Ralph M. Brown Act:
Closed Sessions for Consultation on Pending Litigation

 

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Q: When may a body go into closed session on "pending litigation?"

Q: Is the closed session literally confined to litigation? What about other attorney-client confidences?

Q: What does the Act mean by "pending" litigation?

Q: What does the Act mean by "litigation?"

Q: Can a body hold a closed litigation session by itself, without conferring with the attorney?

Q: Is the governing body of a local agency the only body that can hold a closed session on litigation?

Q: Is a closed session lawful to confer about litigation that might result from an action not yet taken?

Q: Can a body meet in closed session with the opposing party or its attorney to discuss settlement?

Q: How should litigation sessions be listed on the meeting agenda?

Q: If the body plans to confer on a threat of litigation against it, is the public entitled to know about that threat?

Q: If the body takes action in closed session, how and when must it be disclosed?

Q: What if any public records could be checked to shed light on the topic of a closed litigation session?

 

 

 

Q: When may a body go into closed session on "pending litigation?"

A: A body may use a closed session to consult with its attorney on a specific threat of litigation against it, on the advisability of taking legal action itself, or on the progress of court action or settlement negotiations in an ongoing case. The basic rules are:

Government Code § 54956.9. Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a 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.

For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter. For purposes of thissection, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.

For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:

(a) Litigation, to which the local agency is a party, has been initiated formally.

(b) (1) 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.

(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision.

For purposes of paragraphs (1) and (2), "existing facts and circumstances" shall consist only of one of the following:

(A) Facts and circumstances that might result in litigation against the agency but which the agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.

(B) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.

(C) The receipt of a claim pursuant to the Tort Claims Act or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5.

(D) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.

(E) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicly disclosed.

(F) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing at Section 6250) of Division 7,Title 1).

(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

A local agency shall be considered to be a "party" or to have a "significant exposure to litigation" if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment.

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Q: Is the closed session literally confined to litigation? What about other attorney-client confidences?

A: The privilege for confidential-attorney client communications is normally (outside the Brown Act) not confined to consultations on litigation. In general it can apply to any subject matter on which the interaction between attorney and client is intended to be confidential, including the provision of legal advice on contracts, guidance on the need for legislation and so forth. And even a legislative body may receive completely confidential information or advice from its attorney in the form of a written memo, for example (Roberts v. City of Palmdale, 5 Cal.4th 363 (1993)). But when a legislative body chooses to confer personally with its attorney, the only subject matter permitted for a closed session is "pending litigation."

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Q: What does the Act mean by "pending" litigation?

A: For purposes of this type of closed session, "pending" means either actually filed in court, or threatened by "existing facts and circumstances" or otherwise made a real possibility (for the body to sue someone else, that is) by "existing facts and circumstances." If the facts and circumstances reflect a threat of litigation against the agency, they must fall into one of the categories in (b) (2) (A) through (E) -(see Disclosure of Threats under Suggested Agenda Listings below)

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Q: What does the Act mean by "litigation?"

A: This term refers not only to cases in a court as such, but any proceedings in which the agency is represented by counsel, which involve formal rules of evidence and procedure, and which will result in a determinationof the rights of specific adverse parties represented in the matter, as opposed to a general law or regulation affecting the rights of the public as a whole.

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Q: Can a body hold a closed litigation session by itself, without conferring with the attorney?

A: No. The closed session is for a communication between attorney and client; the body may not discuss litigation privately under this heading unless the attorney is present, at least by conference call.

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Q: Is the governing body of a local agency the only body that can hold a closed session on litigation?

A: The Attorney General has ruled that while in general a body may not use a closed session to discuss cases to which it is not and would not be a party, the governing body of the agency may not be the only legislative body entitled to a closed session. For example, a county's airport advisory committee -- not just the board of supervisors -- might hold a closed session with its attorney to discuss litigation involving the county airport (67 Ops. Cal. Atty. Gen. 111 (1984)). On the other hand, if the specialized body opts to discuss the litigation openly, that fact does not preclude the other body from taking its discussion in to closed session (69 Ops. Cal. Atty. Gen. 232 (1986)).

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Q: Is a closed session lawful to confer about litigation that might result from an action not yet taken?

A: The attorney's advice to a body as to the legality or legal implications of a proposed or future action is not appropriate for a closed session, because the public is entitled to know what this advice is in order to evaluate the performance of the body (36 Ops. Cal. Atty. Gen. 175 (1960)). The mere possibility that a body's action might be challenged in court does not suffice as a defined threat that would justify discussing the proposed action in closed session, since that rationale would justify a "litigation" session on any matter (71 Ops. Cal. Atty. Gen. 96 (1988)).

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Q: Can a body meet in closed session with the opposing party or its attorney to discuss settlement?

A: No. A body may not use a closed session to meet directly with the adverse party or its representative to negotiate a settlement; the negotiation must be handled by its attorney in a separate setting (62 Ops. Cal. Atty. Gen. 150 (1979)). A body may, however, use a closed litigation session not only to confer with counsel about a settlement but to deliberate and approve the settlement or a settlement offer (75 Ops. Cal. Atty. Gen. 14 (1992)).

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Q: How should litigation sessions be listed on the meeting agenda?

A: The Brown Act provides, in Government Code Section 54954.5:

For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format.

(c) With respect to every item of business to be discussed in closed session pursuant to Government Code § 54956.9:

CONFERENCE WITH LEGAL COUNSEL: EXISTING LITIGATION

Name of case: (Specify by reference to claimant's name, names of parties, case or claim numbers)

or

Case name unspecified: (Specify whether disclosure would jeopardize service of process or existing settlement negotiations)

 

CONFERENCE WITH LEGAL COUNSEL: ANTICIPATED LITIGATION

Significant exposure to litigation pursuant to subdivision (b) of Government Code § 54956.9:

(Specify number of potential cases)

Initiation of litigation pursuant to subdivision (c) of Government Code § 54956.9: (Specify number of potential cases)

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Q: If the body plans to confer on a threat of litigation against it, is the public entitled to know about that threat?

A: Yes. When a closed session is scheduled under this heading -- significant exposure to litigation -- unless the facts and circumstances creating the threat are not yet known to the likely plaintiffs, they must be accessible to the public. The result is a significant addition to the general agenda listing requirements. As noted on page 22 of the Attorney General's guide, The Brown Act: Open Meetings for Local Legislative Bodies,under Government Code § 54956.9 (b) (3) there are requirements for supplementary oral or written announcements, in effect, in four such situations:

• If there has been no kind of commmunication yet from the likely plaintiffs but the agency is aware of something that is likely to prompt a litigation threat - some accident, disaster, incident or transaction such as a contract dispute -- "the facts must be publicly stated on the agenda or announced" prior to the closed session.
• If a claim or some other written threat of litigation has been received, the document is a public record and "reference to the claim or communication must be publicly stated on the agenda or announced" prior to the closed session.
• When the closed session is triggered by a litigation threat made in an open and public meeting, "reference to the statement must be publicly stated on the agenda or announced" prior to the closed session.
• When an oral threat of litigation is made outside a meeting, it may not be made the basis of a closed session unless the official who became aware of it makes a memo explaining what was said. The memo is a the document is a public record and "reference to the claim or communication must be publicly stated on the agenda or announced" prior to the closed session.

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Q: If the body takes action in closed session, how and when must it be disclosed?

A. The Brown Act states in Government Code Section 54957.1:

(a) 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:

(2) Approval given to the body's legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

(3) Approval given to the body's legal counsel of a settlement of pending litigation, as defined in Section 54956.9, at any stage prior to or during a judicial or quasi-judicial proceeding shall be reported after the settlement is final, as specified below:

(A) If the body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held.

(B) If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement.

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Q: What if any public records could be checked to shed light on the topic of a closed session?

A: While the minutes of closed sessions are exempt from disclosure under the California Public Records Act (CPRA), there are certain records related to litigation sessions that are not:

• Pre-litigation Claims: Claims submitted by potential litigants under the Tort Claims Act, or other written communications threatening litigation upon which a closed session will be held, are accessible at any time after submission, but no later than the point that they are distributed to the body for action at a meeting
• Threat Memoranda: If a closed session is called to discuss a specific litigation threat other than one conveyed in writing or uttered in an open and public meeting, the threat must be summarized in a memorandum which is likewise available no later than when it is distributed to the body. This kind of memorandum need not name a person who is claiming to be the victim of sexual misconduct -or the person making the threat on his or her behalf -nor need it identify a public employee who is accused of breaking the law or violating the threatening party's rights.
• Settlement Agreements and Related Records: If the body agrees to a settlement of litigation, the text of the settlement agreement becomes availiable once the settlement is disclosed - either immediately if the body's acceptance seals the agreement, or after approval by the adverse party or the court if not. Likewise available once settlement is final are all litigation- related records that are not confidential communications between the agency and its own attorney and not subject to some other CPRA exemption, for example the paper trail of settlement offers, counter-offers and other communications flowing back and forth between the agency and the adverse party prior to settlement.

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