While California’s Brown Act establishes that public business must be conducted, well, in public, government agencies can hold private meetings to discuss things such as litigation, real estate transactions and labor negotiations. But they must disclose topics in advance, the legal basis for the closed session, and make final decisions public.
Nothing in the Brown Act limits communities’ ability to enact their own “sunshine” laws expanding access to local government information. Indeed, several Bay Area communities including San Francisco, Contra Costa County, and Milpitas have done just that.
For example, here’s the information that must be published in Milpitas about closed session real estate negotiations: the specific property including address and cross streets, the individuals doing the negotiating, and specifically what is being negotiated.
Further, that city requires that closed sessions be recorded, the recordings kept for 10 years, and, with some exceptions, made public within two years or “whenever all rationales for closing the session are no longer applicable.” (Milpitas Municipal Code, I-310-2.60)
Benicia’s sunshine ordinance requires the City Council to hear public comment – at length – on closed session items beforehand. “Spokespersons for the proponent(s) of an agenda item and for the opponent(s) shall each have 15 minutes to present their case,” the ordinance further specifies. (Benicia Municipal Code 4.08.090)
One way to monitor the activities of closed session meetings is through the council reports after each session, general counsel for the California Newspaper Publishers Association Tom Newton told the LA Times Data Desk. “If there are a lot of closed sessions without any action reported out, that would be a red flag.”
In 1990, then-Attorney General John K. Van De Kamp issued an opinion that the Midpeninsula Regional Open Space District violated the Brown Act by publishing an annual list of about 700 parcels of land that might be discussed in closed session during the year – when, in fact, only a few of the listed parcels were actually discussed – and describing the closed sessions’ subject as “real properties which the negotiations may concern.”
This description didn’t, in Van de Kamp’s opinion, identify the subject under discussion sufficiently to be “reasonably consistent with the general purpose and intent” of the Brown Act to enable “members of the public an opportunity to comment or to take pertinent action in favor of or opposition to a particular acquisition.”
“It is, of course, well established that the Brown Act should be interpreted liberally in favor of its open meeting requirements, while the exceptions to its general provisions must be strictly, or narrowly, construed.” Van de Kamp wrote.
He further went on to quote the Brown Act (California Government Code Sec. 54950 – 54963) that “…public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
The Santa Clara City Council routinely schedules closed session meetings, with equally routine agendas. Sometimes the closed session isn’t held, and often not all the agenda items are discussed. And there are almost never any reportable actions from Santa Clara’s closed session meetings. All of which seems curious for a city that prides itself on public ethics.
Another curious practice is the Santa Clara City Council’s method for interviewing and voting on commission appointments. Interviews are conducted in the Council Chambers lobby – supposedly because interviews in the Council Chambers would be intimidating. Council members then confer in private to make their decisions – the actual vote isn’t recorded or reported.
Decoding Closed Session Meetings
Specialized language and off-putting agenda layout offer little encouragement for Santa Clara residents interested in staying informed about the City Council’s closed session discussions – which are commonly about real estate, employee contracts, and actual or potential lawsuits.
However, with a little tutoring, voters can puzzle out a few things from these jargon-packed announcements in the council agenda.
Take, for example, the following: “Conference with Real Property Negotiator Pursuant to Government Code Section 54956.8.” This is simply announcing that a closed session is being conducted as allowed under the California Brown Act.
Instead of an address, this is followed by the cryptic identifier: APN 123-45-678. Here’s how to decode this. “APN” stands for Assessor’s Parcel Map. To identify the property in question, go to the county assessor’s website (services.sccgov.org/ari/search.do) and enter the parcel number. You’ll see the location (and address if it has one) as well as the assessor’s map of the parcel.
The other subject currently under closed session discussion is contracts with the Santa Clara’s 10 employee bargaining groups. Instead of ‘contracts’ however, these are called MOUs -Memorandums of Understanding. You can find links to the city’s current employee contracts/MOUs at santaclaraca.gov/index.aspx?page=232.
For more, Santa Clara University’s Markkula Center for Applied Ethics (www.scu.edu/ethics) offers a discussion of local government transparency, which can be unearthed by selecting “Government Ethics,” then “Introduction to Government Ethics,” and finally “Open Meetings, Open Records, and Transparency in Government.”
The First Amendment Coalition (www.firstamendmentcoalition.org) brings together news, legal opinion, commentary, and legislation about First Amendment press rights, the U.S. Freedom of Information Act, and California’s Brown Act.
Carolyn Schuk can be reached at email@example.com. And, yes, she is aware that the plural of “memorandum” is, properly speaking, “memoranda.”