead to Challenges

By Victoria Hester

A nearly $400,000 severance deal struck between Pasadena Community College and its former president was nullified by a judge after determining that the deal was improperly discussed and finalized in closed session. A Los Angeles Superior Court judge recently found that the Pasadena Community College Board of Trustees violated the Brown Act. The Brown Act, California’s open meeting law, generally requires that meetings of legislative bodies be open to the public.

A nonprofit group, Californians Aware, filed the lawsuit against the college, claiming that the board violated the Brown Act by finalizing the former president’s severance package in two closed sessions rather than in public meetings. The college claimed that a dispute with the former president had matured into potential litigation, and that the two closed sessions, held on July 22 and Aug. 6, qualified as “conferences with legal counsel regarding anticipated litigation,” and were exempt from the Brown Act’s open meeting requirement.

What the Brown Act Says about Litigation
The Brown Act allows a legislative body to hold 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.” Litigation is considered pending not only when a lawsuit has been formally initiated, but also when “based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.”

The Brown Act requires that when the facts and circumstances that may give rise to litigation are known to the potential plaintiff, they must be disclosed on the agenda or publicly announced. In the Pasadena Community College case, the facts and circumstances surrounding the anticipated litigation were not included on the college’s agendas and were not publicly announced. Both closed session agenda items noted only that the sessions were closed due to conference with legal counsel regarding anticipation of litigation.

The judge held that, although the severance package did qualify as a litigation settlement, because the college failed to announce or include on the agenda the facts and circumstances of the anticipated litigation, the college violated the Brown Act. The college and former president were given 90 days to “unwind” the agreement and revisit settlement negotiations, should they wish to do so, in compliance with the Brown Act.

What should agencies do?
Local agencies should remember that generally, the Brown Act requires meetings of governmental bodies to be open to the public. Under certain circumstances the legislative body can convene in 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.”

“Litigation” includes: Any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.

If a legislative body wants to convene in closed session to discuss pending litigation, it must state on the agenda or publicly announce the paragraph of subdivision that authorizes the closed session.

There is no need to disclose “facts and circumstances” that might result in litigation against the local agency, as long as the agency believes the facts and circumstances are not yet known to potential plaintiffs.  Facts and circumstances including an accident, disaster, incident, etc. that might result in litigation and are known to the potential plaintiffs must be disclosed, either stated on the agenda or publicly announced.

The Public Right to Know
Receipt of a claim under the Government Claims Act, or some other written communication from a potential plaintiff threatening litigation, must be available for public inspection.  A statement by a person in an open and public meeting threatening litigation on a specific matter does not need to  be disclosed because it is a public statement.  If a statement threatening litigation is made by a person outside of an open and public meeting on a specific matter, of which an official or employee of the agency makes a record, then the record must be made available for public inspection.

It is important to note that none of these rules require disclosure of written communications that are privileged and not subject to disclosure under the California Public Records Act.

The Brown Act was established to keep the business of public agencies open and transparent. If you are unsure how to proceed, it is best to discuss the specific situation with legal counsel. While litigation should always be carefully and thoughtfully discussed, it is also important to weigh the public’s right to know.

This article first appeared on PublicCEO.com on May 28, 2015. Republished with permission.

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