Posted by: Patricia Salkin | February 23, 2020

CA Appeals Court Finds Closed Sessions Considering an Application were Permissible

This post was authored by Matthew Loescher, Esq.

Applicants, Michael and Diane Archer, sought to build a “tennis cabaña” next to a tennis court on their 2.38-acre property. The City of Lafayette approved the application and plaintiffs Lori Fowler, Scott and Jeanne Sommer, Val and Rob Davidson, and Avon and George Wilson brought this action challenging the approval on the grounds that the City improperly considered the application in closed sessions in violation of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) and violated their right to a fair hearing. Plaintiff’s appealed in this case after the trial court ruled against them.

At the outset, the court noted that one of the exceptions to the Brown Act’s open meeting requirements allows closed sessions for an agency 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.” Thus, section 54956.9, subdivision (e)(2) applied to events such as “an accident” or “disaster,” or a “transactional occurrence that might result in litigation.” Additionally, subdivision (e)(5) of section 54956.9 specifically addressed a public agency’s obligations when a person has threatened litigation outside a public meeting. Accordingly, the court found this provision, rather than subdivision (e)(2), applied.

Pursuant to subdivision (a) agendas and writings are disclosable public records that must be made available on request without delay. Subdivision (b) requires that, if the writing is distributed less than 72 hours before the meeting, it must be made available at a location specified in the agenda or be posted on the agency’s web site. Read together, the court found that these sections require a litigation threat will be reduced to writing and included in the agenda materials available to the public upon request. Here, the threat was entered in the City’s computer system and was conveyed to the City Council as the basis for a closed session. Under sections 54956.9, subdivision (e)(5) and 54957.5, a record of this threat should have been included in the agenda packet made available at City offices.

Notwithstanding the aforementioned, in cases in which there was no basis to conclude the closed sessions were themselves improper, the merits and demerits of the project were debated in multiple City Council meetings, and where there was no indication of how the plaintiffs would have proceeded differently had they known of the threat, the court found no basis for inferring the possibility of prejudice from the City’s failure to disclose in the meeting packet the applicant’s litigation threat.

Fowler v. City of Lafayette, 2020 WL 612870 (CA App. 2/10/2020)

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