Last week Chico City Council member, Addison Winslow, was accused by the city attorney of violating the Brown Act by disclosing closed session information.
NSPR’s Erik Adams spoke with Shaila Nathu, staff attorney of the American Civil Liberties Union of Northern California, about what the Brown Act is and who it aims to protect.
On the Brown Act
The Brown Act was founded in the 1950s. It was a reaction to legislative bodies meeting in secret without public participation. Basically, the Brown Act is the public's way of holding our public officials accountable.
On how the Brown Act serves the public
The general rule is that the meetings of legislative bodies, like city councils, school boards, etc., must be open and public. They must be properly noticed. That means that all items that a legislative body, like the city council, discusses or takes action on must be on an agenda that's posted 72 hours before the meeting takes place. All members of the public must be permitted to attend the meeting. But there are some exceptions to the general rule that the Brown Act's meetings must be open and public. A legislative body can go into a closed session to discuss a topic.
On how it serves the people who are representing the public
Its goal is not to serve the officials that represent us. The goal is to protect the public against secret meetings or decisions made without their participation. It's intended to put restrictions on and requirements on the bodies that represent us. It's not intended to put any restrictions on members of the public.
On rules and regulations regarding closed session meetings with the Brown Act
The most common closed session exceptions used are pending or anticipated litigation and a conference for real property negotiators.
With regard to pending or anticipated litigation, say a city receives a threat of litigation or is the party to a lawsuit, it can go into closed session to receive advice from or confer with its legal counsel on that litigation.
That said, if that litigation involves a policy decision, there's case law that says that they can't use the threat of litigation or the actual suit as a vehicle to go into closed session to discuss a policy decision or question that would otherwise be subject to that general rule, that meeting subject to the Brown Act are open and public.
On why some issues or conversations in closed sessions are kept from the public
With regard to pending or anticipated litigation, to an extent, a city or other local agency is a regular party in a lawsuit, right? They have a litigation strategy. They have considerations they don't want to share with the other side. There is some interest in preserving the city or other local agencies' ability to preserve its position.
And the statute specifically says that. It says the city can meet in closed session to receive advice from or confer with its legal counsel if discussion in open session would prejudice its position in litigation. It's all about maintaining the position. Even though the city is still a local agency that is beholden to the public, lawyer-client privilege still exists.
