Public Comment

Council’s Closed Session Discussion Violated Brown Act

By Shirley Dean
Thursday July 31, 2008 - 10:14:00 AM

I believe that actions taken by the City Council during its July 24 closed session are in violation of the Brown Act, California’s “sunshine” law. The City Council needs to take action immediately to correct that violation and put in place a procedure that enhances the public’s right to know information vital to their comments regarding subjects to be discussed in closed sessions.  

The City Council met in closed session regarding the lawsuit concerning the University of California’s Student Athlete High Performance Center, one of several SCIP projects. By the 5 p.m. beginning of the meeting, seven members of the council were present. Council Chambers was full with a line of speakers standing in the middle aisle waiting to give public comment. An unknown number of speakers also formed a line outside of the chambers. Some 70 people gave public comment. An unknown number of speakers were denied the opportunity to speak when public comment was cut off and the Council went into closed session at approximately 6:55 p.m.. The council emerged some two hours later and the mayor announced that there weren’t “enough votes to appeal” the court’s decision. No information was provided regarding any votes. In comments after the closed session, the mayor referred to a settlement offer contained in a letter to the council dated July 24 from Vice Chancellor Nathan Brostrom, but did not provide copies to the public or news media. 

While I have several comments regarding the highly questionable decision to hold this meeting in a place that could not accommodate the number of people who wanted to attend, and the conduct of the meeting which cut off waiting speakers, in this article I am addressing only the issue of a violation of the Brown Act and the public’s right to know information that is of grave concern to them. 

The Brown Act requires that following a closed session, the council must announce to the public any action taken and the votes of each of the members of the council regarding that action, even if the action fails.  

The Brown Act defines a disclosable “action taken” as a “collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” 

According to the mayor’s statement at the end of the closed session, the majority’s “collective decision” was a negative one. By any account, taking no action is still an action. The mayor and council had to know, by one way or the other, that no action would be taken, otherwise no such statement at the end of the closed session could have been made. The Brown Act is clear that actions must be reported to the public and as such, must include the “votes” of each individual member of the City Council.  

Additionally, the July 24 letter from Vice Chancellor Brostrom which the council received prior to going into closed session should have been disclosed to the public before it was discussed in closed session. The key decision to be made by the council during the closed session was whether the council should appeal Judge Miller’s decision. Obviously any settlement offers by the opposing party would impact the council’s decision. By not disclosing the letter, the public, deprived of the knowledge of such offer, could not address this key issue.  

The central element of the Brostrom letter is that the settlement offer was “…contingent on the city’s agreement not to file an appeal to the current litigation and not to file any future legal challenge to the Memorial Stadium project.” (Emphasis added.) By anyone’s estimate, the yet-to-be-determined valuation of the stadium and the university’s compliance with Alquist-Priolo is a matter which is more than likely to engender considerable debate. Any settlement or discussion of settlement with this contingency is a matter of enormous public concern. There is no question that the public interest would have been best served if the letter had been disclosed prior to the closed session. This clearly goes to the spirit of the Brown Act. 

I have asked the City Council to take three actions as follows: 

1. The immediate release of a written statement of any and all actions taken by the council during the July 24 closed session, with the yeas, nays, abstentions, or passes of each councilmember present. 

2. A commitment from the city that if any closed session is held between now and the council’s next regular meeting in September, any proposals, whether in written, electronic or oral form, regarding settlement of any lawsuit be presented to the public prior to the council entering into closed session to discuss the matter. 

3. Placement on the agenda of the next regular council meeting the addition of a provision to the council’s rules of procedure codifying the procedure as indicated in no. 2 above. 

No matter what position a member of the public might take regarding the Memorial Stadium, or for that matter, regarding any particular issue, everyone will benefit from the City Council taking the above steps.  


Shirley Dean is a former Berkeley mayor.