Page 38 - BrownActHandbook

In Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360, the
court held that the contemporaneous record of a threat of
litigation must be included in the agenda package. Otherwise,
the court surmised, the record is not available for public
inspection as required. The court expressed concern that
without including the record as part of the agenda package, the
record becomes “illusory” because an interested person would
not know what question to ask. This ruling is of some concern
because a written threat of litigation or contemporaneous
record are not always provided to the legislative body, with
legal counsel often presenting a verbal summary or identifying
the threat in a confidential report. One way to avoid running
afoul of this requirement is to at a minimum identify the threat
of litigation and the availability of the record as part of the
closed session agenda description. That way the record is no
longer “illusory.” Language has been added to Appendix 4,
Closed Session Agenda Descriptions, as a reminder of this
requirement. Agency legal counsel should be consulted if there
is any doubt about this requirement.

Written communications that are privileged and not subject to disclosure pursuant
to the California Public Records Act need not be disclosed when describing “facts and
circumstances.”

(Government Code § 54956.9(f).)

For the purposes of these situations, significant exposure to officers or employees
of the agency, whether or not arising from within the course and scope of office or employment,
is deemed significant exposure for the agency.

(Government Code § 54956.9(h).)

(4) Exclusion of Legislative Body Members. A member of the
legislative body may be excluded from a closed session meeting
when the member is a party or potential party to litigation against
the agency and the agency is considering that litigation.

(DeGrassi v. City of Glendora (2000) 207 F.3d 636.)

(5) Settlement Meetings. Settlement meetings with adverse parties
and an outside mediator to pending litigation may not be held in
closed session. Such meetings extend beyond the receipt of advice
from legal counsel.

(Page v. MiraCosta Community College District (2009) 180 Cal.App.4th 471.)

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