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    A guide to your rights as a citizen

    Cracking open the rules on closed sessions

    Pub­lic agen­cies are al­lowed to meet in private to dis­cuss is­sues such as lit­ig­a­tion, real prop­erty pur­chases and labor ne­go­ti­ations. But they must dis­close the top­ic in ad­vance and make fi­nal de­cisions pub­lic.

    Of­ten, some of the most sens­it­ive is­sues in loc­al gov­ern­ment are dis­cussed be­hind closed doors in what is known as closed ses­sion. But the agency has to re­port ac­tion from such meet­ings, and those who want to know what happened be­hind the closed doors have rights.

    Which matters can be discussed in a closed session meeting?

    The Brown Act strictly lim­its the types of is­sues that qual­i­fy for a closed ses­sion meet­ing. The most com­mon in­volve lit­ig­a­tion, the pur­chase or sale of real prop­erty, per­son­nel eval­u­ations and labor ne­go­ti­ations. “The idea here is that the pub­lic is bet­ter off al­low­ing this con­ver­sa­tion to be out of the pub­lic view,” said Tom New­ton, gen­er­al coun­sel for the Cali­for­nia News­pa­per Pub­lish­ers Assn. New­ton ad­ded that al­though a city coun­cil or le­gis­lat­ive body may dis­cuss per­son­nel mat­ters in closed ses­sion, any de­cisions per­tain­ing to em­ploy­ee com­pens­a­tion must be ad­dressed and ap­proved in open ses­sion.

    Who can participate in a closed session?

    Meet­ings can­not be “semi-private,” New­ton said. A coun­cil can­not se­lect cer­tain pub­lic parties to par­ti­cip­ate while ex­clud­ing oth­ers. However, out­side con­sult­ants work­ing for the city or agency are per­mit­ted to par­ti­cip­ate, as well as mem­bers of an agency’s staff. “You can­not have people in the closed ses­sion who are not mem­bers of your team,” said Mi­chael Jen­kins, city at­tor­ney for Dia­mond Bar, Her­mosa Beach, Rolling Hills and West Hol­ly­wood, and pres­id­ent of the City At­tor­neys’ De­part­ment in the League of Cali­for­nia Cit­ies.

    How can I keep track of decisions made in a closed session?

    All items dis­cussed in closed ses­sion must be lis­ted on an agenda be­fore the meet­ing, and the list­ing must in­clude the Cali­for­nia gov­ern­ment code that the agency is cit­ing to jus­ti­fy the closed ses­sion. “The first place to look is on the agenda of the meet­ing; those dis­clos­ures must be made,” Jen­kins said. The agenda of­ten provides ba­sic in­form­a­tion such as the loc­a­tion of a prop­erty the city is con­sid­er­ing for pur­chase, or the title of a leg­al case in which the city is in­volved. And after a closed ses­sion, the agency must an­nounce any fi­nal de­cisions it made dur­ing the ses­sion. In some cases, the coun­cil will wait un­til the start of its next meet­ing to make this an­nounce­ment, New­ton said.

    Doc­u­ments used in closed ses­sion may or may not be avail­able through a pub­lic re­cords re­quest. Jen­kins said many memos pre­pared by at­tor­neys be­fore the closed ses­sions and oth­er re­ports used in the meet­ings would be ex­empt from pub­lic re­cords laws be­cause their dis­clos­ure could com­prom­ise the agency’s stand­ing in lit­ig­a­tion or ne­go­ti­ation. But any doc­u­ment ex­ecut­ing a fi­nal de­cision — such as a leg­al set­tle­ment or a pur­chase agree­ment — is a pub­lic re­cord, he said.

    Are there any red flags I can look out for?

    The most ba­sic re­quire­ment is that the agency re­ports its closed ses­sions cor­rectly and cites the cor­rect gov­ern­ment code, the at­tor­neys said. “If you see a body go­ing in­to a closed ses­sion and there’s no in­dic­a­tion as to why — that’s an im­me­di­ate prob­lem,” Jen­kins said. Moreover, mem­bers of the pub­lic must be giv­en an op­por­tun­ity to speak be­fore the closed ses­sion be­gins, New­ton said.

    An­oth­er way for cit­izens to mon­it­or closed ses­sion meet­ings is to pay at­ten­tion to what a coun­cil re­ports after each ses­sion, New­ton said. “If there are a lot of closed ses­sions without any ac­tion re­por­ted out, that would be a red flag,” he said.

    Both at­tor­neys sug­ges­ted that cit­izens keep an eye out for per­son­nel eval­u­ations con­duc­ted in closed ses­sions. Jen­kins said fre­quent or on­go­ing eval­u­ation of a top staff mem­ber, such as a city man­ager, would be un­usu­al. New­ton said that any time a body moves to make an ap­point­ment or to hire a new em­ploy­ee, there must be a pub­lic dis­cus­sion of that per­son’s com­pens­a­tion. “There has to be an open and pub­lic dis­cus­sion about com­pens­a­tion,” he said.

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