Brown Act Requires That Litigation Threat That Prompts Closed Session of City Council Meeting Must Be Disclosed in Agenda Before Meeting: But Failure to Do So Was Not Prejudicial

In Fowler v. City of Lafayette, published February 10, 2020, the First District Court of Appeal, Division 4 affirmed judgment in favor of the defendant city in a lawsuit that contended that a decision affirming construction should be nullified due to an alleged violation of the Ralph M. Brown open-meetings act.  The defendant city's council held multiple open meetings to address an appeal from the property owner's neighbors challenging the planning commission's decision to allow the construction.  During the appeal process, the lawyer for the property owner threatened litigation if the city denied the application for construction. The litigation threat was noted in the "notes" field in the city's application database for the project.  The application database was available for public viewing at the city's planning counter,  provided a member of the public asked a planner for permission.  The threats were not mentioned in the packet of information provided to the public before the council meetings, including the agenda.  The council ultimately denied the appeal.  The trial court ruled that the city's handling of the litigation threat and the closed meetings complied with the Brown Act.

The court of appeal disagreed that the city complied.  Government Code section 54956.9, part of the Brown Act, permits agencies to confer with legal counsel in closed session regarding pending litigation, including where a threat of litigation is made outside of an open meeting on a specific matter within the responsibility of the legislative body.  But the statute also requires that the employee of the agency receiving knowledge of the threat makes a record of the statement before the meeting, and the record is available for public inspection before the meeting.  The court rejected the argument that including the threat in the application database met this requirement.  Instead, when a litigation threat that prompts a closed-session meeting, the agency must include the record of the threat in the agenda packet made available upon request before a meeting.  

The court of appeal further determined that the city's violation of this rule did not require nullification of the city's decision.  Because the denial of the application was based on proceedings in open session, and because the city council held extensive proceedings in open session on the matter, the error concerning the closed sessions did not affect the outcome, or prevent the neighbors from pursuing their appeal.