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EDITOR’S NOTE: 

The Daily Planet has taken the unusual step of forwarding J. Stacey Sullivan’s response to Terry Francke of Californians Aware back to him for comment before publication, because we believe that their lively dialog is central to the crucia l decisions which have been placed on the agenda for the Berkeley City Council’s hastily scheduled closed meeting at 9 o’clock tonight (Tuesday). For too long in Berkeley, the Brown Act’s narrowly drawn exemptions to disclosure requirements have been stre tched to the breaking point so that city officials can keep bad deals a secret from the voting public. Before the current elected and appointed officials bargain away the city’s right to receive fair recompense for services rendered and to control its own planning for areas near campus, and before the city aborts its lawsuit against UC’s completely inadequate environmental study of its Long Range Development Plan, the public should have an extensive opportunity to study the proposed deal and comment on it. The reason democratic decision-making, in the full light of day, is still the best system is that it prevents horrendous mistakes like those which got San Diego in the soup. The City Council should appreciate the good advice it can get from its sophisticated citizens, instead of continuing the smoke-filled room school of public policy which has caused debacles like buying a toxic waste site from UC for the Harrison skate park. The Planet will continue to demand full disclosure in the public interest.  

Editors, Daily Planet: 

Speaking as an attorney, a Berkeley resident, and someone with extensive experience with the legislative process and the Brown Act, I would like to point out a basic error in Terry Francke’s letter in the May 13-16 edition. What M r. Francke erroneously uses as legal authority for his disagreement with Antonio Rossman is what is known as “findings and declarations” language, with which the Legislature makes general statements about the need for and intent of a statute. This languag e can be cited by a judge as persuasive or indicative of legislative intent, but it does not have the same force of law as the substantive provisions of the statute. In the case of the Brown Act, two of those substantive provisions authorize closed meetin gs to address pending litigation and settlement agreements (Gov’t Code Secs. 54956.9 and 54957.1(a)(3)). As Mr. Rossman correctly states, a breach of confidentiality by either party in this context could not only blow up the negotiations but expose the ci ty to additional liability. What Mr. Francke refers to as “the Rossman twist” is in fact a straightforward and succinct statement by an eminent legal authority of the law as applied to the facts. If Mr. Francke has a problem with the law, he is free to try to change it. 

J. Stacey Sullivan 

Ms. Sullivan, 

You state in your letter to the Berkeley Daily Planet, “In the case of the Brown Act, two of those subtantive provisions authorize closed meetings to address pending litigation and settlement agreements (government code sections. 54956.9 and 54957.1(a)(3)). As Mr. Rossman correctly states, a breach of confidentiality by either party in this context could not only blow up the negotiations but expose the city to additional liability.” 

1. The closed session authorities you cite allow the local body to confer in closed session with its own attorney—not with the adversary or its attorney. 

2. There is no authority in California law under which a party in litigation with a public agency may prevent the agency from making disclosures to the public of information known to both parties. 

3. Absent a protective order, there is no authority creating liability for a local body that chooses to disclose to the public the progress of settlement negotiations or indeed anything else it has learned from the adverse party in litigation or in negotiations to settle litigation. 

4. Accordingly while there is a confidentiality of communication between each party and its own attorney, the fact that settlement negotiations are under way does not create a duty of “confidentiality” such that the government may not inform the community of what it knows. 

If you can find any statute or case to the contrary, I’d be glad to learn of it. Or if you can point to even a single case of actual liability created by an alleged breach of confidentiality illustrating your point, even one not reaching case law, I’d be glad to hear of it, as I’m sure the Daily Planet’s readership would as well. 

Keeping the public in the dark about the progress of litigation or settlement negotiations (typically matched by comparable secrecy surrounding real property and development deals and bargaining with public employee unions) is not only not legally compelled but ultimately dangerous to sound public admini stration. That at least has been the experience of California’s most profoundly troubled major city, San Diego. Its city council early this year adopted, as part of a curative “Right to Know” ordinance, provisions requiring a certain procedure before ever y closed session on litigation, property negotiations or employee unit bargaining: 

1. “In open session, before public comment or City Council discussion of any closed session item, the city attorney or appropriate staff shall provide an oral update or progress report on matters under litigation, real property negotiations, or employee unit bargaining.” 

2. “The public shall have the opportunity to directly address the City Council on any closed session item on the agenda, prior to City Council questions and discussion on the item and after the oral report by the city attorney or appropriate staff.” 

3. “At the regular or special meeting of the City Council, the mayor and councilmembers shall have the opportunity to discuss the basis for convening into closed session, ask questions, and respond to questions from the public.” 

Berkeley officials have talked about a sunshine ordinance for years now, but somehow never got quite motivated enough to proceed with one. As San Diego shows, however, being as open as possible with the community about expensive and otherwise consequential lawsuits, land deals and bargained employee benefit packages is not only not legally prohibited or fraught with liability but entirely sensible and prudent policy for officials who respect their constituents enough to treat them like adults with, yes, a right to know how the city’s being run. 

Cordially, 

Terry Francke 

General Counsel 

Californians Aware 

Carmichaele