Imperial Beach City Council to Hold Special Closed Door Meeting Tuesday for Anticipated Litigation
Jun 26, 2017 07:00PM
● By Paul Spear
The meeting will be held at 7pm. Above is a copy of the Agenda for the Special Meeting in PDF format that you can download.
Bagley-Keene Act: A state body may hold a closed session to confer with, or receive advice from its legal counsel about "pending litigation" when discussion in open session would prejudice the state body's position in the litigation. Cal. Gov't Code § 11126(e)(1). "Pending litigation" exists where:
(1) an adjudicatory proceeding has been formally initiated before a court, administrative body exercising its adjudicatory authority, hearing officer or arbitrator, where the state body is a party,
(2) the state body has, or is deciding whether it has, a significant exposure to litigation, based on existing facts and circumstances or
(3) the state body has initiated or is deciding whether to initiate litigation. Cal. Gov't Code § 11126(e)(2).
The state body's legal counsel must prepare and submit a memorandum stating the specific reasons and legal authority for the closed meeting, including where applicable: the title of the litigation or the "existing facts and circumstances" supporting the state body's lawsuit or liability. Cal. Gov't Code § 11126(e)(2)(C)(ii). The memorandum should be submitted to the state body before the closed session, but must be submitted no later than one week after the closed session. Cal. Gov't Code § 11126(e)(2)(C)(ii). The memorandum does not have to be disclosed under the California Public Records Act, Government Code Section 6254.25. However, if the state body discloses the memorandum, it is not deemed as a waiver of its lawyer-client privilege. Cal. Gov't Code § 11126(e)(2)(C)(iv).
This section is the sole expression of the lawyer-client privilege under the Bagley-Keene Act. Cal. Gov't Code § 11126(e)(2).
Brown Act: The Brown Act provides the same exception for a closed session for "pending litigation" as the Bagley-Keene Act. Cal. Gov't Code § 54956.9. However, the Brown Act defines "existing facts and circumstances" with regard to the agency's significant exposure to litigation as follows:
(1) Facts and circumstances that may result in litigation against the agency but which the local agency believes are not yet known to plaintiffs or potential plaintiffs;
(2) Facts and circumstances including an accident, disaster, incident or transactional occurrence that might result in litigation against the agency, that are known to plaintiffs or potential plaintiffs — these facts and circumstances must be on the agenda or announced;
(3) The receipt of a claim or written communication from a potential plaintiff under the Tort Claims Act. The claim or written communication must be made available for public inspection;
(4) A statement by a person made in an open and public meeting threatening litigation on a specific matter for which the agency is responsible;
(5) A statement of the type described in (4) above that was recorded by an official or employee of the agency prior to the meeting. The record does not have to identify the alleged victim of unlawful or tortious sexual conduct or the person threatening litigation on their behalf, or a public employee who is the alleged perpetrator, unless the identity has been publicly disclosed. The record must be made available for public inspection. Cal. Gov't Code § 54956.9(b)(1)(3).
“[T]he purpose of [section 54956.9] is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation oriented policy decisions.” Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 184-84, 41 Cal. Rptr. 3d 200 "Pending litigation" also includes taking action upon the settlement of a lawsuit. 75 Ops. Cal. Att'y Gen. 14 (1992). Advisory committees may also meet with legal counsel in a closed session to discuss pending litigation. 67 Ops. Cal. Att'y Gen. 111 (1984). It would not include meeting with an adversary and his or her counsel to settle potential litigation. Page v. Miracosta Community College Dist., 180 Cal. App. 4th 471, 502, 102 Cal. Rptr. 3d 902 (2009). Nor would legal counsel include a mediator with whom members of a legislative body conferred with during a mediation with an adversary to settle potential litigation. Id. at 504.
During the public meeting in which the closed session is held, the legislative body shall report any action taken in closed session regarding approval given to its legal counsel to initiate, intervene or defend a lawsuit, or approval to settle pending litigation. Cal. Gov't Code § 54957.1(a)(2) and (a)(3). The body must report the adverse parties and the substance of the litigation. However, in the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendant or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, defendants and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless disclosure would jeopardize service of process on a party or affect settlement negotiations. Cal. Gov't Code § 54957.1(a)(2).