Election Section

Terry Francke is right about the purpose of the Brown Act, as stated in its preamble: Government Code Section 54950. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. 

On the other hand, J. Stacey Sullivan is wrong when he says: “What Mr. 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 language 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.” 

Mr. Sullivan seems to neglect the following substantive provision of the statute: 54953.7. Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter. This demonstrates that any attempt to use the Brown Act as an excuse for keeping information from the people is indeed turning it on its head. Everything in the Brown Act is a minimal standard of disclosure, not a maximal standard. 

Moreover, Mr. Sullivan seems to be trapped in a trap of his own making here. He describes Antonio Rossman as an eminent legal authority and suggests we should rely on his authority. Mr. Rossman is not an expert in the Brown Act, but he is an expert in land use law, and what he has said about this lawsuit in that regard is relevant. “At the moment, my sense is that the city has the advantage on the merits of the case,” Rossman said (54, Feb. 25). 

Dona Spring has expressed the concern that even with disclosure, the City Council would not be receptive to input from the public. Why? Because its legal advisers have soured it on the strength of its case. But its legal advisers have made a long string of obvious and preposterous legal errors. They have not earned the trust of the public or of the council. Is the legal staff just incompetent, or is something else going on? The legal staff seems to be a Trojan horse of neo-con legal philosophy that has invaded the City of Berkeley. 

The latest faux pas is now there for all the world to see, in the video of the 10 minutes just before the closed session council meeting on May 17 at 9 p.m. In response to questions from Councilmember Worthington and Mayor Bates, the city attorney declares that, in the past, statements made during settlement negotiations were used against the city in litigation and that for that reason the city requested and obtained the notorious “Confidentiality Agreement.” It is well known by all “eminent legal authorities” that the contents of settlement negotiations are strictly inadmissible (Evidence Code Sections 1152 and 1154), so if they were used against the city, it was only because of the incompetence of the city’s attorneys in failing to object to their use. As an excuse for the “Confidentiality Agreement,” the explanation of the city attorney is simply preposterous. 

On a more serious note, one may ask whether a confidentiality agreement is allowed by the Brown Act. J. Stacey Sullivan suggests that it is. He says, “In the case of the Brown Act, two of those substantive provisions authorize closed meetings to address pending litigation and settlement agreements (Government Code Secs. 54956.9 and 54957.1(a)(3)).” The following is the first code section cited by Sullivan: 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. 

But again, disclosure of settlement offers cannot prejudice the position of the local agency in the litigation, because of Evidence Code Sections 1152 and 1154. The implied correlative is that this chapter can be construed to prevent a legislative body from holding a closed session in regard to matters that cannot by their very nature prejudice the position of the local agency in the litigation, such as the reporting of settlement offers and the statements made during settlement negotiations. That this is the correct interpretation is born out by the very next paragraph of the Brown Act: 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. 

The following is the second code section cited by Sullivan: 54957.1.(a)(3)(A) If the legislative 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. 

It is the approval that may be done in closed session and thereafter disclosed. As for the agreement, the requirement is to “identify” the substance of the agreement that was approved. This actually implies that the various settlement offers have already been made public and need only be “identified.” It does not say that the settlement offers can be withheld until one of them is approved – it just does not say that, and one cannot take liberties in that direction, because it is opposed to the overall and consistently applied intent of the Brown Act. 

Conclusion: In Alameda County Superior Court Case No. RG05199505, the “Confidentiality Agreement” pertaining to settlement negotiations is unlawful under the Brown Act. The mayor and City Council are hereby noticed. Please consider the following substantive provision of the Brown Act: 54959. Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.  

It may not be possible to rescind the “Confidentiality Agreement” under Civil Code Section 1689(b)(5), but it is possible and necessary to do immediately under Civil Code Section 1689(b)(6), which read as follows: Civil Code Section 1689 (b) A party to a contract may rescind the contract in the following cases: … (5) If the contract is unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault. (6) If the public interest will be prejudiced by permitting the contract to stand. 

Peter Mutnick is a Berkeley resident.?