Legal Alerts Feb 02, 2015

Local Agencies Face Suits Alleging Brown Act Violations for Failing to Release Closed Session Vote Details

Closed Session Decision and Vote Details Must be Publicly Reported Within 24 Hours

Local Agencies Face Suits Alleging Brown Act Violations for Failing to Release Closed Session Vote Details

Pasadena City College is facing criticism — and a lawsuit — for its perceived lack of transparency regarding its Board of Trustees’ vote to approve a $400,000 severance package for controversial former school President Dr. Mark Rocha. The lawsuit, filed Sept. 25 by Sacramento-based watchdog group Californians Aware, claims that the Board took the action in closed session to avoid a public hearing. The Board cited “anticipated litigation” as the reason for the closed session. But, according to the lawsuit, the severance package was part of Rocha’s existing contract and was not a result of any litigation or litigation threat.

The Board unanimously approved the severance package during a closed session on Aug. 6, but failed to announce the decision during the open session of the same meeting, as required under California’s Brown Act, which regulates meetings of governing bodies. The Brown Act requires that all votes in closed session be publicly reported orally or in writing within 24 hours and copies of any contracts or settlement agreements approved be made available promptly. In addition to failing to report the vote, College officials also failed to make the severance package available when reporters began requesting it. If a judge rules against the College, the severance package could be voided and the Board would have to take a legal vote on the issue, which could include a public hearing.

On a similar note, the Chico City Council came under fire this month for alleged ongoing Brown Act violations, including failure to release the details of a July closed session vote not to recruit for city manager, thereby immediately promoting Assistant City Manager Mark Orme to the position. The City’s refusal to release the roll call votes from the closed session meeting is part of a pattern of Brown Act violations, according to Jessica Allen, who sent the City Council a cease-and-desist letter regarding its meeting practices and filed a lawsuit on Oct. 24.

The Brown Act is clear about closed session — only certain matters can be discussed, and the governing body must make public any action taken in closed session as well as the vote or abstention of every member present. Although local government bodies may want to shield certain matters from public hearing or public comment, it is important to remember that only certain issues — including litigation, real property purchases and labor negotiations — can be discussed in closed session, and even when closed session action is appropriate, the topic must be disclosed in advance and a detailed voting record must be released to the public.

If you have any questions about the Brown Act, please contact the attorney author of this legal alert listed to the right in the firm’s Public Policy and Ethics Compliance group, or your BB&K attorney.

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