Opinions differ on legitimacy of executive sessionValley attorney disputes Brown Act violation charge
Despite claims in the recent article "Portola Valley: Town Council ran afoul of open-meeting law, CNPA attorney says," the Town Council did not violate the Brown Act by adding an urgent closed session item to the council agenda.
California Government Code Section 54954.2(b)(2) allows the Town Council to place an item on the agenda even if the item of business did not appear on the posted agenda if two-thirds of the Council members determine that there is a need to take immediate action and that need for action came to the attention of the town subsequent to the agenda being posted. That is exactly what happened at the meeting of March 23.
After the posting of the agenda, information came to the attention of the town related to a real property transaction (an item appropriate for closed session pursuant to Government Code Section 54956.8).
At the beginning of the meeting, the town manager indicated that since the posting of the agenda the town had learned information that could require immediate action related to a real property negotiation. The manager stated the address of the property involved, as reported in the Almanac.
The manager requested a vote of the Council members regarding the need for immediate action to add this closed session item to the agenda, and the Council members voted unanimously. The process the Town Council undertook was legal and in accordance with the letter of the law.
Because the Town Council chose not to take any action and there was nothing to report out of closed session does not mean that the Town Council's action violated the Brown Act. It simply means that after learning all the available information and considering the matter, the Town Council decided it best not to take any action. There was no violation of open meeting law.
Portola Valley Town Attorney
The Almanac responds: Town explanation inadequate
In reporting that the Portola Valley Town Council's urgent executive session March 23 may have violated the Brown Act, the Almanac cited the conclusion drawn by Jim Ewert, legal counsel of the California Newspaper Publishers Association.
He told the Almanac that the Brown Act allows such a closed session if a majority approves the idea, there is a need to take "immediate action," and the need arose after the posting of the regular agenda. Another requirement is that the council report any action taken in the closed session.
But in defending the closed session afterward, Mayor Ted Driscoll said: "I believe I can't comment except to say we took no formal action. It was intended to get the whole council up to date on an issue."
Upon hearing the mayor's response, Mr. Ewert said: Getting the whole council up to date on an issue "presumes or implies that no action was required but that it was an informational session. If you're going to inform somebody, that's not a need for a closed session."
If the entire basis for the urgent executive session was, as Mr. Driscoll said, to "get the council up to date on an issue," we agree that the council did not have adequate grounds to call the session.
The town attorney's explanation for the meeting, given the circumstances, is inadequate. She writes that, after the agenda was posted, "information came to the attention of the town related to a real property transaction (an item appropriate for closed session pursuant to Government Code Section 54956.8)." But according to the nursery owner, the town had not been in contact with him for more than a year, so it seems highly unlikely that the council was prepared to move on "a real property transaction." So what was the urgency?