TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Quinn Barrow, City Attorney
Nadine Nader, Assistant City Manager
SUBJECT:Title
Adoption of Council Policies regarding Sunshine Provisions, Including Description of Closed Sessions regarding Pending Litigation and Consideration of Settlements in Open Sessions (City Attorney Barrow).
ADOPT POLICY, WITH THE ADDITIONAL PROVISIONS REGARDING CLOSED SESSIONS AND SETTLEMENTS
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council adopt the Sunshine Policy, with additional language addressing closed sessions and settlements.
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FISCAL IMPLICATIONS:
There are no fiscal implications associated with this action.
BACKGROUND:
The City Council directed the staff to draft the following policies for Council Consideration:
• Incorporating open government and transparency initiatives that the City Council has adopted over the last several years into a “Sunshine Policy.”
• Adding to that Sunshine Policy a provision requiring the City to provide the public with more information in the agenda description of closed sessions regarding pending litigation.
• Adding to that Sunshine Policy a provision requiring the City Council to consider all settlements in open sessions.
DISCUSSION:
A. Sunshine Policy.
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 advisors 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. 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.”
The Ad Hoc Open Government Subcommittee was formed in June 2011 to discuss and
consider making recommendations to the City Council regarding open government initiatives following the McKee settlement. The Ad Hoc Subcommittee held multiple publicly noticed meetings from June 2011 to March 2013, to receive public input, establish goals, and develop initiatives to improve openness and transparency in City government. The Open Government Initiatives developed and considered by the Ad Hoc Subcommittee were compiled in a Matrix for easy reference.
The concept of memorializing all “sunshine” initiatives into one document was first discussed at the August 30, 2012, Ad Hoc Open Government Subcommittee meeting. This concept was further explored in depth at a subsequent City Council meeting on April 15, 2014. At this meeting, the City Council discussed examples of “sunshine” provisions that were reviewed by the Ad Hoc Subcommittee, and whether the City should consider adopting an ordinance in conjunction with other open government initiatives, including the already established city-wide Public Records Act Protocol.
At the August 18, 2015 City Council Meeting, the City Council clarified the direction to staff to develop a Sunshine Policy. Additionally, staff was further directed to incorporate all of the previous "Sunshine Provisions" and to report back to the City Council with an all-inclusive policy memorialized in one document.
The attached “Sunshine Policy” is intended to supplement both the “Brown Act” and
California Public Records Act. This policy is also intended to memorialize the work of the Ad Hoc Subcommittee as well as incorporate additional open government efforts that have been implemented over the past year. The policy is organized into the following sections:
1. Purpose
2. Findings
3. Background
4. Definitions
5. Public Access to Meetings
6. Budget Process
7. Training
8. Conference and Travel Reports
9. Public Records Act
CLOSED SESSIONS
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 advisors 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.
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, staff recommends that the City Council adopts the following policies in order to provide more information to the public regarding litigation:
Existing Litigation: The City will provide additional information to describe closed sessions concerning existing litigation to adequately inform the public of the nature of the litigation.
Anticipated Litigation: The City will provide additional information as to the existing facts and circumstances to describe closed sessions concerning anticipated litigation.
B. Consideration of Settlements in Open Session
The Brown Act allows local legislative bodies to convene a “closed session” for the purpose of discussing, authorizing settlement of, and settling “pending litigation,” which includes claims, existing lawsuits, anticipated litigation and threats of litigation. Government Code Section 54957.1 requires that settling of lawsuits in closed session be publically reported as follows:
“Approval given to its legal counsel of a settlement of pending litigation, as defined in Section 54956.9, at any stage prior to or during a judicial or quasi-judicial proceeding shall be reported after the settlement is final, as follows:
(A) If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held.
(B) If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement.”
The Council may want to consider the following policies that exceed the minimum requirements of the Brown Act:
Mayor’s initial proposal:
Proposed settlements of litigation shall be placed on the open session portion of City Council meeting agendas for Council action.
Alternative Proposal:
Proposed settlements of litigation shall be placed on the open session portion of City Council meeting agendas for Council action. Notwithstanding the above policy, there may be exceptional facts where it is in the best interest of the City to accept settlement of litigation in closed session, in which case the City shall report in open session the acceptance of the offer, and make the final settlement agreement available during the Open Session.
Under this proposal, if the settlement is not “finalized” in the closed session, it must be placed on a subsequent City Council agenda for consideration in open session.
CONCLUSION:
Staff recommends that the City Council adopt the attached Sunshine Policy, with policies regarding closed sessions and settlements, and direct staff to include such policies in the Sunshine Policy.
Attachments:
1. Draft Sunshine Policy
2. Open Government Initiatives Matrix