The California Ralph M. Brown Act (Brown Act) requires public agencies to conduct agency business in public at properly noticed open meetings, subject to very narrow exceptions.  Under the Brown Act, meeting agendas must be published seventy-two hours prior to the governing body’s meeting.  A legislative body cannot act on Items not on the agenda.

A significant statutory exception to the open meeting rule is for a closed session for members of the governing body to confer with or receive advice from legal counsel regarding pending litigation when discussion in open session concerning the matter would prejudice the agency’s position in litigation.  Under the Brown Act, “pending litigation” has a specific and multi-layered statutory definition.  For purposes of the Brown Act, “pending litigation” means formal litigation against the Agency, or, based on existing facts and circumstances, the agency has significant exposure to litigation, is meeting to decide whether a closed session is authorized, or has decided to / is deciding whether to initiate litigation.

If the basis for closed session is significant exposure to litigation or the need to determine whether closed session is authorized, the Brown Act sets forth the following additional disclosure rules related to the source of the facts and circumstances:

1. Where the facts and circumstances that might result in litigation are not known to the potential plaintiff, the agency need not disclose such facts and circumstances on the agenda;
2. Where the facts and circumstances that might result in litigation are known to the potential plaintiff, the facts and circumstances must be stated on the agenda or announced in open session;
3. Where the facts and circumstances that might result in litigation are due to receipt of a written claim or communication from a potential plaintiff threatening litigation, the claim or communication must be made part of the agenda packet for (or otherwise made publicly available at) the open session;
4. Where the facts and circumstances that might result in litigation are due to a statement threatening litigation made by a person in an open and public meeting, there is no additional disclosure requirement;
5. Where the facts and circumstances that might result in litigation are due to a statement threatening litigation made outside an open or public meeting, the official or employee with knowledge of the threat must make a contemporaneous or other record of the statement prior to the meeting, which must be made part of the agenda packet for (or otherwise made publicly available at) the open session.

A recent First Appellate District case, Fowler v. City of Lafayette, instructs on the importance of satisfying these Brown Act requirements.  Fowler began as a dispute among neighbors over whether the City should approve a couple’s application to build a 1200 square foot tennis cabana on their private property.  At some point in the approval process, the couple’s attorney threatened to sue the City if it denied the project approval.  The threat was made by the couple’s attorney to a City planner over the phone.  The City planner noted the statement in a password-protected planning database.  The City then held three closed sessions on the dispute under the pending litigation exception but failed to disclose the facts and circumstances of the pending litigation in the agenda packet, on the agenda, or otherwise in open session.

Eventually, the City approved the cabana project.  The dispute did not end there, however.  After the approval, the anti-cabana residents learned that the City held closed session to evaluate pending litigation on the cabana project and sued, alleging the City violated the Brown Act by failing to comply with the requirements of the pending litigation exception.

In overturning the trial court’s decision for the City, the First Appellate District found the City violated the Brown Act because it failed to include a contemporaneous record of the facts and circumstances justifying the pending litigation exception in the agenda packet for the meetings during which closed session was held on the issue.  In its defense, the City argued to the Court that the note placed in the planner’s database was a public record sufficient to satisfy the Brown Act’s requirements for the closed sessions.  However, the Court disagreed, finding that the electronic notation in a password-protected database was insufficient in the face of clear language in the statute requiring disclosure as part of the agenda packet.

Despite the win on the Brown Act violation, the anti-cabana folks ultimately lost the bigger battle: to stop the cabana.  That is, the remedy sought by the plaintiffs was to nullify due to the Brown Act violation the decision to grant the project approvals.  However, because the decision to approve the cabana occurred in open session, the Brown Act failures regarding the closed sessions did not fall within the types of actions that may be nullified under the Brown Act.  Moreover, the court found the plaintiffs failed to show prejudice due to the numerous open session items on the cabana project.

The case is Fowler v. City of Lafayette (2020) 45 Cal. App. 5th 68.