Court Holds Mistaken Agenda Reference Does Not Prevent Holding of Closed Session
by Derek P. Cole on July 27, 2015
posted in Meetings, Recent Court Decisions,
What happens when a meeting agenda refers to the wrong legal authority for a closed-session item an agency considers? If it’s clear to the public what action the agency may take, there is no Brown Act violation. According to a recent court opinion, which dismissed a lawsuit as “hypertechnical,” a mistaken code reference used to describe a closed-session item does not prevent the agency from acting. (Castaic Lake Water Agency v. Newhall County Water District, published July 22, 2015.)
Brown Act Agenda Requirements
The Ralph M. Brown Act, or “Brown Act,” is the flagship State law for local government. As part of its overall scheme for ensuring open and transparent government, the Act requires that public-meeting agendas contain a concise, but accurate, description of each item of business an agency considers. The Act also allows agencies to meet in closed sessions—that is, outside the public’s presence—to consider a limited number of matters including the receipt of legal advice regarding agency litigation. But when agencies meet in closed session, their agendas still must properly describe the business items to be considered.
The Lawsuit and the Court’s Decision
The recently decided case is one of many lawsuits that relate to development of the controversial Newhall Ranch in Northern Los Angeles County. In 2013, the Castaic Lake Water Agency placed an item on its Board of Directors agenda to consider suing the Newhall County Water District. The agenda description for this closed-session item generally conformed to Brown Act requirements: it made clear the Board would be meeting with its legal counsel to consider the initiation of litigation. But the description referenced subdivision (c) of Government Code section 54956.9 as the authority for holding the closed session rather than the correct authority, subdivision (d) of that section. (The former authorizes closed sessions for existing litigation whereas the latter allows closed sessions to consider initiation of new litigation.)
The court gave short shrift to the plaintiff’s claim that this mistaken reference violated the Brown Act. Noting the text of the agenda description had correctly advised the public the Board would be meeting to consider initiating litigation, the court chided the plaintiffs for elevating “form over substance.” Because the Act requires only “substantial compliance” with agenda requirements, the court framed the question as whether the mistaken code reference might have misled or confused the public. Finding no possibility that had occurred, the court easily rejected the plaintiff’s claim.
A Helpful Precedent for Local Agencies
Oddly, a public agency brought this case. Whether or not this agency’s own agendas had achieved the level of perfection it advocated, its loss in court has provided helpful precedent for local agencies. The court’s decision confirms that “hypertechnical” violations of the Brown Act will not undo actions agencies take as to the affected agenda items. Agencies thus need not worry that trivial errors in agenda descriptions will unravel important decisions made in their meetings.
The court’s ruling should not, however, be read to excuse all errors in agenda descriptions. Critical to the court’s ruling was its finding that the public could not have been misled or confused by the reference to an incorrect subdivision of one code section. Agencies should interpret the case to mean that only minor mistakes such as misspellings, typographical errors, or (as in the case) incorrect code references are likely to be excused. When there is any possibility that a mistake in a description may mislead the public, the best action is still to continue the item until it can be correctly agendized. (And when the mistake is pointed out after the action is taken, the Brown Act’s “cure” procedure should be considered.)
