Hobbled Lips

February 5, 2009

We have been asked by a number of readers about the validity of the secret sessions which COWncil holds. The Brown Act allows for closed sessions in very limited circumstances which we will summarize below. However, we want to begin by saying that there are times when it is truly necessary and reasonable for COWncil to meet in closed session. For example, the Town Attorney needs to be able to candidly advise the COWncil on liability without creating more liability. Litigation strategy needs to be discussed without an audience.

That said, the Brown Act, which is the State wide open meeting act, intends that the actions of local government “be taken openly and that their deliberations be conducted openly.” The Act sets forth the limited exceptions to the rule that all meetings of the COWncil must be public. It does not require that they meet in closed session and we would hope that the COWncil would avoid these secret sessions as much as possible. In the same vein, the Brown Act dictates what must be disclosed but does not limit what can be disclosed. Again, we would hope that the COWncil would adopt a practice of revealing everything which would not compromise or inhibit the closed session. The problem with secret sessions is that they are secret and COWs must rely on trust that the right to hold them is not abused.

The main exception is for litigation. The COWncil may hold a lawyer/client closed session to confer with, or receive advice from its legal COWnsel regarding litigation when based on advice of its legal COWnsel, discussion in open session would prejudice the Town’s position in the litigation. This applies in the case of pending litigation to which the Town is a party or where there is a significant exposure to or threat of litigation against the Town. A closed session is allowed when the COWncil has decided to initiate or is deciding whether to initiate litigation. The COWncil can also meet with COWnsel to decide whether such a closed session is legally authorized.

Prior to holding a closed session for litigation, the meeting agenda or a public announcement must state which section of the Brown Act applies. If the session is closed for pending litigation, the case must be specifically identified, unless the COWncil states that to do so would jeopardize the the ability to effectuate service of process or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. If litigation is not actually pending, if facts and circumstances are known to a potential plaintiff, they must be publicly stated on the agenda or announced. If the Town has received a claim or some other written communication from a potential plaintiff threatening litigation, it must be available for inspection.

In addition to litigation; closed sessions can be held to confer with real property negotiator with regard to the purchase, sale or lease of real property. The Notice must identify the property, the negotiator and whether to instruct on price, term of payment or both.

There are limited exceptions for the purpose of hiring and evaluating of an employee and for labor negotiations. There can be a closed session with the sheriff if there is a threat to public buildings. There is a special provision for considering applications by persons with criminal records. We can’t imagine when that would be applicable to our Town.

At the end of the Closed Session, the COWncil must announce in open session if any final action has been taken. Ordinarily, it needs to disclose the action and the vote. Contracts including settlement agreements become public records.

Government should be open and transparent to the maximum extent possible. Our new President just directed federal agencies not to utilize the maximum non-disclosure allowed under the Freedom of Information Act but to disclose unless there is a real reason not to disclose. We ask the COWncil to apply that standard to the Brown Act and the Public records Act.

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