Court Requires Record of Threatened Litigation to be Included in Agenda Packet for Closed Session Item

03.09.2020

On February 10, 2020, the First District of the California Court of Appeal issued a decision in Fowler v. City of Lafayette, ___ Cal.App.5th ___ (2020).  The Court addressed the requirements of a local agency’s closed session agenda item in order to sufficiently notify the public of threatened or anticipated litigation.  We are providing a summary of the Fowler case so that local agencies are aware of the potential change to their common practices relating to closed session agenda items.

Pursuant to the Ralph M. Brown Act (“Brown Act”), local agencies may meet in 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.” (Government Code § 54956.9(a).)  Litigation is considered pending when a “point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.”  (Government Code § 54956.9(d)(2).)

We understand that many public agencies, when dealing with closed session agenda items for threatened or pending litigation, simply list the number of cases pending and do not provide any additional information. The Fowler  decision rejected this practice.

At issue in Fowler were alleged Brown Act violations made by the City of Lafayette (“City”) when considering the approval of a project proposed by the applicants (“Applicants”).  Plaintiffs appealed the approval of the project to the City Council.

During the City Council’s deliberations of the plaintiffs’ appeal, the Applicants’ attorney threatened to sue the City if it denied the project. The City Council discussed the threat of litigation from the Applicants’ attorney during closed session during three separate meetings.  On the agenda, the City Council provided that it would confer with legal counsel in closed session about one case of anticipated litigation, without identifying the case or any facts or circumstances related to the threatened litigation.

The Plaintiffs did not learn of the pending litigation threat or the closed session discussion until after the City Council’s eventual approval of the project.

The Court noted that when litigation has been threatened outside a public meeting, it may be discussed in closed session under Government Code section 54956.9(e)(5) only if a record of the threat is made before the meeting, which must be made available for public inspection pursuant to Government Code section 54957.5. The Court further discussed that the “clear import of [Government Code] section 54957.5 is that the agendas and other writings that the legislative body receives in connection with a meeting should be available to the public upon request.”  The Court inferred that a record of a litigation threat to be discussed in closed session must be included in the agenda packet made available upon request before a meeting, and in Fowler, the City failed to make the record of the threatened litigation sufficiently available to the public. The Court concluded that, “Read together, sections 54956.9, subdivision (e)(5) and 54957.5 require public agencies to include with the agenda materials litigation threats to be discussed in closed session.”

Although the Court found the City to be in violation of its Brown Act obligations by failing to include the electronic record of the threatened litigation in its City Council agenda packet, to be available upon request, the Court held that the City’s approval of the Applicants’ project was not null and void since there was no showing of prejudice.

We encourage local agencies with questions regarding Brown Act compliance when preparing closed session agenda items to speak with its legal counsel or any of the attorneys listed above.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.