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HomeMy WebLinkAbout05. Information on Closed Sessions5. 555 12`h Street, Suite 1500 Oakland, California 94607 tel (510) 808 -2000 fax (510) 444 -1108 www.meyersnave.com meyers nave December 2, 2015 Board of Directors Mr. Roger Bailey CENTRAL CONTRA COSTA SANITARY DISTRICT 5019 Imhoff Place Martinez, CA 94553 Re: Closed Session Minutes Dear Board Members and Mr. Bailey: Kenton L. Alm Attorney at Law Direct Dial: (510) 808 -2081 kalm @meyersnave.com Attached is a memo of October 16, 2015, which I believe is responsive to the question presented at the workshop dealing with reports from closed session. Separately attached is a memo from Elaine with regard to whether District secretaries or city clerks typically attend closed sessions and how closed session minutes are retained. With regard to announcements of actions taken following closed sessions, the short answer is that most final decisions must be announced in open session and the votes for and against the final decision shall be provided. As the memo from Elaine notes, statutes provide the authority for a district secretary or other designated person to attend closed sessions for the purpose of maintaining confidential minutes. Her memo also notes that a number of agencies do not have the district secretary attend the closed sessions. Although there is no statutory requirement to have a minute keeper present, I believe the better practice is to have a designated person present in the closed session to take closed session minutes in a confidential journal or to be recorded in a confidential District file. The attorney, a general manager, or a person such as the district secretary may be delegated that responsibility. The minutes should be very brief action minutes designed to only record Board interim actions and directions taken along with final actions and a record of the votes. It is both my preference that closed session minutes in fact be taken and that the person charged with presentation of the closed session materials not typically be the person designated to take and keep the minutes. Moreover, I feel the permanent record of the Board of Directors Mr. Roger Bailey CENTRAL CONTRA COSTA SANITARY DISTRICT December 2, 2015 Page 2 minutes, whether in a journal or a private computer file, should be kept by a District employee and not by myself or other closed session presenters, such as the District's labor negotiator. I certainly will make myself available to discuss these issues with Board members individually or in a more public setting. Very truly yours, /s /Kenton L. Alm Kenton L. Alm Attorney at Law KLA: ms Attachments (2) 2558271.1 55512`" Street, Suite 1500 Oakland, California 94607 tel (510) 808 -2000 fax (510) 444 -1108 www.meyersnave.com meyers nave Kenton L. Alm Attorney at Law Direct Dial: (510) 808 -2081 kalm @meyersnave.com DATE: October 16, 2015 TO: Board of Directors Central Contra Costa Sanitary District FROM: Kenton L. Alm, District Counsel BY: Laura McKinney, Attorney RE- Reporting Requirements after Action Taken during Closed Sessions The Central Contra Costa Sanitary District Board (Board) has requested that it be provided with a memorandum setting forth its obligations under the Brown Act (Gov't Code' § 54950 et seq.) to report actions taken during a closed session. A Roll Call Vote Must be Reported out after a Closed Session on Reportable Actions Following a closed session, section 54957.1(a) requires that the Board must report particular actions "taken in closed session and the vote or abstention on that action of every member present." The report may be made either orally or in writing. (§ 54957.1(b).) The Plain Language of the Statute The plain language of section 54957.1(a) indicates that a tally of the votes in favor, in opposition and in abstention (referred to herein as a "tally ") is not sufficient and, instead, "the vote or abstention ... of every member present" must be reported. (Emphasis supplied.) In other words, it requires that a report of the votes attributable to each Board member present at the closed session (referred to herein as a "roll call vote ") be publicly announced on reportable actions. Legislative History Although the plain language of this provision is fairly unambiguous, the legislative history further supports this interpretation. The Attorney General has set forth the origin of this provision in a 1980 opinion. It states: [S]ection 54957.1 was added as part of Senate Bill No. 1, 1975 Regular Session. As initially proposed, the substance of the amendment was initially proposed as an addition to the California Public Records Act, as section 6254.5, subdivision (b) Board of Directors October 16, 2015 Page 2 thereof. Thus, the April 16, 1975, amendment to the bill added proposed subdivision (b) as follows: `(b) The legislative body of any state or local agency shall, at each meeting which is open and public pursuant to the provisions of this chapter, read the minutes of any meeting held since the preceding open and public meeting of such agency.' The April 24, 1975, amendment to Senate Bill No. 1 modified such proposal to read: `(b) The legislative body of any state or local agency shall publicly report any action taken, and the roll call vote thereon, in any prior executive session.' Thus, at this juncture, the proposed law would have required the reporting of any action taken at an executive session. Thereafter, on May 5, 1975, Senate Bill No. 1 was amended so as to transfer the substance of proposed section 6254.5(b) to proposed section 54957. 1, as subdivision (b) thereof, but amended to state: `(b) The legislative body of any local agency shall publicly report at a subsequent public meeting any action taken, and the roll call vote thereon, to appoint, employ, or dismiss a public employee arising out of any executive session of the legislative body.' Proposed subdivision (a) of section 54957.1 was subsequently deleted from the bill, and it was this wording, which was enacted as section 54957.1. 63 Cal. Op. Att'y Gen. 215 (1980) Therefore, from its inception, section 54957.1 required public reporting of a roll call vote and not just a tally. It appears that this version of section 54957.1 remained in effect until 1994 when AB 1426 went into effect. AB 1426 significantly expanded the requirements to report out actions taken in closed session. It amended section 54957.1 by adding subdivision(a) to state, "The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention of every member present thereon, as follows:" The Legislative Council's Digest described the proposed amendments in this manner: "The Ralph M. Brown Act requires the legislative body to publicly report closed- session actions taken and roll call votes to appoint, employ, or dismiss a public employee. This bill would instead require the legislative body to publicly report any action taken in closed session and the vote or abstention of every member present on real estate negotiations, litigation and pending litigation issues with specified exceptions, claims for various liability losses, various personnel actions, and certain collective bargaining matters. The bill would prohibit any action for injury to reputation, liberty, or other personal interest by an employee or former employee with respect to whom a disclosure is made by a legislative body in an Board of Directors October 16, 2015 Page 3 effort to comply with these provisions. The bill would prescribe how the reports are to be made and would require a brief statement of the information to be posted, as specified, thereby imposing a state - mandated local program." 1993 Cal. Legis. Serv. Ch. 1136 (A.B. 1426) There is no indication that the 1993 amendments were intended to remove the requirement to report out a roll call vote on reportable closed session actions. Instead, the legislative history indicates that the amendments were intended to expand the requirement that each voting (or abstaining) member's vote was to be reported out with regard to additional closed session actions. This interpretation is further supported by legislative analysis of SB 751 which was passed in 2013 and became law in 2014. It states "[f]or closed meetings and meetings conducted by teleconference, the Brown Act requires local agencies' legislative bodies to report the votes of individual officials. These provisions enable the public to be aware ofhow individual boards members vote when the vote is not taken in the public's presence. State law does not require local agencies to report individual officials' votes that are cast during open meetings. Critics have raised concern that for local agencies with large legislative bodies, the absence of either a roll call vote or a specific tally and report of the votes of each member of a board, it can be difficult to determine who voted for or against a measure when actions are taken. For example, the minutes of a May 17, 2012, meeting of the Association of Bay Area Governments report that a motion received 27 ayes and 5 nays, without listing the votes of individual members. SB 751 -- 4/11/13 -- Page 2 Proposed Law Senate Bill 751 requires local agencies that are both a Metropolitan Planning Organization and a transportation planning agency to publicly report any action taken and to report the individual vote or abstention of each member present." April 25, 2013, Senate Governance and Finance Committee Bill Analysis (S.B. 751). (Emphasis supplied.) It is important to note that SB 751 amended the Brown Act (section 54953) with the exact same language present in section 54957.1 in order to accomplish its stated purpose. Case Law Moreover, the case of Galbiso v. Orosi Pub. Util. Dist. (2010) 182 Cal. App. 4th 652 supports the interpretation that reporting out a tally is insufficient to comply with section 54957.1. In that case, the plaintiff requested that the court issue an order declaring that the agency must report out "what the decision [or] action was, the person who made the motion, the person who seconded the motion, and the persons who voted for and against the motion" after a closed session in order to comply with the Brown Act. (Id. at 671.) The court denied the requested relief finding it "unnecessary" in part because "a legislative body's duties to publicly report any actions taken in closed session and the votes of each member are clearly spelled out in statute." (Id.) (Emphasis supplied .)2 Board of Directors October 16, 2015 Page 4 Thus, the plain language of the statute, its legislative history and applicable case law all support the conclusion that the Board must report the roll call vote made on reportable actions in order to comply with the Brown Act. However, the timing and contents of the report depend on the nature of the closed session as discussed below. Litigation The Board may meet with its legal advisors in closed session to discussion existing litigation, threatened litigation or whether to initiate litigation pursuant to section 54956.9. Reportable Actions The following actions must be reported in open session at the public meeting following the closed session held under section 54956.9: (1) whether or not to appeal a particular detennination in a pending litigation; (2) to enter as an amicus curiae in any form of litigation; (3) to initiate or intervene in an action unless doing so would jeopardize the Board's ability to serve an unserved party or conclude settlement negotiations; or (4) approval of a final settlement. (§ 54957.1(a)(2) and (3).) Real Estate Negotiations The Board may meet with its negotiator to discuss the sale, purchase, exchange or lease of real property in order to discuss price and terms of payment pursuant to section 54956.8. Reportable Actions If the Board approves an agreement in closed session and that approval renders it final, then it must report the approval and the substance of the agreement in the open session at the public meeting following the closed session. (§ 54957. 1 (a)(1)(A).) However, if final approval rests with another party, then it must report the approval and substance of the agreement when it is finally approved. (§ 54957.l(a)(1)(B).) Public Employment The Board may meet in closed session to consider appointment or employment of an a new employee; to evaluate the performance, discipline or dismissal or a current employee 3; or hear complaints or charges brought against a current employee pursuant to Section 54957(b) . The term "employee" includes "an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractor." ( §54957(b)(4).) In order to hold a closed session under this provision, the Board must have the power to appoint, evaluate or dismiss the employee. (Gillespie v. *San Francisco Public Library Commission (1998) 67 Cal.AppAth 1165; 85 Ops. Cal.Atty.Gen. 77 (2002).) "The purposes of the personnel exception are (1) to protect employees from public embarrassment and (2) to permit free and candid discussions of personnel matters by a local Board of Directors October 16, 2015 Page 5 governmental body. This exception should be narrowly construed." (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.AppAth 1424, 1438 citing Tischer v. Los Angeles Unified School Dist. (1999) 70 Cal.AppAth 87, 96.) Reportable Actions The Board must report the following actions at the open session following the closed session: 1) to appoint or employ a new employees; or 2) to dismiss or accept the resignation of, or otherwise affect the employment status of a current employeeb. However, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any. ( §54957.1(a)(5).) If the Board is inclined to negotiate a settlement with an employee it potentially may wish to discharge, the Board could vote to communicate the negative performance evaluation to the employee via a representative or negotiator who would be tasked with developing an acceptable resignation or termination agreement with the employee. The action to direct a negotiator to contact the employee would not require a public session disclosure at that time. If an agreement with the employee is not reached, the Board may go back into Closed Session to consider a dismissal or other action. If a final action to dismiss an employee is now taken that action including the vote of each Board member must be reported in open session. Labor Negotiations The Board may meet in closed session to review its position and instruct its designated representatives on employee salaries and fringe benefits for both union and non -union employees. ( §54957.6.) This may include discussion of the Board's available funds and funding priorities, but only insofar as it relates to providing instructions to the designated representatives. (1d.) Also, for union employees, the Board may discuss any other matter within the statutorily provided scope of representation. (Id.) The Board can also meet in closed session with a state conciliator who has intervened in negotiations under this provision. (1d.) Reportable Actions After a union has accepted or ratified an agreement, the Board must report out final approval of an agreement concluding labor negotiations with the union. ( §54957.1(a)(6).) The report must identify the item approved and the other party or parties to the negotiation. (Id.) Public Security The Board may also meet in closed session with its legal advisors, the police, the Governor, the District Attorney, the Attorney General, a security consultant or a security operations manager to discuss matters posing a threat to the security of public buildings, essential public Board of Directors October 16, 2015 Page 6 services or the public's right of access to services or facilities over which the Board has jurisdiction. ( §54957(a).) Reportable Actions No report is required for action taken during a closed session under this provision. License Applications by Applicant with Criminal Record The Board may also meet in closed session with an applicant who has a criminal record and his/her attorney to discuss whether he /she should be granted a license or license renewal. ( §54956.7) If the Board determines that it should deny the application, then the applicant has an opportunity to withdraw the application and, if they elect to withdraw, then no record of the closed session shall be kept and all matters relating to it are confidential. Reportable Actions If they chose not to withdraw the application, then the Board must take action at the open session after the closed session or at its next public meeting to deny the application. (Id.) Draft Audit from Bureau of State Audits If the Board has received a confidential final draft audit report from the Bureau of State Audits, it may hold a closed session to discuss its response to the report. ( §54956.75.) 2529637.2 Reportable Actions No report is required to be made if an action is taken under this provision. All further code references are to the California Government Code unless specified otherwise. See also Gillespie v. San Francisco Public Library Com. (1998) 67 Cal.AppAth 1165, 1174, where the petitioner claimed the agency violated the Brown Act by failing to announce the names of nominees and the "roll call vote" following a closed session. In discussing the meaning of action taken under this section the court stated: "The plain language of the act and the ordinance makes clear that only a candidate's actual appointment, and not a candidate's nomination, need be reported along with the corresponding roll call vote on the day of the action." (Emphasis added.) "The authority of a legislative body "to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee" ... includes the authority to act on such matters as well." (85 Ops.Cal.Atty.Gen. 77 (2002) citing Board of Directors October 16, 2015 Page 7 Rowen v. Santa Clara Unified School District (1981) 121 Cal.App.3d 231, 236; Lucas v. Board of Trustees (1971) 18 Cal.App.3d 988, 991 -992; and 40 Ops.Cal.Atty.Gen. 4,6 (1962).) In this circumstance, the employee must be given at least 24 hours' notice of the closed session and can elect to have the charges and complaint discussed in an open session rather than a closed session. ( §54957(b)(2).) The report must identify the title of the position, but not all the names of people considered for that position by the Board. (Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.AppAth 1165.) Gillespie also held that action taken under Section 54957(b) "is to be publicly reported at the same meeting at which such action was taken." (Id. at 1174.) Distinguishing a commission's action to nominate rather than appoint a candidate in a closed session, the Court reasoned "[a] plain reading of these statutes compels the conclusion that only actions taken in closed session which immediately affect the employment status of a public official are to be reported the same day. A commission's act of employing, dismissing, trahsfening, or accepting the resignation of a public official has an immediate effect on that official's employment status." (Id. at I I75.)(original emphasis.) The Attorney General has similarly opined that "the actual appointment, employment or dismissal of a public employee should be announced at the next public meeting of a legislative body." (63 Ops.Cal.Atty.Gen. 215 (1980).) However, the Attorney General further opined that other actions taken during the evaluation of an employee in closed session should not be reported out. He reasoned "[i]t is patent that to require a public report on all `action taken' in executive session on `personnel matters' could effectively destroy the `personnel exception.' For example, a report would be required that it had been decided not to dismiss an employee even if the possible dismissal was not a matter of public knowledge. Such an announcement would run completely counter to the purpose of section 54957 with respect to personnel executive sessions." (Id.) (original emphasis.) The Attorney General came to a similar conclusion in 2006 when he opined that "the reporting requirement of section 54957. 1, subdivision (a)(5), does not apply to a legislative body's closed- session rejection of a motion or other proposal to dismiss an employee." (89 Ops.Cal.Atty.Gen. 110 (2006).) He reasoned this provision " imposes a reporting duty only when the legislative body has actually taken action `to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session.' If none of these specified types of `actions' is `taken' during the closed session, there is no duty to report the body's deliberations or the members' votes or abstentions with respect thereto." (Id.) 2529637.2 Central Contra Costa Sanitary District October 26, 2015 TO: ADMINISTRATION COMMITTEE FROM: ELAINE R. BOEHME, SECRETARY OF THE DISTRICT VIA: ROGER S. BAILEY, GENERAL MANAGER KENTON L. ALM, DISTRICT COUNSEL SUBJECT: PREPARATION OF CLOSED SESSION MINUTES In response to questions concerning the requirement to prepare closed session minutes, I reviewed the District Code as well as the California Government Code. The District Code states that the duties of the Secretary of the District include "Produce as appropriate the minutes and official records of Board and committee actions, including those in closed session meetings, with the restriction that minute books recording the topics discussed and decisions made in closed session meetings shall be considered confidential and not subject to disclosure under the California Public Records Act, Government Code 6250 et seq." The California Government Code 54957.2. states that "The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1), and shall be kept confidential. The minute book shall be available only to members of the legislative body or, if a violation of this chapter is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist of a recording of the closed session. " I also surveyed other special districts to see if the District Secretary attends closed session meetings, and whether or not minutes are taken and retained of the closed session. Below are my findings. AGENCY DOES DISTRICT SECRETARY ATTEND CLOSED SESSIONS? ARE CONFIDENTIAL MINUTES TAKEN OF CLOSED SESSION? AC Transit Yes, all except performance evaluations Yes, by Secretary Castro Valley Sanitary District No No Contra Costa Water District No No Delta Diablo No No Dublin San Ramon Services District No No EBMUD No No Mt. View Sanitary District No No Union Sanitary District No No West County Wastewater District No _ No - Notes taken by GM /District Counsel Perhaps surprisingly, most District Secretaries do not attend closed sessions. Only one of the above agencies prepares formal confidential closed session minutes (AC Transit). In discussion with District Counsel, he recalls that the language in the District Code was intended to provide for the designation of a clerk or officer to keep closed session minutes as provided for in Government Code section 54957.2. He acknowledges that this Government Code section makes the attendance of a minute taker and the keeping of closed session minutes optional and not mandatory. He feels that continuing with the present practice of having the District Secretary attend litigation closed sessions, may well be the preferable approach in most circumstances. However, if the Board seeks to minimize those present in closed sessions, neither the District Code provision or the Government Code provision requires attendance in the meeting of the District Secretary. He feels it is advisable to continue preparing brief confidential minutes containing relevant information such as attendees, direction given, votes on final actions taken in order to ensure accurate recollections of actions taken and to have a contemporaneously -made record available in the case of disputes on the Board authorized actions and in the rare event of litigation concerning the appropriateness of a closed session. In order to minimize the number of attendees at closed session meetings, I recommend the following approach: After the closed session, District Counsel will provide relevant information to Secretary of the District (i.e. members present, any votes taken on final actions and specific direction given) who will prepare and retain the brief confidential closed session minutes. As is currently the practice, District Counsel will continue to report out any reportable action in the public portion of the meeting following the closed session. If he is not in attendance (for example, personnel matters or labor negotiations), the Board President will report out any reportable action.