School districts are often confused about the proper procedures for agendizing a closed session meeting with legal counsel on matters related to pending, potential, or threatened litigation.
In a recent decision, the Court of Appeal rejected a hyper-technical reading of the Brown Act’s notice and agenda requirements for closed session conferences with legal counsel. The Court determined that, although a closed session agenda item mistakenly cited to an incorrect Government Code provision, it substantially complied with the Brown Act because it contained all the substantive information required to notify the public that the board would be meeting with its legal counsel to discuss potential litigation. (Castaic Lake Water Agency v. Newhall County Water District (July 24, 2015, B254639) ___ Cal.App.4th ___ [14 C.D.O.S. 8026].) The dispute also illustrates the value of using the Brown Act’s safe-harbor descriptions for closed session items whenever possible to avoid litigation.
In advance of its regularly scheduled meeting, the Newhall County Water District (Newhall) posted its meeting agenda, which stated as follows:
1. Conference with Legal Counsel pursuant to Government Code Section 54956.9(c) to discuss potential litigations (2 cases).”
At the meeting, the board met with its attorneys in closed session to discuss and provide direction on two litigation items, one of which was to consider and approve the filing of litigation against Castaic Lake Water Agency, a water wholesaler (Castaic). Newhall authorized the filing of litigation against Castaic.
After the litigation began, Castaic argued that Newhall’s lawsuit was null and void, because the agendized description of the closed session meeting cited to the wrong subdivision of the Brown Act — Section 54956.9(c) instead of Section 54956.9(d)(4). Section 54956.9(d)(4) provides specific authority for a board to meet with legal counsel in closed session to discuss whether to initiate litigation against another party.
Newhall then posted a second agenda for an upcoming board meeting, which had slightly more detail and an updated citation. Newhall argued that the second agenda corrected any problems that may have existed with the first agenda.
The trial court agreed that Newhall had corrected and cured the earlier mistaken citation, and also held that the level of detail in the first agenda complied with the Brown Act’s requirements. The trial court ruled that Newhall’s litigation could go forward. Castaic appealed that decision to the Court of Appeal.
The Court of Appeal agreed with the trial court that Newhall’s litigation could proceed, but it disagreed as to why. Though the trial court relied on Newhall’s second agenda with the updated statutory citation, the Court of Appeal determined that Newhall need not have cured the initial proceeding by posting a second agenda, as the first agenda substantially complied with Brown Act requirements.
The Court of Appeal clarified that “[t]he paramount consideration is the objective of the statute.” The purpose of agenda requirements is to provide notice to interested persons. Where a board seeks to confer with legal counsel in closed session about a litigation-related matter, the Brown Act offers safe-harbor agenda language for each type of permitted closed session meeting concerning litigation. Where a board seeks to initiate litigation, for example, the safe-harbor language is as follows: “Conference With Legal Counsel – Anticipated Litigation: Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: (Specify number of potential cases).” If a school district or community college district uses the safe-harbor language on the agenda, it is immune from claims of a Brown Act violation. In the case at hand, Newhall did not use the safe harbor agenda description.
However, the Brown Act also specifies that there is no legal violation if a closed session item is described in “substantial compliance” with the safe harbor language. Substantial compliance occurs when the agenda item provides the intended substance, even if it does not technically comply with all of the Brown Act’s requirements. Since Newhall’s first agenda provided reasonably effective notice to those who might be interested in the public meeting, the Court of Appeal concluded that it substantially complied with the Brown Act requirements. The agenda informed the public that Newhall would be meeting with its attorneys in closed session to discuss potential litigation in two cases. The Court of Appeal concluded that the mistaken citation to subdivision (c) instead of subdivision (d)(4) “could not possibly have misled or confused anyone.”
This decision helps clarify the level of substantive detail that school districts and community college districts should use in order to substantially comply with the Brown Act. While substantial compliance with the Brown Act’s requirements regarding agenda items will prevent a violation, assessing whether an agenda item substantially complies requires a case-by-case analysis. Alternatively, using the exact wording of the safe-harbor language can avoid costly litigation, even if a court concludes there was no violation of the Brown Act.
Please contact us if we can be of assistance to you in drafting or advising on Brown Act compliant agenda items for any topic.