TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Quinn Barrow, City Attorney
SUBJECT:Title
City Council Policies regarding: (1) Description of Closed Sessions regarding Pending Litigation; (2) Consideration of Settlements in Open Sessions; and (3) Restriction on the Use of Technology During City Council Meetings (City Attorney Barrow.)
ADOPT POLICIES
Line
_________________________________________________________
Recommended Action
RECOMMENDATION:
Staff recommends that the City Council review the policies and direct staff to incorporate the policies in the upcoming Sunshine Policy.
Body
FISCAL IMPLICATIONS:
There are no fiscal implications associated with this action.
BACKGROUND:
The primary intent of the Brown Act is that the people’s business be conducted openly and transparently. The Brown Act also recognizes that city councils may meet in private with its advisers on specifically enumerated topics, such as litigation. The Manhattan Beach City Council is committed to open government and transparency, and strives to comply, not only with the letter of the Brown Act, but with the spirit of the Act. To that end, the City Council directed staff to draft policies to: (1) Provide the public with more information in the agenda description of closed sessions regarding pending litigation; (2) consider settlements in open sessions; and (3) restrict the use of technology during council meetings.
DISCUSSION:
The Ralph M. Brown Act (California Government Code Section 54950 et seq.), more commonly known as the “Brown Act,” is California’s “sunshine” law for local government. In a nutshell, the Brown Act requires local government business to be conducted at open and public meetings. Government Code Section 54950 declares that in enacting the Brown Act, “the Legislature finds and declares that the 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.” In adopting the Brown Act, the state legislature also recognized that it is in the public interest for city councils to meet in private with their advisers on specifically enumerated topics, such as litigation (Government Code Section 54956.9), when discussion in open session would prejudice the position of the city in the litigation. Thus, it is often a balancing act for cities to achieve transparency without endangering the public fisc.
On a regular basis, the Manhattan Beach City Council has adopted and amended its rules in efforts to conduct the people’s business openly and achieve greater transparency. On an upcoming agenda will be a “Sunshine Policy” which incorporates each of the various “Sunshine” provisions the Council has adopted over the past three years. This summer, the City Council directed staff to draft policies to: (1) Provide the public with more information in the agenda description of closed sessions regarding pending litigation; (2) consider settlements in open sessions; and (3) restrict the use of technology during council meetings.
CLOSED SESSIONS
The Brown Act allows a local legislative body such as the Manhattan Beach City Council to convene a “closed session” during a meeting in order to meet privately with its advisors on specifically enumerated topics. Examples of business that may be conducted in closed session include labor negotiations, real estate negotiations and discussion and settlement of pending litigation (including claims, existing litigation, anticipated litigation and threats of litigation). Pursuant to Government Code Section 54956.9, city councils may enter into closed session to discuss “pending litigation” Section 54956.9 provides:
“Closed sessions concerning pending litigation; Lawyer-client privilege
(a) Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session 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.”
A. Description of Pending Litigation
The Brown Act requires that closed session business be described on the public agenda. Government Code Section 54954.5 provides a “bonus” of sorts for using prescribed language to describe closed sessions. If an agency uses the prescribed language, legal challenges to the adequacy of the description are precluded. This so-called “safe harbor” encourages many local agencies, such as Manhattan Beach, to use a very similar agenda format. Section 54954.5 provides: “For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format.”
The “safe harbor” description for anticipated litigation is:
“CONFERENCE WITH LEGAL COUNSEL (ANTICIPATED LITIGATION)
Significant exposure to litigation pursuant to (paragraph (2) or (3) of subdivision (d) of Section 54956.9 (Specify number of potential cases)
(In addition to the information noticed above, the agency may be required to provide additional information on the agenda or in an oral statement prior to the closed session pursuant to paragraphs (2) to (5), inclusive, of subdivision (e) of Section 54956.9.)”
Pursuant to the above parenthetical, it has been the City’s recent practice to provide more information regarding closed sessions. Consistent with that practice, the City Council hereby adopts the following policy in order to provide more information to the public regarding litigation:
The City is committed to providing additional information on the written agenda to describe closed sessions concerning pending litigation.
B. Consideration of Settlements in Open Session
The Brown Act allows local legislative bodies to convene a “closed session” for the purpose of considering and authorizing settlement of “pending litigation,” which includes claims, existing lawsuits, anticipated litigation and threats of litigation. Consistent with the spirit of the Brown Act, the City Council hereby adopts the following policy so that members of the public may comment on a proposed settlement before the Council takes action on the proposed settlement:
Proposed settlements of litigation will be placed on the open session portion of City Council meeting agendas for Council action except where the City Council finds, based upon the advice of legal counsel, that open discussion would prejudice the position of the City.
USE OF E-COMMUNICATION, CELL PHONES AND ELECTRONIC TABLETS DURING CITY COUNCIL MEETINGS BY CITY COUNCIL MEMBERS
The Council directed staff to return with a policy restricting the use of emails, cell phones, text messages and social media during council meetings. Based upon such direction, the City Council hereby adopts the following policy:
City Council members shall not use electronic devices at any time during a City Council meeting, with the exception of electronic tablets used for accessing City Council agendas and reports (and relative subject matter notes using City-sponsored software).
The foregoing limitation shall not apply to receipt of telephone calls or text messages from family members in the event of an urgent family matter. The Council member wishing to respond to such a message during the meeting shall do so during a recess or shall request to be excused from the meeting to place the return call or text in a manner that does not disrupt the meeting.
CONCLUSION:
Staff recommends that the City Council adopt the above policies and direct staff to include these policies in the Sunshine Policy.