Office of the Attorney General

State of California

61 Ops. Cal. Atty. Gen. 220

Opinion No. CV 77-195

May 4, 1978

THE HONORABLE HOWARD L. BERMAN

ASSEMBLYMAN FOR THE 43RD DISTRICT

THE HONORABLE HOWARD L. BERMAN, ASSEMBLYMAN, FOR THE 43RD DISTRICT, has requested the opinion of this office on the following questions concerning a board of police commissioners established by charter in a chartered city which has the power and duty to control and manage the affairs of the police department:

'1. Does the Ralph M. Brown Act apply to the described Board of Police Commissioners?

'2. If the Act does apply, does it permit the Board to go into executive session to hear reports from and issue instructions to the Chief of Police regarding the conduct of confidential police investigations, the deployment of police personnel, the utilization of particular police tactics, and similar matters, the public discussion of which would impair the ability of the police force to effectively carry out its duties?'

The conclusions are:

1. The board of police commissioners is subject to the Ralph M. Brown Act.

2. The Ralph M. Brown Act would not permit the board to go into executive session to conduct its usual business with the chief of police. To sanction an executive session, it would be necessary to fall within one of the express provisions of the Act or be necessary to protect another confidentiality provision of the law such as those which specifically relate to certain public records.

ANALYSIS

The request for the opinion of this office describes the board of police commissioners established by a chartered city as follows:

'A city charter has established a five-member Board of Police Commissioners as the 'head' of its police department. The Board serves as the chief executive of the department. Under the charter, this Board has the legal power and duty to control and manage the affairs of the police department. Included among these is the duty to instruct and direct the Chief of Police in all performances of his duties. The Chief of Police is described in the Charter as the 'chief administrative officer.' All, or virtually all, of the powers and duties vested in the Chief of Police under the charter are subject to the instruction and direction of the Board of Commissioners. Under the charter, the Board of Commissioners can only act as a Board. Individual members of the Board have no power to direct the activities of the Chief of Police or the department.

'. . .

'Given its charter-imposed responsibility to manage, direct and control the activities of the police department, it is necessary that the Board hear reports from and issue instructions to the Chief of Police regarding confidential and sensitive police matters. Some examples of the types of decisions the board may have to make are:

1. Whether to direct the chief to investigate or reinvestigate a particular crime or alleged criminal activity.

2. Whether to direct the deployment of police personnel in a particular locale or in a particular manner to deal with specific existing or anticipated criminal activity.

3. Whether to direct the infiltration of organized crime, youth gangs, etc.

'The Chief regularly makes oral reports to the Board concerning current status of specific criminal activity or investigations relating thereto, including the names of suspected criminals, their locations, activities, and associations as well as the steps the Department has taken, is taking, and plans to take regarding the suspected criminal activity. Such reports may include disclosure to the Board of individuals' criminal records, which records may not lawfully be disclosed publicly.'

On the premise that it would not be within the public interest for the board and the chief of police to conduct their business in sessions open to the public, the opinion of this office is requested (1) as to the applicability of the Ralph M. Brown Act to the board of police commissioners (hereinafter 'the Board') and (2) whether the Board may go into executive sessions with the chief of police '. . . to hear reports from and issue instructions to the chief of police regarding the conduct of confidential police investigations, the deployment of police personnel, the utilization of particular police tactics, and similar matters. . . .'

It is the conclusion of this office that the Ralph M. Brown Act is applicable to the Board, and that unless specifically provided therein the act does not permit the Board and the chief to meet in executive session. However, despite this conclusion, executive sessions of a limited nature could be sanctioned where necessary to maintain the confidentiality of confidential public records, or the confidentiality of matters which will later be memorialized in confidential public records.

1. The Applicability Of The Ralph M. Brown Act.

The Ralph M. Brown Act, Government Code sections 54950 et seq. [FN1] requires that 'legislative bodies' as defined therein, of 'local agencies' as defined therein hold their meetings in sessions which are open to the public. (See, particularly, § 54953.) The act does not define the term 'meetings', but basically applies to any gathering of a quorum of a 'legislative body,' no matter how informal, where business is transacted or discussed. (See, generally, Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41; 43 Ops.Cal.Atty.Gen. 36 (1964); 42 Ops.Cal.Atty.Gen. 61 (1963) 32 Ops.Cal.Atty.Gen. 240 (1958).)

The act is specifically made applicable to chartered cities. Thus, section 54951 provides:

'As used in this chapter, 'local agency' means a . . . city, whether general law or chartered, . . .'

Sections 54952 and 54952.5 define 'legislative body' as follows: [FN2]

'As used in this chapter, 'legislative body' means the governing board, commission, directors or body of a local agency, or any board or commission thereof, and shall include any board, commission, committee, or other body on which officers of a local agency serve in their official capacity as members and which is supported in whole or in part by funds provided by such agency, whether such board, commission, committee or other body is organized and operated by such local agency or by a private corporation.' (Emphasis added).

'As used in this chapter, 'legislative body' also includes, but is not limited to, planning commissions, library boards, recreation commissions, and other permanent boards or commissions of a local agency.'

Thus, a board of police commissioners established by a chartered city would fall clearly within the terms of both sections 54952 and 54952.5 as a 'board or commission thereof' and a 'permanent commission' thereof. Nor does the fact that the Board acts solely or primarily in an 'executive' capacity militate against such a conclusion. Sections 54952 and 54952.5 do not purport to limit their scope to legislative bodies in the true sense of the word. In rejecting contentions that local boards or commissions should be exempted from the Act while acting in a quasi-judicial role, this office has recognized that the Act was not intended to be restricted to boards and commissions insofar as they may be performing legislative functions. In 57 Ops.Cal.Atty.Gen. 189, 191 (1974), wherein we ruled upon certain activities of a county board of education, it was stated: '. . . it is asserted that when deciding a disputed matter of student attendance, the county boards are exercising a quasi-judicial function to which the provisions of the act do not apply. We find no such exception and more importantly neither did the court in the Sacramento Newspaper Guild case, 263 Cal.App.2d at 47 wherein the court held:

'There is nothing in the Brown Act to demarcate a narrower application than the range of governmental functions performed by the agency. Although the Brown Act artificially classifies it as a legislative body, a board of supervisors actually performs legislative, executive and even quasi- judicial functions [citations omitted]. Section 54950 is a deliberate and palpable expression of the act's intended impact. It declares the law's intent that deliberations as well as actions occur openly and publicly. Recognition of deliberations and action as dual components of the collective decision-making process that brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either.'

'Many legislative bodies act, as do county boards of education, in a quasi- judicial capacity in performing many of their functions. They are not, however, exempted from the application of the act for that reason. . . .'

The same reasoning would be applicable to actions taken in an executive capacity. Accordingly, it is concluded that the Board herein under consideration is subject to the provisions of the Ralph M. Brown Act.

2. Permissible Executive Sessions

The Ralph M. Brown Act provides that 'except as otherwise provided' therein, '[a]ll meetings of the legislative body of a local agency shall be open and public.' (§ 54953.)

The act specifies a limited number of permissible executive sessions in sections 54957 and 54957.6. [FN3] Insofar as any of the Board's business with the chief of police might fall within any of these specific exemptions to the open meeting requirements of the act, it could meet with the chief in executive session.

However, the question presented does not generally contemplate such situations. Rather, it contemplates meetings including executive sessions predicated on non-statutory exceptions to the Act.

The only non-statutory exception expressly recognized by California appellate judicial decisions to date is with regard to the ability of a 'legislative body' to meet with its legal adviser within the proper confines of the attorney-client privilege. (See Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41.) However, it is to be emphasized that in its holding in that case, the court reasoned that the Ralph M. Brown Act was not intended to impliedly repeal pre-existing and well established laws relating to confidentiality. As stated by the court, at page 57:

'Evidence of such intent [to repeal the lawyer-client privilege for local boards] is by far too thin. It consists of the open meeting requirement of section 54953 and the declaration of legislative policy in section 54950 (fn. 2, supra). In requiring board members to deliberate and act in public, these do not inexorably embrace the board members in their roles as clients calling upon their attorney for legal advice. In declaring the public's right to be informed, they do not necessarily propel the public's legal adversary into the lawyer-client conference clad in the robes of good citizenship. In recommending the bill which became the Brown Act, the Assembly Interim Committee on Judiciary gave no clue that it had even considered the statutory lawyer-client privilege of public boards. Indeed, the committee professed no attempt to cope with the entire gamut of disclosure problems in local government. [footnote omitted]

'Parallel to the lawyer-client privilege is that of a public officer to refuse disclosure of communications made to him in official confidence when '[d]isclosure of the information is against the public interest. . . .' (Evid. Code, § 1040, subd. (a)(b)(2), replacing former Code Civ. Proc., § 1881, subd. 5; see Jessup v. Superior Court, supra, 151 Cal.App.2d at pp. 107-108.) The interim committee voiced no criticism of the latter privilege, although it too is a possible tool of official secrecy. Neither the Brown Act nor its history supplies undebatable evidence of a legislative intent to supersede the assurance of private legal consultation stemming from the statutory lawyer-client privilege.' (Emphasis added.)

Since the Sacramento Newspaper Guild case was decided, this office has issued a number of formal and informal opinions in which we have held that executive sessions may be held to protect other statutory confidentiality provisions. These were summarized in 58 Ops.Cal.Atty.Gen. 839, 841 (1976) wherein we held that a board of supervisors could meet in secret with a county grand jury pursuant to a grand jury's investigatory powers in order to preserve the confidentiality of the grand jury's proceedings. We stated:

'Subsequent to the decision of the court in Sacramento Newspaper Guild, this office expressed the opinion that The Brown Act was also not intended to repeal other statutory policies insuring the confidentiality of agency deliberations on certain matters. In 51 Ops.Cal.Atty.Gen. 201 (1968), we concluded that the statutory policy assuring the confidentiality of discussions between a local agency and a state labor conciliator was not impliedly repealed by The Brown Act, and executive sessions could be held for such a purpose. Later in an informal letter opinion, we opined that The State Agency Act (Gov. Code §§ 11120-11131), an act similar to The Brown Act, but applicable to meetings of state agencies, did not prohibit a closed door meeting of a state agency for the purpose of hearing an oral presentation of the Department of Justice Organized Crime Unit based on records protected from disclosure by law. Letter to Hon. Robert H. Lawson, Executive Director, California Council on Criminal Justice, Nov. 1, 1972, L.B. 382, p. 151. Our conclusion in both opinions was premised on the reasoning of the court in Sacramento Newspaper Guild. It is our view that the application of the open meeting provisions of The Brown Act to a meeting between a board of supervisors and a grand jury is also governed by principles enunciated by the Court of Appeals in the aforementioned decision.'

However, in situations where there is no independent confidentiality provision which requires secrecy, this office has strictly applied the Ralph M. Brown Act according to its terms. This has been done on the grounds that the Legislature, not this office, should determine when executive sessions are permissible even where there may be strong policy arguments in favor of secret sessions. Thus, in 57 Ops.Cal.Atty.Gen. 209 (1974), this office held that a board of supervisors, which had decided to conduct its 'meet and confer' sessions without a 'designated representative', could not meet in executive session to decide upon its bargaining position despite the fact that had it utilized a 'designated representative', it could have met with him in executive session for the same purpose. Despite strong 'policy' arguments in favor of closed sessions, we reasoned inter alia.

'[L]ong tradition preceding the Brown Act discloses a strong public policy against government conducted in secret and has led this office to conclude, as a matter of general policy, that 'doubtful cases should be resolved in favor of open and public meetings.' Letter to Assemblyman John T. Knox, November 23, 1966, I .L. 66-184, p. 5, L.B. 375, p. 64.

'It is therefore concluded that the instant situation presents a doubtful case which must be resolved against the finding of an implied exception for executive sessions when the local governing body declines to designate a 'meet and confer' representative. Prior case law has permitted implied exceptions only where legal principles codified in the state statutes preceded the Brown Act. No such legal principle is discernible here. Moveover, the legislative history of section 54957.6 incorporated in the Brown Act shows a legislative intent to exclude such executive sessions. These findings combined with the strong public policy against meetings conducted in secret inevitably lead to the above conclusion. . . .' (Id at p. 212.) (Emphasis added.) See also, 57 Ops.Cal.Atty.Gen., supra, 189 at pp. 190-191:

'Exceptions to the act are narrowly construed in order to effectuate the legislative intent as set forth in section 54950. Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal.App.2d 41, 58 (1968). Exceptions other than those set forth in the act exist in order to reconcile the act with other provisions of law if to do so will promote the public interest. . . .'

Applying these principles to the question of meetings between the board and the chief of police, we hold that unless there is some other provision such as a specific or general independent confidentiality provision (e.g., the Public Records Act, §§ 6254 and 6255) upon which to base an executive session, the Board may not meet with the chief of police in private. Section 6254 subdividion (f) regarding police investigations and section 6255, a general codification of the 'official privilege' would appear to be of appreciable aid in this respect. (Cf. letter opinion cited in 58 Ops.Cal.Atty.Gen., supra, 839, 840, to CCCJ, I.L. 72-185.) Likewise, so might the 'official privilege' found in Evidence Code section 1040.

In so concluding we note that the result reached herein may appear harsh. However, the question is whether the Legislature has authorized the board to conduct all its 'sensitive' business with the chief of police in private. In our view it has not. (Cf. Bailey v. Superior Court (1977) 19 Cal.3d 970, 977.) Authority for executive sessions must therefore be found in the explicit terms of the Act, or implied from some other confidentiality provision such as that which attaches to confidential records. Insofar as this may be deemed an inadequate solution, the problem appears to be one for legislative resolution. [FN4]

EVELLE J. YOUNGER

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. All section references are to the Government Code unless otherwise indicated.

FN2. Section 54952.3 also defines 'legislative body' to include certain advisory boards or commissions. Such section is not germane to our inquiry.

FN3. Thus, section 54957 provides in part:

'Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding executive sessions with the Attorney General, district attorney, sheriff, or chief or police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the public's right of access to public services or public facilities, or from holding executive sessions during a regular or special meeting to consider the appointment, employment or dismissal of a public employee or to hear complaints or charges brought against such employee by another person or employee unless such employee requests a public hearing. The legislative body also may exclude from any such public or private meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.' And section 54957.6 provides:

'Notwithstanding any other provision of law, a legislative body of a local agency may hold executive sessions with its designated representatives prior to and during consultations and discussions with representatives of employee organizations regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of employees in order to review its position and instruct its designated representatives.

FN4. The problem may not be as unique as it might appear at first blush. In a letter to this office from the Leaque of California Cities responding to our request for their views on the questions presented herein it is stated:

'It seems worthy of note that the board of police commissioners with the powers described in the opinion request functions not unlike many city councils of smaller cities which have much the same executive authority and responsibilities with respect to their own police chiefs.

Contrast this with the fact that the Legislature has granted only limited authority for legislative bodies to confer in executive sessions with their chief of police regarding the security of public buildings.