First Amendment Coalition » AG Opinions

1. Where a member of a city council or county board of supervisors is appointed to sit as that body’s representative on the governing board of the Coachella Valley Mountains Conservancy, may the appointee disclose to his or her appointing authority or its counsel information received in a closed session of the governing board?

2. Where the director of a state department is a member of the governing board of the Coachella Valley Mountains Conservancy by operation of law and designates an executive staff member to sit in his or her place, may the designee disclose to other department employees or department counsel information received in a closed session of the governing board?

CONCLUSIONS

1. Where a member of a city council or county board of supervisors is appointed to sit as that body’s representative on the governing board of the Coachella Valley Mountains Conservancy, the appointee may not disclose to his or her appointing authority or its counsel information received in a closed session of the governing board.

2. Where the director of a state department is a member of the governing board of the Coachella Valley Mountains Conservancy by operation of law and designates an executive staff member to sit in his or her place, the designee may not disclose to other department employees or department counsel information received in a closed session of the governing board.

ANALYSIS

In 1990, the Legislature created the Coachella Valley Mountains Conservancy (“Conservancy” ) as a state commission within the Resources Agency, charged with acquiring lands and protecting natural resources in and around the Coachella Valley. (Pub. Resources Code, § § 33500-33509.) The Conservancy’s governing board (“Board” ) is composed of 21 members who serve two-year terms. Public Resources Code section 33503 provides:

” (a) The governing board of the conservancy consists of the following 21 voting members:

“(1) The mayor or a member of the city council of each of the Cities of Cathedral City, Desert Hot Springs, Indian Wells, La Quinta, Palm Desert, Palm Springs, and Rancho Mirage, appointed by a majority of the membership of the respective city council of each city.

“(2) The Chairperson of the Tribal Council of the Agua Caliente Band of Cahuilla Indians.

“(3) One member of the Board of Supervisors of the County of Riverside, appointed by a majority of the membership of the board of supervisors.

“(4) Three members chosen from the general public who reside within the conservancy’s territory, one of whom shall be appointed by the Governor, one of whom shall be appointed by the Senate Committee on Rules, and one of whom shall be appointed by the Speaker of the Assembly.

“(5) The Secretary of the Resources Agency.

“(6) The Director of Fish and Game.

“(7) The Executive Director of the Wildlife Conservation Board.

“(8) The Director of Parks and Recreation.

“(9) The Director of Finance.

“(10) The Vice President, Division of Agriculture and Natural Resources, of the University of California.

“(11) The State Director for California of the United States Bureau of Land Management.

“(12) The Regional Forester for the Pacific Southwest Region of the United States Forest Service.

“(13) The Regional Director for the Pacific West Region of the National Park Service.

“(b) Any state or federal official who is a member of the governing board and whose principal office is not within the territory of the conservancy may designate a member of his or her executive staff to vote on his or her behalf and otherwise discharge the duties of the member when the member is not in attendance. Notice of that designation shall be promptly communicated in writing to the chairperson of the conservancy.

“(c) Each city council, the Tribal Council of the Agua Caliente Band of Cahuilla Indians, and the Board of Supervisors of the County of Riverside may appoint an alternate member from its respective entity to attend the governing board meetings and vote on behalf of the appointed member and otherwise discharge the duties of the member when the member is not in attendance. Notice of the designation shall be promptly communicated in writing to the chairperson of the conservancy.”

The Board’s meetings are subject to the requirements of the Bagley-Keene Open Meeting Act (Gov. Code, § § 11120-11132; “Act” ). (Pub. Resources Code, § 33509, subd. (a).)[FOOTNOTE 1] The Act generally requires that all meetings of state bodies be open to the public (§ 11123, subd. (a)), with closed sessions allowed in limited circumstances (§ 11126). For example, a closed session may be held by a state body “to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning these matters would prejudice the position of the state body in the litigation” (§ 11126, subd. (e)(1)) or to meet “with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the state body to give instructions to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease” (§ 11126, subd. (c)(7)(A)).

The two questions presented for resolution concern the holding of a closed session by the Board to discuss pending litigation or the purchase of property. May a member of a city council or county board of supervisors appointed to sit as that body’s representative on the Board disclose to his or her appointing authority or its counsel information received in a closed session of the Board? Where the director of a state department is a member of the Board and has designated an executive staff member to sit in his or her place, may the designee disclose to other department employees or department counsel information received in the closed session? We conclude that disclosure would be prohibited in both cases.

1. Disclosure to Local Appointing Authority and its Counsel

In addressing the first question, we begin by noting that the statutes governing the Conservancy do not authorize the participation of a city council or county board of supervisors in the actions taken by the Board. Such local bodies have no veto power or right of approval with respect to the activities of the Conservancy, which is an independent state commission. (See Pub. Resources Code, § § 33501, 33507; cf. 81 Ops.Cal.Atty.Gen. 362, 364 (1998) [by statute, joint powers agency member may not vote on bond issuance absent prior specific authorization from public agency represented by member].)

Instead, each designated city council and the county board of supervisors is limited to appointing a single person to sit as a member of the Board. Once such an appointment is made, the appointee may vote independently from — and even contrary to the express wishes of — his or her appointing power. (See 83 Ops.Cal.Atty.Gen. 267, 268 (2000) [joint powers agency member may cast vote inconsistent with position taken by local legislative body that appointed the member].) The fact that the member is an appointee does not give the appointing power any standing to attend, participate in, or otherwise be involved in the Board’s closed sessions. (See 83 Ops.Cal.Atty.Gen. 221, 224-225 (2000).)

We reject the suggestion that the city councils in question and the county board of supervisors may convene their own closed sessions to receive information given to their appointees during a closed session of the Board. Nothing in the Ralph M. Brown Act (§ § 54950-54963), which authorizes local public agencies to hold closed sessions in limited situations, or in the Public Resources Code suggests that these local bodies have any role to play in the Board’ s closed sessions.[FOOTNOTE 2] And, furthermore, we find nothing in the Ralph M. Brown Act that would qualify the Board’ s litigation concerns or real estate negotiations as appropriate subjects for the local bodies’ closed sessions; rather, a local body’s closed-session discretion is limited to litigation involving the local body itself, not the Board, and to real estate transactions involving the local body’s negotiators, not the Board’ s. (See § § 54956.8, 54956.9.)[FOOTNOTE 3]

Similarly, neither the Act nor the Public Resources Code allows for disclosure of information received in a closed session of the Board to the city attorneys of the cities in question or to the county counsel. Our opinion in 72 Ops.Cal.Atty.Gen. 159 (1989) does not support the contrary conclusion. There, we concluded that the Superintendent of Public Instruction could discuss with his legal counsel information received in a closed session of a state commission of which he was a member. His legal counsel, however, was also subject to the same statute that barred the Superintendent from disclosing the information. “This indicates that disclosures to the legal counsel would not be considered as ‘ outside’ disclosures by the Legislature, since the statute’s coverage extends to the legal counsel as well.” (Id. at p. 166.) Here, in contrast, neither the Act nor the Public Resources Code treats the city attorneys or the county counsel similarly to members of the Board.

For the foregoing reasons, we conclude that where a member of a city council or county board of supervisors is appointed to sit as that body’s representative on the Board, the appointee may not disclose to his or her appointing authority or its counsel information received in a closed session of the Board.

2. Disclosure to Other State Department Executive Staff Members or Department Counsel

We next consider whether our conclusion would be different where a member of the Board is a director of a state department, such as the Director of Fish and Game (Pub. Resources Code, § 33503, subd. (a)(6)), and designates an executive staff member to sit in his or her place. (Pub. Resources Code, § 33503, subd. (b).) May the designee disclose closed-session information to other department employees or department counsel? We conclude that our answer must remain the same: such disclosure would be prohibited.

Preliminarily, we note that the designee’s authority to discuss closed-session information with his or her principal, who is the ex officio member of the Board, is not in question. As we concluded in 72 Ops.Cal.Atty.Gen. 159, supra, such a discussion with the Board member would be permissible, since the designee would not be “giving out” the information. In our 1989 opinion, we explained:

” [W]e believe that the Superintendent is the Commission member even when he selects a designee to serve in his place. He acts through the designee and is responsible for all acts of the designee with respect to the Commission’s activities. The participation by the designee at an executive session of the Commission may be considered as though the Superintendent were personally present. The designee exercises the powers of and is subject to the restrictions governing the Superintendent and does not have independent membership authority on the Commission.

“Returning to the controlling language of subdivision (a) of section 44248, we find that it refers to a Commission member ‘ who releases or gives out’ information without proper authorization. To ‘ give out’ is ‘ to make known to or as if to the public.’ (Webster’s Third New Internat. Dict. (1966) p. 960.) ‘ Release’ may be similarly defined. (Id., at p. 1917.)

“Here, the Superintendent is not to be considered a member of the public but rather is the Commission member. The Superintendent’s designee does not ‘ release or give out’ Commission information by disclosing the information to the Superintendent, a Commission member. The latter participates in the Commission’s activities through his designee; disclosures between the two are outside the scope of section 44248.” (Id. at pp. 164-165.)

The same analysis does not hold true for other department employees or department counsel; they are not members of the Board. The general rule is that closed-session access is permitted only to people who have “an official or essential role to play” in the closed meeting. (83 Ops.Cal.Atty.Gen., supra,at p. 225; see 82 Ops.Cal.Atty.Gen. 29, 33 (1999); 46 Ops.Cal.Atty.Gen. 34, 35 (1965).) The other employees of the state department and department counsel have no such role to play in a closed session of the Board. (See 83 Ops.Cal.Atty.Gen. 221, supra [mayor not entitled to attend closed session of city agency]; 82 Ops.Cal.Atty.Gen. 29, supra[alternate member of local commission not entitled to attend closed commission meeting even though commission and public would benefit].) Without the right to be present at a closed session of the Board, the other state department employees and department counsel would not qualify to receive closed-session information. (See 80 Ops.Cal.Atty.Gen., 231, 235-241 (1997); 76 Ops.Cal.Atty.Gen. 289, 290-291 (1993); cf. 85 Ops.Cal.Atty.Gen. 115, 122, fn. 4 (2002).) We note, however, that the Board’s own staff and counsel would be available to provide advice to the Board members and their designees upon request.

Accordingly, in answer to the second question, we conclude that where the director of a state department is a member of the Board by operation of law and designates an executive staff member to sit in his or her place, the designee may not disclose to other department employees or department counsel information received in a closed session of the Board.

January 5, 2004 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. Unless otherwise indicated, all further statutory section references are to the Government Code.

FN2. We understand that one of the city councils represented on the Board requires all council members appointed to outside organizations to bring policy issues before the council for determination and instructions on voting. We assume that this can be accomplished without disclosing information obtained in a closed session of the Board.

FN3. In 67 Ops.Cal.Atty.Gen. 111 (1984), we were asked whether the Ralph M. Brown Act’s authorization to hold a closed session to discuss “pending litigation” permitted a county airport advisory commission to meet in closed session with the county counsel to discuss litigation involving airport matters in which the county board of supervisors was the named party. We reasoned that the attorney-client relationship was between the county counsel and the county as an entity, not merely its board of supervisors, and therefore, that “any county board, commission, committee, or officer having a legitimate official interest in a particular lawsuit may confer with counsel in an attorney-client relationship” in a closed session under the pending litigation exception. (Id. at p. 113.) That reasoning does not apply here, however, where the city councils in question and the county board of supervisors are not components of the Conservancy and are therefore not situated to invoke the pending litigation exception.

AG Opinion #02-1108

admin — Sat, 13 Jun 2009 05:12:06 +0000

OPINION of BILL LOCKYER Attorney General, GREGORY L. GONOT Deputy Attorney General

No. 02-1108

Office of the California Attorney General

June 6, 2003

THE HONORABLE TAMARA C. FALOR, COUNTY COUNSEL, COUNTY OF HUMBOLDT, has requested an opinion on the following questions:

1. Does a grand jury, sitting in its civil “watchdog” capacity, have the authority to admonish a witness not to disclose what the witness learns in the grand jury room regarding the subject of the grand jury’s inquiry?

2. May a violation of the admonition constitute contempt of court?

3. Would the following admonition be legally sufficient:

” You are admonished not to reveal to any
person, except as directed by the court, which questions were asked or what responses were given or any other matters concerning the nature or subject of the grand jury’s investigation which you learned during your appearance before the grand jury, unless and until such time as a transcript (if any), or a final report, of this grand jury proceeding is made public or until authorized by this grand jury or the court to disclose such matters. A violation of this admonition is punishable as contempt of court” ?

CONCLUSIONS

1. A grand jury, sitting in its civil “watchdog” capacity, has the authority to admonish a witness not to disclose what the witness learns in the grand jury room regarding the subject of the grand jury’s inquiry.

2. A violation of the admonition may constitute contempt of court.

3. The following admonition would be legally sufficient:

ANALYSIS

Penal Code section 888 [FOOTNOTE 1] describes the duties of a county grand jury as follows:

” A grand jury is a body of the required num
ber of persons returned from the citizens of the county before a court of competent jurisdiction, and sworn to inquire of public offenses committed or triable within the county.

“Each grand jury or, if more than one has
been duly impaneled . . ., one grand jury in each county, shall be charged and sworn to investigate or inquire into county matters of civil concern, such as the needs of county officers, including the abolition or creation of offices for, the purchase, lease, or sale of equipment for, or changes in the method or system of, performing the duties of the agencies subject to investigation . . . .”

In McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1170, the court summarized the functions of a grand jury as follows:

” The California grand jury has three basic
functions: to weigh criminal charges and determine whether indictments should be returned (§ 917); to weigh allegations of misconduct against public officials and determine whether to present formal accusations requesting their removal from office (§ 922; see Gov. Code, § 3060 et seq.); and to act as the public’s ‘ watchdog’ by investigating and reporting upon the affairs of local government (e.g., § § 919, 925 et seq.). Of these functions, the watchdog role is by far the one most often played by the modern grand jury in California. [Citations.]” (Fn. omitted.)

The three questions presented for resolution concern the authority of a grand jury, acting in its role as the public’s “watchdog,” [FOOTNOTE 2] to admonish witnesses not to disclose what they learn in the grand jury room.

1. Authority to Admonish Witnesses

The first question concerns whether a grand jury may admonish witnesses regarding the secrecy of grand jury proceedings. We conclude that a grand jury may admonish witnesses not to disclose what they learn in the grand jury room.

Preliminarily, we note that proceedings held by a grand jury sitting in its civil watchdog capacity are generally closed to the public (§ § 915, 939, 939.1), and grand jurors are prohibited from disclosing any evidence presented in such sessions except when required by a court (§ 924.1). Grand jurors take an oath pledging not to disclose any evidence brought before the grand jury or any statements made by a grand juror during the proceedings. (§ 911.) These provisions reflect “‘ the strong historic policy of preserving grand jury secrecy.’ ” ( McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at p. 1174, quoting United States v. Sells Engineering, Inc. (1983) 463 U.S. 418, 428.) The importance of maintaining the secrecy of grand jury proceedings has been noted by the courts and this office in a variety of contexts. (See, e.g., Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1122-1125; Brooks v. Bind erup (1995) 39 Cal.App.4th 1287, 1291-1292; Farnow v. Superior Court (1990) 226 Cal.App.3d 481, 488-489; 83 Ops.Cal.Atty.Gen. 161, 162-163 (2000); 79 Ops.Cal.Atty.Gen. 186, 187-190 (1996).)

In 66 Ops.Cal.Atty.Gen. 85 (1983), we addressed whether a grand jury, sitting in its criminal indictment role, may give a secrecy admonition to a witness. We concluded:

” The statutes evidencing a clear legislative
intention that grand jury proceedings remain secret have been noted. Where the general purpose of a statute is declared, the details provided for its accomplishment will be regarded as necessary incidents. [Citation.] Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. [Citation.] The secrecy of grand jury proceedings would be defeated if witnesses were free to relate their testimony to the press as they left the grand jury room. The authority and duty of grand jurors to keep their proceedings secret includes the authority to take reasonable measures to maintain such secrecy. A secrecy admonition to grand jury witnesses is a reasonable measure to maintain that secrecy. We conclude that a California grand jury does have the authority, implied from the statutes which require secrecy of grand jury proceedings, to admonish witnesses appearing before them not to reveal to others what the witness learns from his or her grand jury appearance about the matters under consideration by the grand jury.” ( Id. at pp. 89-90.)

We found support for our conclusion in People v. Mersino (1965) 237 Cal.App.2d 265, where a grand jury witness was given the following admonishment: “You are admonished not to discuss or repeat at any time outside this jury room the questions that have been asked you in regard to this matter and your answers with the understanding that such disclosure on your part may be the basis for charges of contempt of court.” ( Id. at p. 268.) The court approved the admonishment given by the grand jury in its role of returning criminal indictments, stating in part:

” There are good and satisfying reasons why
witnesses before a grand jury may be admonished not to disclose the questions asked them or their answers. One sufficient reason is that a charge may be under investigation as to a person against whom no indictment is returned. It may be to such person’s advantage that the pendency of such investigation be not made public. If the investigation should result in an indictment, it may be to the public advantage that the person indicted have no advance warning. [Citation.]” ( Id. at p. 269.)

We believe the Legislature’s policy of preserving the secrecy of grand jury proceedings is not only applicable when a grand jury is performing its criminal indictment function, but also when it is performing its civil watchdog function. In McClatchy Newspapers v. Superior Court, supra , 44 Cal.3d 1162, the Supreme Court observed:

” The importance of secrecy is well estab
lished in the context of the grand jury’s criminal indictment function. By the same token, when the grand jury conducts a watchdog investigation of local government operations as in the instant case, secrecy appears equally vital. Compared with indictment proceedings, the efficacy and credibility of watchdog investigations no less require that witnesses testify without fear of reproach by their peers or their superiors. Though the watchdog investigation and report serve a different social purpose than the criminal indictment, eliciting candid testimony is obviously critical to both functions of the grand jury.

“Significantly, the separate and distinct func
tions of watchdog and indictment grand juries are sometimes intermingled, in the sense that watchdog inquiries into alleged corruption may involve the weighing of possible criminal indictments against county officials and others being investigated. . . . Whether or not a watchdog grand jury actually undertakes the weighing of indictments, secrecy ‘ provides the proper atmosphere in which to generate uninhibited testimony from county employees who might otherwise be intimidated by political and employment considerations.’ [Citations.]

“Secrecy also serves to protect the reputa
tions of those who may be unjustly accused during the course of a watchdog investigation. ‘ Grand jury secrecy . . . is “as important for the protection of the innocent as for the pursuit of the guilty.” [Citation omitted.]‘ [Citation.]” ( Id. at pp. 1175-1176.)

Accordingly, a secrecy admonition given to a witness in a grand jury’s civil watchdog proceeding would serve to promote “the grand jury’s effective operation” ( McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at p. 1173) and would be consistent with the general legislative policy that “grand jury secrecy is the rule and openness is the exception” ( id. at p. 1180). [FOOTNOTE 3]

We conclude that in order to carry out the Legislature’s policy of preserving the secrecy of grand jury proceedings, a grand jury, sitting in its civil watchdog capacity, may admonish a witness not to disclose what the witness learns in the grand jury room.

2. Contempt of Court

The second question presented for resolution concerns whether a violation of a grand jury’s secrecy admonition, given in the performance of its civil watchdog function, may constitute contempt of court. We conclude that it may.

Code of Civil Procedure section 1209 describes various contempts of court as follows:

” (a) The following acts or omissions in re
spect to a court of justice, or proceedings therein, are contempts of the authority of the court:

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .

“5. Disobedience of any lawful judgment, or
der, or process of the court;

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .”

For purposes of Code of Civil Procedure section 1209, we find that a grand jury is a component part of the superior court ( People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 433), a “judicial body” ( Ex parte Sterns (1889) 82 Cal. 245, 247), “an instrumentality of the courts of this state” ( In re Shuler (1930) 210 Cal. 377, 405), and “an arm of the court and part of the judicial system” ( People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d at p. 442). (See, e.g., § § 914, 914.1 [impaneling of grand jury by court for purposes of inquiry into matters of civil concern], 914.5 [court approval needed for grand jury expenditures in excess of amount budgeted for investigative activities], 933 [grand jury must submit final report of findings and recommendations concerning county government matters to presiding judge of superior court].)

In our 1983 opinion, we concluded that a violation of a secrecy admonition given by a grand jury in its criminal indictment role could be punishable as contempt of court. (66 Ops.Cal.Atty.Gen., supra , at pp. 91-94.) In reaching our conclusion, we relied upon numerous court decisions and prior opinions. In 25 Ops.Cal.Atty.Gen. 259 (1955), for example, we observed:

” A grand jury is a judicial body [citations].
Grand jurors are officers of the court [citation], and the jury itself is a component part of the superior court [citations]. The relationship and unity of the court and jury is such that contempt of the grand jury is contempt of the superior court [citations].” ( Id. at p. 259.) [FOOTNOTE 4]

Following upon our prior opinions, we conclude that a violation of a secrecy admonition given to a witness by a grand jury, sitting in its civil watchdog capacity, may constitute contempt of court.

3. Terms of the Admonition

The third question presented for resolution concerns the terms of a proposed secrecy admonition. Would the following admonition be legally sufficient:

We conclude that such an admonition would be legally sufficient.

The proposed admonition is essentially the same as the one we approved in 66 Ops.Cal.Atty.Gen. 85, supra, for issuance while a grand jury is performing its criminal indictment function. ( Id. at p. 91.) The only differences reflect the different procedures that apply to civil and criminal grand jury proceedings. A transcript of the testimony given during the proceeding is required to be made only when criminal causes are being investigated (see § 938); hence, the proposed admonition’s reference to a transcript “if any” would be appropriate. Since a grand jury conducting a civil investigation is required to submit a final report of its findings and recommendations to the superior court (§ 933), the proposed admonition properly provides for the release of the report by the court as a point at which the veil of secrecy may be lifted. No other differences between the admonition we approved in 1983 and the proposed admonition merit discussion.

Based upon our 1966 opinion and the cases cited therein, we conclude that the following admonition given to a witness by a grand jury, when sitting in its civil watchdog capacity, would be legally sufficient:

June 10, 2003 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. All further statutory reference are to the Penal Code unless otherwise specified.

FN2. More particularly, the powers and duties of county grand juries (§ § 914-945) include the investigation of county, city, and district affairs (see, e.g., § § 919, 920, 925, 925a, 927, 928, 933.1, 933.5, 933.6).

FN3. We recognize that in a different context, the courts have declined to approve the exercise of a grand jury’s “inherent” or “implied” powers. (See, e.g., Daily Journal Corp. v. Superior Court, supra, 20 Cal.4th at p. 1125; Allen v. Payne (1934) 1 Cal.2d 607, 608.) Here, in contrast, we believe “the Legislature has deemed appropriate” ( McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at pp. 1179) preserving the secrecy of civil watchdog proceedings which a grand jury may accomplish by issuing a secrecy admonition to a witness.

FN4. We are aware that in a different context, the courts have recently described a superior court’s authority over a grand jury as limited to preventing the grand jury from violating the law. (See Daily Journal Corp. v. Superior Court, supra, 20 Cal.4th at pp. 1128-1131; People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d at pp. 439-441; Board of Retirement v. Santa Barbara County Grand Jury (1997) 58 Cal.App.4th 1185, 1191-1192.) Here, on the other hand, we have a grand jury’s admonition entitled to court enforcement to effectuate the Legislature’s policy of preserving the secrecy of grand jury proceedings and to promote the grand jury’s effective operation.

AG Opinion #01-605

admin — Sat, 13 Jun 2009 05:11:37 +0000

OPINION of BILL LOCKYER Attorney General,

MARJORIE E. COX Deputy Attorney General

No. 01-605

Office of the California Attorney General

Filed November 1, 2002

THE HONORABLE BYRON SHER, MEMBER OF THE STATE SENATE, has requested an opinion on the following question:

Does a county board of supervisors have statutory authority to charge a fee for a copy of a public record that exceeds the fee amount authorized by the California Public Records Act?

CONCLUSION

A county board of supervisors has statutory authority to charge a fee for a copy of a public record that exceeds the fee amount authorized by the California Public Records Act provided that the fee set by the county does not exceed the amount reasonably necessary to recover the cost to the county of providing the copy. In granting such statutory authority, the Legislature has specified exceptions for fees charged in furnishing copies of certain public records.

ANALYSIS

The question presented for resolution concerns the relationship between two different statutes contained in the Government Code.[FOOTNOTE 1] Section 6253 is part of the California Public Records Act (§ § 6250-6276.48; “Act” ) and authorizes state and local public agencies to charge a fee when furnishing a copy of a public record. Subdivision (b) of section 6253 states:

” Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.”

Accordingly, under the terms of section 6253, a public agency may charge a fee for a copy of a public record in an amount that is either (1) based upon and limited to the “direct costs of duplication” or (2) authorized and determined under some other statute. (North County Parents Organization v. Department of Education (1994) 23 Cal.App.4th 144, 147-148.)[FOOTNOTE 2]

The second statute in question is section 54985. It is part of a statutory scheme (§ § 54985-54988) that authorizes counties to increase certain fees under specified conditions. Section 54985 provides:

” (a) Notwithstanding any other provision of law that prescribes an amount or otherwise limits the amount of a fee or charge that may be levied by a county, a county service area, or a county waterworks district governed by a county board of supervisors, a county board of supervisors shall have the authority to increase or decrease the fee or charge, that is otherwise authorized to be levied by another provision of law, in or the cost of enforcing any regulation for which the fee or charge is levied. The fee or charge may reflect the average cost of providing any product or service or enforcing any regulation. Indirect costs that may be reflected in the cost of providing any product or service or the cost of enforcing any regulation shall be limited to those items that are included in the federal Office of Management and Budget Circular A-87 on January 1, 1984.

“(b) If any person disputes whether a fee or charge levied pursuant to subdivision (a) is reasonable, the board of supervisors may request the county auditor to conduct a study and to determine whether the fee or charge is reasonable.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . .

“(c) This chapter shall not apply to any of the following:

“(1) Any fee charged or collected by a court clerk pursuant to Section 26820.4, 26823, 26824, 26826, 26827, 26827.4, 26830, 72054, 72055, 72056, 72059, 72060, or 72061 of the Government Code or Section 103470 of the Health and Safety Code, and any other fee or charge that may be assessed, charged, collected, or levied, pursuant to law for filing judicial documents or for other judicial functions.

“(2) Any fees charged or collected pursuant to [Sections 6100-6110].

“(3) Any standby or availability assess ment or charge.

“(4) Any fee charged or collected by a county agricultural commissioner.

“(5) Any fee charged or collected pursuant to [Sections 12240-12246] of the Business and Professions Code.

“(6) Any fee charged or collected by a county recorder or local registrar for filing, recording, or indexing any document, performing any service, issuing any certificate, or providing a copy of any document pursuant to Section 2103 of the Code of Civil Procedure, Section 27361, 27361.1, 27361.2, 27361.3, 27361.4, 27361.8, 27364, 27365, or 27366 of the Government Code, Section 103625 of the Health and Safety Code, or Section 9525 of the Uniform Commercial Code.

“(7) Any fee charged or collected pursuant to [Sections 26720-26751] of the Government Code.”

The issue to be addressed is whether under the terms of section 54985, a county board of supervisors may charge a fee for a copy of a public record that exceeds the fee amount authorized in section 6253. We conclude that the authorization of section 54985 is applicable to most fees for copies of public records.

First, we note that section 6253 applies not only to counties but also to state agencies, cities, school districts and other public entities. (§ 6253, subd. (b).) It does not appear, however, that subdivision (a) of section 54985 requires the “other provision of law,” such as section 6253, to apply only to counties. As long as the other law “prescribes an amount or otherwise limits the amount of a fee or charge that may be levied by a county,” the terms of section 54985 would be applicable regardless of whether some other public agency may also be limited in charging the fee in question.[FOOTNOTE 3]

Next, we consider whether section 6253 authorizes a “fee or charge” for purposes of section 54985. Section 6253 does not specify a particular amount to be paid for a copy of a public record. Moreover, its reference to “a statutory fee” suggests that some other provision of law may be followed without the need for reliance upon the terms of section 6253.

Nonetheless, section 6253 clearly prescribes the collecting of a fee for furnishing a copy of a public record. Even without considering the “statutory fee” alternative, section 6253 allows charging a fee based upon the “direct costs of duplication.” While the amount of the fee is thus limited in this alternative and must be administratively determined, the fee for the copy “is otherwise authorized to be levied by another provision of law” for purposes of section 54985, subdivision (a). (See Shippen v. Department of Motor Vehicles, supra, 161 Cal.App.3d at pp. 1124-1127; 76 Ops.Cal.Atty.Gen., supra, at pp. 250-251.)[FOOTNOTE 4]

Next, we address whether the language of section 54985 may be applied to a copy of a public record. Is a copy a “product or service” as that phrase is used in subdivision (a) of section 54985? Under section 6253, a person requesting a copy of a public record would expect to receive a tangible object that is a “product” which is produced by the performance of a “service.” (See North County Parents Organization v. Department of Education, supra, 23 Cal.App.4th at p. 147; 61 Ops.Cal.Atty.Gen. 458, 461-464 (1978); 28 Ops.Cal.Atty.Gen. 70, 71 (1956).) Such a product or service comes within the language of section 54985 since the statute itself exempts fees charged for copies of certain public records.

For example, the fee for a copy of a public record cannot be increased by a county board of supervisors under subdivision (a) of section 54985 if the copy is of a “writ, process, paper, order, or notice actually made by” the sheriff (§ 26727), “a birth, death, or marriage certificate, when the copy is made by the recorder” (§ 27365), or “of any other record or paper on file in the office of the recorder, when the copy is made by the recorder” (§ 27366) or “any notice of federal lien, or notice or certificate affecting a federal lien” (Code Civ. Proc., § 2103, subd. (d)). (See § 54985, subd. (c)(6), (c)(7); see also County of Santa Barbara v. Connell (1999) 72 Cal.App.4th 175, 180-182; 76 Ops.Cal.Atty.Gen., supra, at p. 252.) There would be no need to exclude fees charged for copies of these public records if fees for copies of public records were not subject to being increased under the general provisions of subdivision (a) of the statute. As stated by the Supreme Court in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063: “[W]e consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. [Citation.]”

Subdivision (a) of section 54985 limits a county’ s fee for a copy of a public record to “the amount reasonably necessary to recover the costs of providing” the copy.[FOOTNOTE 5] In charging a fee to cover its costs, a county board of supervisors could conceivably benefit those being charged since “[a]n inability to charge fees in a sufficient amount to cover costs would likely produce inadequate staffing . . . .” (76 Ops.Cal.Atty.Gen., supra, at p. 253, fn. 5.) In any event, a “reasonably necessary” fee for a copy of a public record would have no effect upon the public’ s right of access to and inspection of public records free of charge.[FOOTNOTE 6]

Finally, as between the provisions of section 6253 and section 54985, those of the latter control those of the former. Subdivision (a) of 54985 begins: “Notwithstanding any other provision of law . . . .” Section 6253 is such a “provision of law” that limits the amount a county may charge for a copy of a public record. The “notwithstanding” phrase contained in section 54985 constitutes a “term of art [that] has been read as an express legislative intent to have the specific statute control despite the existence of other law which might otherwise govern. [Citations.]” (People v. DeLaCruz (1993) 20 Cal.App.4th 955, 963.)

We conclude that a county board of supervisors has statutory authority to charge a fee for a copy of a public record that exceeds the fee amount authorized by the Act provided that the fee set by the county does not exceed the amount reasonably necessary to recover the cost to the county of providing the copy. In granting such statutory authority, the Legislature has specified exceptions for fees charged in furnishing copies of certain public records.

November 6, 2002 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. All further statutory references are to the Government Code unless otherwise indicated.

FN2. The “statutory fee” provision need not specify an exact amount of the fee but may simply authorize the charging of a fee in an amount to be determined by the public agency. Such a statute might specify the factors to be considered in the public agency’ s calculation of the fee. (Shippen v. Department of Motor Vehicles (1984) 161 Cal.App.3d 1119, 1124-1127; 76 Ops.Cal.Atty.Gen. 249, 250-251 (1993).)

FN3. The exemptions listed in subdivision (c) of section 54985 also indicate that the statute’ s terms would be applicable where the other provision of law limits the amount of a fee that would be charged by some other public agency.

FN4. Section 54985 does not grant independent authority to charge a fee in the first instance but only authorizes a county board of supervisors to increase (or decrease) a fee that is statutorily authorized elsewhere. (§ 54987.) Here, section 6253 provides the independent authorization for the county to levy the fee in question.

FN5. Subdivision (b) of section 54985 allows “the county auditor to conduct a study and to determine whether the fee or charge is reasonable” if the reasonableness of a fee increased by the county board of supervisors is disputed. (See 76 Ops.Cal.Atty.Gen, supra, at p. 252, fn. 4.)

FN6. The courts have noted that requests for copies of public records are often not “for the purpose of staying informed about the conduct of the people’ s business, as the Act states (§ 6250),” but rather the copies are obtained for commercial purposes in selling information to others. (See Shippen v. Department of Motor Vehicles, supra, 161 Cal.App.3d at p. 1126.)

AG Opinion #02-711

admin — Sat, 13 Jun 2009 05:11:11 +0000

OPINION of BILL LOCKYER, Attorney General, MARJORIE E. COX, Deputy Attorney General

No. 02-711

Office of the California Attorney General

October 23, 2002

THE HONORABLE STEVE COOLEY, DISTRICT ATTORNEY, COUNTY OF LOS ANGELES, has requested an opinion on the following question:

May public funds of a general law city or charter city be expended to reimburse city officials for their expenses in purchasing meals for third parties, such as constituents, legislators and private business owners, at meetings held to discuss legislation or other matters of benefit to the city?

CONCLUSION

Public funds of a general law city may not be expended to reimburse city officials for their expenses in purchasing meals for third parties, such as constituents, legislators and private business owners, at meetings held to discuss legislation or other matters of benefit to the city. If the charter so authorizes, public funds of a charter city may be expended for such purposes.

ANALYSIS

Recently, the Public Integrity Division of the Los Angeles County District Attorney’s Office has received several inquiries from members of the public concerning whether the funds of a general law city or a charter city may be used to reimburse city officials for their expenses in purchasing meals for others, such as legislators, constituents and representatives of private businesses, during a lunch or dinner meeting where legislation or other matters of importance to the city are discussed. We conclude that the funds of a charter city, but not a general law city, may be expended for such purposes.

1. General Law Cities

Article XI, section 2, subdivision (a), of the Constitution directs the Legislature to provide for “city powers.” The Legislature has complied with this mandate by enacting various statutes, two of which merit attention in the present context. The first is Government Code section 36514.5,[FOOTNOTE 1] which provides for the reimbursement of expenses incurred by city council members:

” City councilmen may be reimbursed for actual and necessary expenses incurred in the performance of official duties.”

The second is section 50023, which states the rule regarding the reimbursement of expenses incurred in attending meetings with legislators:

” The legislative body of a local agency, directly or through a representative, may attend the Legislature and Congress, and any committees thereof, and present information to aid the passage of legislation which the legislative body deems beneficial to the local agency or to prevent the passage of legislation which the legislative body deems detrimental to the local agency. . . . The cost and expense incident thereto are proper charges against the local agency.” [FOOTNOTE 2]

In analyzing these two statutes, we note that laws allowing the payment of “fees, expenses, and compensation of public officers” are to be “strictly construed.” (Madden v. Riley (1942) 53 Cal.App.2d 814, 822; accord, County of San Diego v. Milotz (1956) 46 Cal.2d 761, 767; 66 Ops.Cal.Atty.Gen. 186, 187 (1983); 65 Ops.Cal.Atty.Gen. 517, 520-521 (1982).) The purpose of this rule of statutory construction is to protect public funds from unnecessary or excessive claims. (Citizen Advocates, Inc. v. Board of Supervisors (1983) 146 Cal.App.3d 171, 177; 61 Ops.Cal.Atty.Gen. 303, 305 (1978); 60 Ops.Cal.Atty.Gen. 16, 21 (1977).) Accordingly, “where ambiguity arises and [an] enactment admits of two interpretations,” the statutory interpretation most “in favor of the government” must be adopted. (County of Marin v. Messner (1941) 44 Cal.App.2d 577, 585; see County of San Diego v. Milotz, supra, 46 Cal.2d at p.767.)

Turning first to the grant of authority contained in section 36514.5, we find that only claims for a city council member’s “actual and necessary expenses” are to be reimbursed. (65 Ops.Cal.Atty.Gen., supra, at pp. 521-523.) This restriction avoids any possible application of the prohibition contained in article XVI, section 6, of the Constitution which states: “The Legislature shall have no power . . . to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever . . . .” (See Albright v. City of South San Francisco (1975) 44 Cal.App.3d 866, 869-870; 61 Ops.Cal.Atty.Gen. 342, 344 (1978).)

In 61 Ops.Cal.Atty.Gen. 303, supra, we addressed a question similar to that presented here. Under Education Code section 44032, “the actual and necessary expenses” of a school district employee were examined. We concluded that the statutory phrase “actual and necessary expenses” did not include meals purchased for community leaders even though the purchase “is deemed to be for the benefit of and in the best interest of a school district.” (Id. at p. 305; see also Citizen Advocates, Inc. v. Board of Supervisors, supra, 146 Cal.App.3d at pp. 178-179; California Teachers Assn. v. Board of Trustees (1977) 70 Cal.App.3d 431, 435; Madden v. Riley, supra, 53 Cal.App.2d. at pp. 822-824; cf. Metropolitan Water Dist. v. Adams (1944) 23 Cal.2d 770, 773; 75 Ops.Cal.Atty.Gen. 20, 22 (1992); 65 Ops.Cal.Atty.Gen., supra, at pp. 521-523; 61 Ops.Cal.Atty.Gen. 478, 480 (1978).) We reaffirm our 1978 opinion as to the meaning of the statutory phrase “actual and necessary expenses.” [FOOTNOTE 3]

Turning next to section 50023 with respect to expenses incurred by city officials when seeking the passage or defeat of state or federal legislation, we have interpreted the phrase “cost and expense incident thereto” as excluding the purchase of meals for others. In 66 Ops.Cal.Atty.Gen. 186, supra, we explained:

” The last sentence of section 50023 makes the ‘cost and expense incident thereto’ a proper charge against the county. . . . [W]e believe the context of section 50023 impliedly restricts the costs and expenses which are chargeable to the county to those incurred by the county’s representatives and the costs and expenses of others who may attend the same meeting are not chargeable to the county under that section.

“Webster defines ‘incident’ as something that happens as a result of or in connection with something more important. The more important something here is the meeting which the county representatives attend to present information. If meals are served at this meeting then the county representatives’ costs of their meals result from and are connected with that meeting and are therefore incident thereto and chargeable to the county under section 50023. However, the cost of meals of others attending the same meeting, though incident to the meeting and perhaps chargeable to their employers, are not chargeable to the county under section 50023.” (Id. at pp. 188-189.)

We reaffirm our 1983 opinion as to the meaning of the phrase “cost and expense incident thereto” contained in section 50023.

No other statute requires our examination concerning the use of funds by a general law city to reimburse city officials for the purchase of meals for third parties, such as constituents, legislators and business owners, at meetings held to discuss legislation or other matters of benefit to the city.[FOOTNOTE 4] Statutory authority for such reimbursement does not exist.

2. Charter Cities

Section 5 of article XI of the Constitution provides:

” (a) It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.

“(b) It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: . . . (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, . . . the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.”

In contrast to general law cities, charter cities may have provisions in their charters that supersede state statutes “with respect to municipal affairs” involving “areas which are of intramural concern only.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17; accord, Johnson v. Bradley (1992) 4 Cal.4th 389, 399.)

We have previously concluded that the reimbursement provisions contained in section 36514.5 may be superseded by the charter provisions of a charter city. In 65 Ops.Cal.Atty.Gen. 517, supra, we observed:

” . . . [A] city may derive some of its powers from a city charter. Article XI, section 5 . . . provides that a city charter may provide for the regulation of municipal affairs and the regulation of municipal affairs pursuant to such charter shall supersede all laws inconsistent therewith.

“. . . We believe that reimbursement of city officers and employees for expenses incurred in performing city duties is a municipal affair within the meaning of article XI, section 5. [Citation.] Thus a city charter may provide for the reimbursement of expenses of members of a city council in a manner different from that provided in section 36514.5. In such case the provisions authorized by the charter would supersede those in section 36514.5.” (Id. at p. 524; see 57 Ops.Cal.Atty.Gen. 11, 12-14 (1974).)

Hence, the electorate of a charter city through the adoption of a charter or its amendment has the constitutional authority to determine which, if any, expenses incurred by city officials will be reimbursed. The charter and any implementing ordinances would govern the right to reimbursement in the circumstances presented. (See Porter v. City of Riverside (1968) 261 Cal.App.2d 832, 834-839; 28 Ops.Cal.Atty.Gen., supra, at p. 327.)

We conclude that public funds of a general law city may not be expended to reimburse city officials for their expenses in purchasing meals for third parties, such as constituents, legislators and private business owners, at meetings held to discuss legislation or other matters of benefit to the city. If the charter so authorizes, public funds of a charter city may be expended for such purposes.

October 25, 2002 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. All further statutory references are to the Government Code unless otherwise indicated.

FN2. The “legislative body of a local agency” includes the city council of a general law city. (§ § 5001, 5002.)

FN3. “It must be presumed that the [Attorney General' s] interpretation [of a statute] has come to the attention of the Legislature, and if it were contrary to the legislative intent that some corrective measure would have been adopted . . . .” (Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420, 432; see California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17; Southern Pacific Pipe Lines, Inc. v. State Bd. of Equalization (1993) 14 Cal.App.4th 42, 54.)

FN4. In 14 Ops.Cal.Atty.Gen. 6 (1949), we concluded that under the terms of section 26104, county funds to make “known the resources of the county” could be used to host a luncheon for a business convention group interested in the agricultural products of the county. It was assumed that “exhibits and speeches and a sight-seeing tour” would be provided as part of the advertising campaign. (Id. at p. 8; see also 28 Ops.Cal.Atty.Gen. 326, 333 (1956).) We believe that each relevant statute must be examined in light of its terms, purposes and the particular circumstances involved. Here, we find only sections 36514.5 and 50023 relevant to the question presented.

AG Opinion #01_401_02

admin — Sat, 13 Jun 2009 05:10:42 +0000

OPINION of BILL LOCKYER,

Attorney General;

MARJORIE E. COX, Deputy Attorney General

No. 01-401

Office of the Attorney General of the State of California

Filed March 14, 2002

THE HONORABLE TONY STRICKLAND, MEMBER OF THE STATE ASSEMBLY, has requested an opinion on the following questions:

Do the open meeting requirements of the Ralph M. Brown Act apply to the meetings of the governing board of a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city and subsequently designated by the city to provide the programming services?

Do the records disclosure requirements of the Public Records Act apply to such a corporation?

CONCLUSIONS

The open meeting requirements of the Ralph M. Brown Act apply to the meetings of the governing board of a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city and subsequently designated by the city to provide the programming services.

The records disclosure requirements of the Public Records Act apply to a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city and subsequently designated by the city to provide the programming services.

ANALYSIS

In 1995, the City of Thousand Oaks (“City” ) granted Ventura County Cablevision (“Cablevision” ) a franchise to install and operate a cable television system within the City. Cablevision agreed to set aside a channel for educational use and to operate the channel until such time as the City designated a nonprofit corporation to assume operational control. Cablevision also agreed to grant $25,000 for the purchase of television production equipment to a consortium of educators to be designated by the City.[FOOTNOTE 1]

In 1996, a nonprofit public benefit corporation (“Corporation” ) was organized with the stated purpose of “join[ing] together the area’ s schools, universities, and colleges and other educational organizations in order to establish and implement policies for the management, utilization, programming and scheduling of one or more dedicated educational access community cable TV channels. . . .” The City designated the Corporation as the entity responsible for programming the educational access channel (“Channel 21″ ) to be set aside under Cablevision’ s franchise agreement. The City also designated the Corporation as the recipient of Cablevision’ s $25,000 production equipment grant and similar grants, thereby providing the Corporation with an initial capitalization of $57,000.

The Corporation currently has five directors, three of whom are appointed by the Conejo Valley Unified School District (“School District” ); the other two directors must be approved by the School District. One of the Corporation’ s directors is a School District trustee. The School District provides $200 annually towards the Corporation’ s franchise fees.

Insofar as we have been advised, no City officer has served as a director of the Corporation, and the City has not directly contributed money to the Corporation since the original grants of $57,000. However, the City has the right to review and approve any guidelines the Corporation has or might adopt concerning the use of Channel 21 and has the right to terminate the authority previously delegated to the Corporation to provide programming for the channel.

1. Public Meeting Requirements

The first question to be resolved is whether the meetings of the Corporation’ s board of directors are subject to the open meeting requirements of the Ralph M. Brown Act (Gov. Code, § § 54950-54962; “Brown Act” ).[FOOTNOTE 2] We conclude that they are.

The Brown Act generally requires the legislative body of a local public agency to hold its meetings open to members of the public. (§ § 54951, 54952, 54953, 54962.) Agendas of the meetings must be posted (§ § 54954.1, 54954.2), and the public must be given an opportunity to address the legislative body on items of interest (§ 54954.3).

The evident purposes of the Brown Act are to allow the public to attend, observe, monitor, and participate in the decision-making process at the local level of government. Not only are the actions taken by the legislative body to be monitored by the public but also the deliberations leading to the actions taken. (§ 54950; see Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373, 375; Frazer v. Dixon Unified School Dist. (1993) 18 Cal.App.4th 781, 794-798; Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 100; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 45.)

Subdivision (a) of section 54953 provides for meetings of local agencies to be open to the public:

” All meetings of the legislative body of a lo

cal agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”

A “local agency” is defined in section 54951 as follows:

” As used in this chapter, ‘ local agency’

means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency.”

The term “legislative body” is defined in section 54952 to include the board of private corporations in specified circumstances:

” As used in this chapter, ‘ legislative body’

means:

“. . . . . . . . . . . . . . . . . . . . . . . . . ”

“(c)(1) A board, commission, committee, or

other multimember body that governs a private corporation or entity that either:

“(A) Is created by the elected legislative body

in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation or entity.

“(B) Receives funds from a local agency and

the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ”

Under the language of section 54952, subdivision (c)(1)(A), the board of directors of the Corporation would constitute a “legislative body” subject to the Brown Act if the Corporation was created by an elected legislative body to exercise authority lawfully delegated by such elected legislative body. (See Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 868-873; International Longshoremen’ s & Warehousemen’ s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 293-300.)

In the present circumstances, the city council of the City (an elected legislative body of a local agency) played a role in bringing the Corporation into existence by (1) granting a franchise to Cablevision, (2) requiring Cablevision to set aside an educational channel, (3) designating the Corporation as the entity to operate the channel, and (4) indirectly providing the Corporation with an initial capitalization of $57,000. The term “created by” in section 54952, subdivision (c)(1)(A), means that the “City ‘ played a role in bringing’ the [private corporation] ‘ into existence.’ [Citation.]” (Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., supra, 87 Cal.App.4th at p. 870, citing International Longshoremen’ s & Warehousemen’ s Union v. Los Angeles Export Terminal, Inc., supra, 69 Cal.App.4th at p. 295.)

The authority to operate the educational access channel was lawfully delegated to the Corporation by the city council of the City. (See § 53066; 47 U.S.C. § § 521, 531; see also International Longshoremen’ s & Warehousemen’ s Union v. Los Angeles Export Terminal, Inc., supra, 69 Cal.App.4th at p. 297 ["a public body may delegate the performance of administrative functions to a private entity if it retains ultimate control over administration so that it may safeguard the public interest" ].) Here, the City has reserved the right to review and approve any guidelines the Corporation has concerning the use of Channel 21 and has reserved the right to terminate its authority previously delegated to the Corporation.

Both of the conditions of section 54952, subdivision (c)(1)(A), have therefore been met, resulting in the Corporation’ s board coming within the meaning of a “legislative body” for purposes of the Brown Act’ s requirements.

Moreover, the Corporation’ s board also constitutes a “legislative body” under the terms of section 54952, subdivision (c)(1)(B). The Corporation receives funds from the School District, a local agency (§ 54951). Not only does the School District appoint three of the Corporation’ s five directors, it must approve the appointments of the other two directors as well. One of the School District’ s trustees is a Corporation director with full voting rights. Hence, the Corporation’ s board constitutes a “legislative body” as defined in section 54952, subdivision (c)(1)(B).

We conclude that the open meeting requirements of the Brown Act apply to the meetings of the governing board of a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city and subsequently designated by the city to provide the programming services.

2. Public Records Requirements

The second question to be resolved is whether the records of the Corporation are subject to the requirements of the Public Records Act (§ § 6250-6276.48). We conclude that they are.

Under the Public Records Act, a state or local public agency is generally required to allow any member of the public to inspect the records in its custody. (§ § 6250, 6252, 6253; Register Div. of Freedom Newspaper, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 901.) “[A]ccess to information concerning the conduct of the people’ s business is a fundamental and necessary right of every person in this state.” (§ 6250; see Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 1141.)

Local public agencies (see § 6252, subd. (d)) that are subject to the public disclosure of their records are defined in section 6252, subdivision (b), as follows:

” ‘ Local agency’ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or nonprofit entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.”

The Corporation meets the test for being a local agency as that term is defined in section 6252. As found in answer to the first question, the Corporation is a nonprofit entity whose board of directors constitutes a “legislative body” pursuant to section 54952, subdivision (c).[FOOTNOTE 3] Our answer to the first question thus answers the second question.

We conclude that the disclosure requirements of the Public Records Act apply to a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city and subsequently designated by the city to provide the programming services.

March 18, 2002 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. The Cable Communications Policy Act of 1984 (47 U.S.C. § § 521-573) authorizes local governments to require cable operators to enter franchise agreements governing the operation of their cable systems and to set aside channels for “public, educational, or governmental use” (47 U.S.C. § § 521, 531) “as part of the consideration an operator gives in return for permission to install cables under city streets and to use public rights-of-way” (Denver Area Ed. Telecommunications Consortium, Inc. v. FCC (1996) 518 U.S. 727, 734 (plur. opn. of Breyer, J.). (See also Gov. Code, § 53066; 46 Ops.Cal.Atty.Gen. 22, 24 (1965).)

FN2. All references hereafter to the Government Code are by section number only.

FN3. Subdivision (d) of section 54952 refers to the lessees of certain hospitals.

AG Opinion #02-406 Media Cannot Attend a child’s individualized education program meeting even if their attendance has the consent of the parents (2002)

admin — Sat, 13 Jun 2009 05:09:59 +0000

August 26, 2002

[Attorney General's Opinion #02-406]

THE HONORABLE RICHARD G. POLANCO, MEMBER OF THE STATE SENATE, has requested an opinion on the following question:

May members of the news media attend a child’s individualized education program meeting as observers if their attendance has the consent of the parents?

CONCLUSION

Members of the news media may not attend a child’s individualized education program meeting as observers even though their attendance has the consent of the parents.

ANALYSIS

Under the federal Individuals with Disabilities Act (20 U.S.C . §§ 1400-1419), states and local agencies receive funds from the federal government “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living . . . .” (20 U.S.C. § 1400(d)(1)(A).) This purpose is achieved through preparation and implementation of an annual individualized education program (“IEP”) for the child. (20 U.S.C. §§ 1401(11), 1414(d); 34 C.F.R. §§ 300.340-300.350 ( 2001); Ojai Unified School Dist. v. Jackson (9th Cir. 1993) 4 F.3d 1467, 1469.) The IEP is “a comprehensive statement of the educational needs . . . and the specially designed instruction and related services to be employed to meet those needs.” (Burlington School Committee v. Mass. Dept. of Education (1985) 471 U.S. 359, 368; see 20 U.S.C. § 1414(d)(1)(B); 74 Ops.Cal.Atty.Gen. 213, 215 (1991).)

The Legislature has enacted a comprehensive statutory scheme ( Ed. Code §§ 56000-56885)[ 1 All further statutory references are to the Education Code unless otherwise indicated.]1 to provide special education programs to children with disabilities consistent with and implementing the federal program. (See 83 Ops.Cal.Atty.Gen. 132 (2000).) The key statute requiring our interpretation is section 56341, which authorizes certain persons to attend a child’s IEP meeting. Section 56341 provides:

“(a) Each meeting to develop, review, or revise the individualized education program of an individual with exceptional needs shall be conducted by an individualized education program team.

“(b) The individualized education program team shall include all of the following:

“(1) One or both of the pupil’s parents, a representative selected by a parent, or both, in accordance with the Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.).

“(2) At least one regular education teacher of the pupil, if the pupil is, or may be, participating in the regular education environment. . . .

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(3) At least one special education teacher of the pupil, or if appropriate, at least one special education provider of the pupil.

“(4) A representative of the district, special education local plan area, or county office . . . .

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(5) An individual who conducted an assessment of the pupil or who is knowledgeable about the assessment procedures used to assess the pupil, and is familiar with the assessment results or
recommendations. . . .

“(6) At the discretion of the parent, guardian, or the district, special education local plan area, or county office, other individuals who have knowledge or special expertise regarding the pupil, including related services personnel, as appropriate. The determination of whether the individual has knowledge or special expertise regarding the pupil shall be made by the party who invites the individual to be a member of the individualized education program team.

“(7) Whenever appropriate, the individual with exceptional needs.”

The terms of section 56341 conform to federal law in specifying the members of the IEP meeting “team.” (See 20 U.S.C. § 1414(d)(1)(B); 34 C.F. R. § 300.344.) The question to be resolved is whether news media representatives may attend a child’s IEP meeting as observers if such attendance has the consent of the parents. We conclude that attendance by news media members would be unauthorized.

The purpose of an IEP meeting is for the persons attending to prepare, review or revise: (1) the statement of the child’s present levels of educational performance, (2) the statement of measurable annual goals related to meeting the child’s educational needs and ability to participate in the general curriculum, (3) the statement of special education services and supplementary aids and services that will be provided to the child, or (4) the explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in extracurricular activities. (20 U.S.C. § 1414(d)(1)( A); see §§ 56341.1, 56342, 56345, 56345.1.)

Under the doctrine of statutory construction known as expressio unius est exclusio alterius, ” ‘the expression of certain things in a statute necessarily involves exclusion of other things not expressed. . . .’ [Citation.]” (Dyna-Med, Inc. v. Fair Employment & Housing Commission ( 1987) 43 Cal.3d 1379, 1391, fn. 13.) Section 56341
specifies who may attend an IEP meeting; those who do not have express authorization may not attend. The word “conduct” in this context means ” to have the direction of.” (Webster’s 3d New Internat. Dict. (1971) p. 474.) The word “include” acts here as a word of limitation. ” ‘While the word “includes” may be used to broaden a specific term, it may also be used as a word of limitation.’ [Citation].” (State Compensation Ins. Fund v. Workers’ Comp Appeals Bd. (1977) 69 Cal.App.3d 884, 890; see Associated Indemnity Corp. v. Pacific Southwest Airlines (1982) 128 Cal. App.3d 898, 904.) “The governing consideration in resolving such an ambiguity is the intention of the Legislature. [Citation.]” (Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 445.)

We have examined in detail the legislative history of section 56341. (Stats. 2001, ch. 405, § 2; Stats. 1993, ch. 1296, § 14.6; Stats. 1992, ch. 106, § 2; Stats. 1988, ch. 1508, § 3; Stats. 1987, ch. 1452, § 478; Stats. 1982, ch. 1201, § 19; Stats 1981, ch. 1044, § 10; Stats. 1980, ch. 1353, § 8; Stats. 1980, ch. 797, § 9.) In 1982, the phrase “but not limited to” was deleted from the statute after the phrase “shall include.” Since 1982, then, the Legislature has intended that only those specified in section 56341 may attend an IEP meeting. This construction of section 56341 is confirmed by federal law. “This is a change from prior law, which provided, without qualification, that parents or agencies could have other individuals as members of the IEP team at the discretion of the parents or agency.” (34 C.F.R. Pt. 300, App. A, p. 113.)

As would be expected under these circumstances, the Department of Education has construed section 56341 as prohibiting attendance at an IEP meeting by those who do not meet the express statutory qualifications for attendance. “Unless unreasonable, or clearly contrary to the statutory language or purpose, the consistent construction of a statute by an agency charged with responsibility for its implementation is entitled to great deference.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 460; see People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 309; 83 Ops.Cal.Atty.Gen. 40, 44 (2000); 80 Ops.Cal.Atty.Gen. 322, 326-327 ( 1997).)

Subdivision (b)(6) of section 56341 provides the only possible authority for members of the news media to attend an IEP meeting if they have the consent of the parents.[ 2 It is not suggested that the news media members would act as the "representatives" of the parents. (§ 56341, subd. (b)(1).)]2 However, this statutory authorization has no application here. It is reserved for those who “have knowledge or special expertise regarding the pupil.” (§ 56341(b)(6); see 20 U.S.C. § 1414(d)(1)(B)(vi).)

Individuals with “knowledge or special expertise regarding the pupil” are present at the meeting to help develop, review or revise the IEP plan. They are expected to participate meaningfully in the process, contributing valuable information with the best interests of the child in mind. “Under this statutory provision, the parent’s and public agency’s right to bring individuals to the IEP meeting at their discretion must be exercised in a manner that ensures that all members of the IEP Team have the knowledge or special expertise regarding the child to contribute meaningfully to the IEP Team.” (64 Fed.Reg. 12585-12586 (Mar. 12, 1999).)

An “observer,” in contrast, would be one who observes and listens but does not participate in the meeting. (Webster’s 3d New. Internat. Dict. (1971) p. 1558.) Here, the news media members would not have “knowledge or special expertise regarding the pupil” or be able to engage in a sharing of valuable information concerning the child with the other team members. Section 56341 thus does not authorize the attendance of “observers,” whether members of the news media or not. Federal law supports our construction of section 56341 that those without knowledge or special expertise regarding the child are prohibited from attending. (34 C.F.R. Pt. 300, App. A, p. 113.)

It may be noted, however, that an IEP meeting constitutes only one level in the IEP process. This meeting has a limited focus and purpose as described above. Members of the news media, as well as members of the public, may attend the next level in the process at the discretion of the parents (§ 56501, subd. (c)(2)), which is a hearing the parents may request if they disagree with any part of the IEP that the public agency intends to implement (§ 56346). Hence, while the Legislature has followed federal law and prohibited parents from bringing in observers to an IEP meeting, it has authorized parents to bring in observers at the next level of the IEP process.[ 3 We note that a parent may make an audiotape recording of an IEP meeting by giving 24 hours prior notice to the other team members. (§ 56341.1, subd. (f)(1).)]3

We conclude in answer to the question presented that members of the news media may not attend a child’s IEP meeting as observers even though their attendance has the consent of the parents.

AG Opinion #00-906 Officials Must Not Use E-mail to Conduct Government Business (2001)

admin — Sat, 13 Jun 2009 05:09:32 +0000

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

BILL LOCKYER

Attorney General

OPINION

BILL LOCKYER

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

No. 00-906

February 20, 2001

[00-906]

THE HONORABLE WESLEY CHESBRO, MEMBER OF THE STATE SENATE, has requested an opinion on the following question:

May a majority of the board members of a local public agency e- mail each other to develop a collective concurrence as to action to be taken by the board without violating the Ralph M. Brown Act if the e-mails

are also sent to the secretary and chairperson of the agency, the e-mails are posted on the agency’s Internet website, and a printed version of each e-mail is reported at the next public meeting of the board?

CONCLUSION

A majority of the board members of a local public agency may not e-mail each other to develop a collective concurrence as to action to be taken by the board without violating the Ralph M. Brown Act even if the

e-mails are also sent to the secretary and chairperson of the agency, the e-mails are posted on the agency’s Internet website, and a printed version of each e-mail is reported at the next public meeting of the board.

ANALYSIS

The Ralph M. Brown Act (Gov. Code, §§ 54950-54962; “Brown Act”)[

1 All references hereafter to the Government Code are by section number only. ]1 generally requires the legislative body of a local public agency to hold its meetings open to the public. (§§ 54951, 54952, 54953, 54962 .) Agendas of the meetings must be posted (§§ 54954.1, 54954.2), and members of the public must be given an opportunity to address the legislative body on any agenda item of interest to the public (§ 54954.3).

The purposes of the Brown Act are thus to allow the public to

attend, observe, monitor, and participate in the decision-making process at the local level of government. Not only are the actions taken by the legislative body to be monitored by the public but also the deliberations leading to the actions taken. (See Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373, 375; Frazer v. Dixon Unified School Dist. (1993) 18 Cal. App.4th 781, 795-797; Stockton Newspaper, Inc. v. Redevelopment Agency ( 1985) 171 Cal.App.3d 95, 100; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 45.) “The term ‘deliberation’ has been broadly construed to connote ‘not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.’ [Citation.]” (Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234; see Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 376.)

The question presented for resolution concerns e-mail messages between members of the board of a local public agency. May a majority of the members e-mail each other to develop a collective concurrence as to action to be taken by the board without violating the Brown Act if the e-mails are sent to the secretary and chairperson of the agency, the e-mails are posted on the agency’s Internet website, and a printed version of each e-mail is reported at the next public meeting of the agency? We conclude that such conditions would not be sufficient to prevent a violation of the Brown Act.

The statute governing our discussion is section 54952.2, subdivision (b), which provides:

“Except as authorized pursuant to Section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited.”

Section 54953 concerns the use of teleconferencing procedures and has no application to the situation presented herein.

In analyzing the language of section 54952.2, we may apply well recognized principles of statutory construction. We are to “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ( DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) “The words of the statute are the starting point.” (Wilcox v. Birtwhistle ( 1999) 21 Cal.4th 973, 977.) “Words used in a statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . .” (Lungren v. Deukmejuan (1988) 45 Cal.3d 727, 735.)

Applying these rules of construction to the terms of subdivision (b) of section 54952.2, we find that the sending of e-mails would be the “use of . . . technological devices.” The statutory prohibition applies to such use “by a majority of the members of the legislative body.” Anything less than a majority is not covered by the statute. (See Roberts v. City of Palmdale, supra, 5 Cal.4th at pp. 375- 377; Frazer v. Dixon Unified School Dist., supra, 18 Cal.App.4th at p. 797.) Here, we are given that a majority of the board members are sending e-mails to each other.

As for the requirement that the e-mails be employed “to develop a collective concurrence as to action to be taken on an item,” we note that such activity would include any exchange of facts (see Roberts v. City of Palmdale, supra, 5 Cal.4th at pp. 375-376; Frazer v. Dixon Unified School Dist., supra, 18 Cal.App.4th at p. 796) or, as we have previously explained in our pamphlet on the Brown Act, substantive discussions “which

advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise amongst members, or advance the ultimate resolution of an issue” (Cal. Dept. of Justice, The Brown Act, Open

Meetings For Local Legislative Bodies (1994), p. 12) regarding an agenda item.

We find no distinction between e-mails and other forms of

communication such as leaving telephone messages or sending letters or memorandums. If e-mails are employed to develop a collective concurrence by a majority of board members on an agenda item, they are subject to the prohibition of section 54952.2, subdivision (b). Application of the statute in such circumstances furthers the “broad policy of the act to ensure that local governing bodies deliberate in public.” (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 373; see Frazer v. Dixon Unified School Dist., supra, 18 Cal.App.4th at pp. 794-795; Stockton Newspapers, Inc. v. Redevelopment Agency, supra, 171 Cal.App.3d at p. 100; Sacramento Newspaper Guild v. Sacramento County Board of Suprs., supra, 263 Cal.App. 3d at p. 45).

We recognize that the three conditions of (1) concurrently sending copies of the e-mails to the secretary and chairperson of the agency, (2) concurrently posting the e-mails on the agency’s Internet website, and (3) reporting the contents of the e-mails at the agency’s next public meeting would allow the deliberations to be conducted “in public” to some extent. Nevertheless, the deliberations would not be conducted as contemplated by the Brown Act. Members of the public who do

not have Internet access would be unable to monitor the deliberations as they occur. All debate concerning an agenda item could well be over before members of the public could be given an opportunity to participate in the decision-making process. (See Frazer v. Dixon Unified School Dist., supra, 18 Cal.App.4th at p. 794; Cal. Dept. of Justice, The Brown Act, Open Meetings For Local Legislative Bodies, supra, p. 12.) Subdivision (b) of section 54952.2 is straightforward and unambiguous. The proposed conditions satisfy neither the specific language nor all the critical purposes of the statute.

We thus conclude that a majority of the board members of a local public agency may not e-mail each other to develop a collective

concurrence as to action to be taken by the board without violating the Brown Act even if the e-mails are also sent to the secretary and

chairperson of the agency, the e-mails are posted on the agency’s Internet website, and a printed version of each e-mail is reported at the next

public meeting of the board.

AG Opinion #01-307 Teachers Can Wear Political Buttons at Back-to-School Night(2001)

admin — Sat, 13 Jun 2009 05:08:07 +0000

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL
State of California

BILL LOCKYER
Attorney General

OPINION
of
BILL LOCKYER

Attorney General
ANTHONY S. Da VIGO
Deputy Attorney General
:
No. 01-307

July 12, 2001

THE HONORABLE JACK SCOTT, MEMBER OF THE STATE SENATE, has requested an opinion on the following question:

May a school district prohibit teachers from wearing political buttons while attending Back-to-School Night, an annual event where teachers meet with parents to discuss the curriculum and related matters for the coming school year?

CONCLUSION

A school district may not prohibit teachers from wearing political buttons while attending Back-to-School Night, an annual event where teachers meet with parents to discuss the curriculum and related matters for the coming school year.

ANALYSIS

The question presented for resolution concerns a school event during which teachers meet with parents shortly after the beginning of the school year. The event, known as Back-to-School Night, allows the teachers and parents to discuss the curriculum, grading standards, classroom policies and procedures, and related matters. The teachers are considered to be “on duty” in the sense that their attendance is normally required and compensated by the school district.1
May a school district prohibit its teachers from wearing political buttons while attending Back-to-School Night? In contrast to the authority of district officials to prohibit the wearing of political buttons when the teachers are in their classrooms instructing their students (see California Teachers Assn. v. Governing Board (1996) 45 Cal.App.4th 1383, 1388-1392; 77 Ops.Cal.Atty.Gen. 56, 63-64 (1994)), we conclude that such a prohibition with respect to Back-to-School Night would be unconstitutional.2

First, with respect to the statutory provisions governing the political rights of school employees (Ed. Code, §§ 7050-7057),3 “[t]he Legislature finds that political activities of school employees are of significant statewide concern” and that “[t]he provisions of this article [§§ 7050-7057] shall supersede all provisions on this subject in any city, county, or city and county charter as well as in the general law of this state” (§ 7050).

Section 7052 establishes the general prohibition against restricting the political rights of school employees:

“Except as otherwise provided in this article, or as necessary to meet requirements of federal law as it pertains to a particular employee or employees, no restriction shall be placed on the political activities of any officer or employee of a local agency.”4

Section 7055 specifically authorizes the placement of restrictions on political activities in two situations:
“The governing body of each local agency may establish rules and regulations on the following:
“(a) Officers and employees engaging in political activity during working hours.
“(b) Political activities on the premises of the local agency.”
“By its terms, section 7055 plainly gives school districts the power to restrict political speech during working hours.” (California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th at p. 1387.) Section 7055 also permits regulation of political activities occurring on school premises. Hence, section 7055 on its face generally permits the adoption of a rule or regulation restricting the political activities of school teachers.

Would such a prohibition, as applied to an assembly of adults at Back-to-School
Night, by a school district pursuant to the terms of section 7055 be consistent with the United States and California Constitutions? The First Amendment of the United States Constitution provides: “Congress shall make no law . . . abridging the freedom of speech . . . .” This restriction against the exercise of federal power is applicable to state and local agencies by virtue of the due process clause of the Fourteenth Amendment. (See Lee v. Weisman (1992) 505 U.S. 577, 580.) Article I, section 2, subdivision (a) of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” While the California Constitution has been held to afford greater protection than the First Amendment (Robins v. Pruneyard Shopping Center (1970) 23 01-307 4 Cal.3d 899, 908), the “power to impose . . . restrictions on [expressive] activity is nonetheless measured by federal constitutional standards.” (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1572-1573; see U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1164-1165).
Because we believe that the conclusion here would be the same under either the federal or state Constitution (see, e.g., California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th at p. 1391; DiBona v. Matthews (1990) 220 Cal.App.3d 1329, 1346), we will rely on federal and state cases interchangeably in our discussion.

In Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S.
503, the basic principles regarding the First Amendment rights of teachers and students were stated as follows:

“First Amendment rights, applied in light of the special characteristics of the school environment are available to teachers and students. It can hardly be said that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . .

“. . . On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. . . .” (Id. at pp. 506-507.)

Where the speech by a teacher or student might be considered as coming from the school district itself, the district has greater latitude in restricting First Amendment activity. (Downs v. Los Angeles Unified School District (9 th Cir. 2000) 228 F.3d 1003, 1009; California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th at p. 1388.) School authorities may refuse to allow speech that might reasonably be perceived as associating “the school with any position other than neutrality on matters of political controversy.” (Hazelwood School Dist. v. Kuhlmeier (1988) 484 U.S. 260, 272; accord, California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th at p. 1388; 77 Ops.Cal.Atty.Gen., supra, at p. 62.) Moreover, it has long been recognized that a government agency has far broader powers in regulating the speech of its employees than regulating the speech of the general citizenry. As explained in the plurality opinion of Justice O’Connor in Waters v. Churchill (1994) 511 U.S. 661, 674-675:

“. . . [T]he extra power the government has in this area comes from the nature of the government’s mission as employer. Government agencies are charged by law with doing particular tasks as effectively and efficiently as 01-307 5 possible. When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her. . . .

“The key to First Amendment analysis of government employer decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.”

In California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th 1383, the court distinguished between the situations where the teachers were wearing political buttons while teaching their students and where the teachers were not providing instruction to their pupils. The court observed:

“We find the district has the power to prevent its employees from wearing political buttons in its classrooms and when they are otherwise engaged in providing instruction to the district’s students. On the other hand we find the district has no such power when its employees are not engaged in instructional activities.” (Id. at p. 1385.)

In striking a balance between the First Amendment rights of the teachers and the legitimate needs of a school district to achieve its educational goals (id. at pp. 1387-1388), the court observed:

“. . . [W]hen public school teachers and administrators are teaching students, they act with the imprimatur of the school district which employs them and ultimately with the imprimatur of the state which compels students to attend their classes. [Citations.] Indeed, it is the state’s willingness to lend its power and financial support to elementary and secondary education which in fact gives teachers the opportunity and authority to mold young and impressionable minds.

“. . . The school’s imprimatur is not a distinct or easily isolated portion of a teacher’s classroom role. Rather, the considerable resources schools spend in attempting to create trust, obedience and admiration for teachers operate with every instruction, request or question a teacher asks of his or her pupils. [Citations.] In this intimate and deferential environment, public school authorities may reasonably conclude it is not possible to both permit instructors to engage in classroom political advocacy and at the same time successfully dissociate the school from such advocacy. In short the very attributes of a successful teacher/student relationship make it reasonable for school authorities to conclude the only practical means of dissociating a school from political controversy is to prohibit teachers from engaging in political advocacy during instructional activities.” (Id. at p. 1390.)

The court relied upon the Supreme Court’s decision in L.A. Teachers Union v. L.A. City Bd. of Ed. (1969) 71 Cal.2d 551, in contrasting a district’s control over the First Amendment rights of teachers exercised outside the classroom:

“Next we turn to noninstructional settings. In this area we are governed by the holding in L.A. Teachers, supra, 71 Cal.2d at page 561.

“In L.A. Teachers a teachers’ union asked for permission to circulate a petition opposing reduction in financing for higher education. The union proposed circulating the petition among teachers during off-duty lunch hours on school premises. In upholding their right to do so, the court stated:

‘Harmony among public employees is undoubtedly a legitimate governmental objective as a general proposition [citation]; however, as we have seen, government has no interest in preventing the sort of disharmony which inevitably results from the mere expression of controversial ideas. [Citations.] It cannot seriously be argued that school officials may demand a teaching faculty composed either of unthinking “yes men” who will uniformly adhere to a designated side of any controversial issue or of thinking individuals sworn never to share their ideas with one another for fear they may disagree and, like children, extend their disagreement to the level of general hostility and uncooperativeness.’ [Citation.]

“Accordingly, under L.A. Teachers, school employees have the right to express to each other their respective political viewpoints on school property. Although, like the court in Tinker, the court in L.A. Teachers did not directly address the question of whether the teachers’ activities might be attributed to the schools, we believe that consideration of this question would not have altered the result the court reached in L.A. Teachers. The relationship between coemployees has none of the elements of power and influence which exist between elementary and secondary school students and their instructors. Thus when teachers and other district employees express their political views to each other, there is very little risk their views will be unduly influential and thereby implicitly attributed to the school district.

“Thus the school’s ban on political advocacy cannot be enforced in noninstructional settings.” (Id. at p. 1392.)

The court therefore concluded:
“Under these circumstances there is no risk that we will invade the legitimate policy making prerogatives of [the] district by holding that as applied to noninstructional settings [the] district’s regulation is unconstitutional but that in instructional settings it may be enforced. [Citations.]” (Id. at p. 1393.)

We believe that the court’s analysis in California Teachers may be readily applied to the Back-to-School Night program. The event does not involve an instructional setting for pupils of the district. Rather, the parents are in attendance to show support for their children’s educational activities. In this setting, it reasonably need not be feared that “young and impressionable minds” will be unduly influenced by teachers wearing political buttons or that the parents will believe that the teachers’ political buttons reflect the views of the district’s governing board or other school officials. Specifically, there would be very little risk that even if some parents disagreed with the content of a particular political button, they would “‘like children, extend their disagreement to the level of general hostility and uncooperativeness.’” (California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th at p. 1392.)

We conclude that a school district may not prohibit teachers from wearing political buttons while attending Back-to-School Night, an annual event where teachers meet with parents to discuss the curriculum and related matters for the coming school year.

1 The Back-to-School Night program is widely conducted throughout the country. In Bellmore-Merrick, etc. v. Bellmore-Merrick, etc. (1975) 378 N.Y.S.2d 881, 885, the court observed:
“. . .[T]he longstanding conduct of the parties establishes quite plainly that attendance at the Back-to-School Night is an activity which the parties have considered to be an integral part of the professional duties of the teachers and the teachers do not have the option to refuse to participate therein.
“That this extracurricular activity has been so viewed by the parties is not at all surprising for the day in which the concept was held that the teaching duty was limited to classroom instruction has long since passed and teachers are well aware of the fact that there are some activities within the scope of their professional responsibilities which must be performed after the close of the regular school session.”

2 We may assume for our purposes that the political buttons in question would be of the same type considered in California Teachers Assn. v. Governing Board, supra, 45 Cal.App.4th 1383.

3 All references hereafter to the Education Code are by section number only.

4 The clause concerning the requirements of federal law pertains to positions for which federal funds are obtained. However, we are informed that in making funds available to local school districts, the practice of the federal government has been to waive any applicable federal restrictions. “Local agency” is defined in section 7051 to include “an elementary, high, or unified school district. . . .”

AG Opinion #98-211 School Dissemination of Sex Offender Information (1999)

admin — Sat, 13 Jun 2009 05:06:24 +0000

BILL LOCKYER, Attorney General; CLAYTON P. ROCHE, Deputy Attorney General

No. 98-211

Office of the Attorney General of the State of California

March 1, 1999

THE HONORABLE WESLEY CHESBRO, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following questions:

1.Does a school district have a duty to disclose information received from a law enforcement official concerning the presence of a sex offender in its community?

2.Does a school district have a duty to disclose information received from a parent or employee concerning the presence of a sex offender in its community?

3.Does a school district have a duty to review CD-ROM information when it has notice of the presence of a sex offender in its community?

4.May a school district disclose information it has received from a law enforcement official concerning the presence of a sex offender in its community?

5.May a school official be subject to sanctions when information relating to a sex offender is improperly used or improperly disclosed?

CONCLUSIONS

1.A school district does not have a mandatory duty but may disclose information received from a law enforcement official concerning the presence of a sex offender in its community if the information is disclosed in the manner and to the extent authorized by the law enforcement agency.

2.A school district does not have a mandatory duty but may disclose information received from a parent or employee concerning the presence of a sex offender in its community; however, the district will not have immunity for disclosing information that was not obtained from a law enforcement agency.

3.A school district does not have a mandatory duty but may review CD-ROM information when it has notice of the presence of a sex offender in its community.

4.A school district may disclose information it has received from a law enforcement official concerning the presence of a sex offender in its community to protect students at risk if the dissemination is made in the manner and to the extent authorized by the law enforcement agency.

5.A school official may be subject to sanctions when information relating to a sex offender is improperly used or improperly disclosed.

ANALYSIS

California’ s version of what is commonly known as Megan’ s Law[FOOTNOTE 1] is contained in sections 290 and 290.4 of the Penal Code.[FOOTNOTE 2] Essentially, section 290 requires persons who have been convicted of specified sex offenses and are no longer incarcerated to be registered with the appropriate law enforcement agency where he or she resides or is located.

When a peace officer “reasonably suspects” that a child or other person may be “at risk” from a sex offender, a law enforcement agency may release detailed information it deems relevant and necessary to persons, agencies, or organizations the offender is “likely to encounter.” These include “[p]ublic and private educational institutions, day care establishments” and “[o]ther community members at risk.” (§ 290, subd. (m)(1).)

Besides the registration and disclosure provisions of section 290, additional protection is provided to the public under the terms of section 290.4. Pursuant to the latter statute, the Department of Justice (“Department” ) must continually compile information concerning individuals required to register under section 290 and operate a “900″ telephone number that interested parties may call to inquire if a named individual is listed in its compilation. The Department is also to provide a CD-ROM or similar electronic medium containing the sex offenders’ registration information to sheriffs’ departments and to municipal police departments in cities with a population of more than 200,000. The Department and local law enforcement agencies are to make the CD-ROM or other electronic information available to the public for viewing with the understanding that “the release of the information is to allow members of the public to protect themselves and their children from sex offenders,” and is not obtained to discriminate against or harass any registrant. (§ 290.4, subd. (a)(4)(A).)

We are asked five questions concerning the responsibilities of school districts under the terms of California’ s version of Megan’ s Law.

1.Duty To Disclose Information Received From Law Enforcement Officials

The first question presented is whether a school district has a duty to disclose information concerning registered sex offenders which it has received from law enforcement officials. We conclude that no mandatory duty exists but that a school district may disclose such information in the manner and to the extent authorized by the law enforcement agency (§ 290, subds. (m)(3), (n)(4)), and if it does so in good faith, it is immune from civil liability (§ 290, subd. (p)(2)).

Looking initially at sections 290 and 290.4, we find that disclosure of information by law enforcement officials to agencies such as school districts is “to allow members of the public to protect themselves and their children from sex offenders.” (§ 290, subd. (m)(5).) Section 290 does not mandate school districts to take any action with respect to sex offender information provided to them by a law enforcement agency. The statute is silent in this respect; no statutory duty to disclose is imposed upon school districts.

If a school district believes it advisable to inform those “at risk” of a particular sex offender’ s presence in the community, it may do so. The law contemplates that school officials will work with law enforcement officials regarding the manner and extent of disseminating relevant information. However, such decision would be within the sound discretion of school district officials.

Looking at other provisions of law, we note that article 1, section 28, subdivision (c) of the Constitution provides:

“Right to Safe Schools. All students and staff of primary, elementary, junior high and senior high schools have an inalienable right to attend campuses which are safe, secure and peaceful.”

This constitutional provision was examined by the court in Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1236-1238:

” Under article I, section 26, of the California Constitution, all provisions of the state Constitution ‘ are mandatory and prohibitory, unless by express words they are declared to be otherwise.’ Unquestionably, section 28, subdivision (c), is mandatory. Thus, all agencies of government are required to comply with it, and are prohibited from taking official actions which violate it or contravene its provisions. [Citations.]

“However, it is an entirely different matter to conclude that section 28, subdivision (c), is self-executing in the sense that it establishes an affirmative duty to act on the part of school districts, provides remedies for its violation, or creates a private cause of action for damages.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“As stated in the recent opinion of the Court of Appeal, Third Appellate District, in Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d 1448, with which we are in agreement, ‘ section 28(c) declares a general right without specifying any rules for its enforcement. It imposes no express duty on anyone to make schools safe. It is wholly devoid of guidelines, mechanisms, or procedures from which a damages remedy could be inferred. Rather, “‘ it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.’ ” [Citation.]‘ (Id., at p. 1455, fn. omitted.) There is nothing in the legislative history of section 28, subdivision (c), to suggest that it was intended to create a civil action for damages or an affirmative duty to insure that schools are free from all risk of crime and violence. The right proclaimed in section 28, subdivision (c), although inalienable and mandatory, simply establishes the parameters of the principle enunciated; the specific means by which it is to be achieved for the people of California are left to the Legislature.

“Thus, we conclude that section 28, subdivision (c), is not self- executing, in the sense that it does not provide an independent basis for a private right of action for damages. Neither does it impose an express affirmative duty on any government agency to guarantee the safety of schools. [Citations.]” (Fns. omitted; italics added.)

Accordingly, this constitutional provision does not mandate disclosure of information by school officials in the described circumstances.

We have also examined the general provisions of the Education Code (see, e.g., § § 44807, 44808) and find nothing therein that would require a school district to disclose information it has received from law enforcement officials or anyone else with regard to the presence of sex offenders in its community. In a long line of cases, the courts have found no mandatory duty on the part of school districts to take the types of steps necessary to insure “the physical safety of their students” as is contemplated here. (See Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747; Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 129-137; Skinner v. Vacaville Unified School District (1995) 37 Cal.App.4th 31, 37-43; Clausing v. San Francisco Unified School Dist., supra, 221 Cal.App.3d at 1238-1241; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1454-1463; Tirpak v. Los Angeles Unified School Dist. (1986) 187 Cal.App.3d 639, 642-644; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 798-805; Keech v. Berkeley Unified School Dist. (1984) 162 Cal.App.3d 464, 468-469; Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 499-500; Wright v. Arcadia School District (1964) 230 Cal.App.2d 272, 278.)

We conclude in answer to the first question that a school district does not have a mandatory duty to disclose information received from a law enforcement official concerning the presence of a sex offender in its community. It may do so, however, in the manner and to the extent authorized by the law enforcement agency, and if it does so in good faith, it is immune from civil liability.

2. Duty To Disclose Information Received From Parents or Employees

The second question presented is whether a school district has a duty to disclose information received from a parent or employee regarding the presence of a sex offender in its community. We conclude that there is no mandatory duty but the district may disclose the information.

The reasoning with respect to question one is equally applicable here. No constitutional provision or statute mandates the disclosure of the subject information by a school district. Accordingly, whether the school district elects to disclose information concerning the presence of a sex offender received from a parent or employee lies within the sound discretion of school officials. The law contemplates that school officials will cooperate with law enforcement agencies in disseminating relevant information to protect public safety, especially the safety of the school’ s students.

We conclude in answer to the second question that a school district does not have a mandatory duty but may disclose information received from a parent or employee concerning the presence of a sex offender in its community. However, a school district will have civil immunity only if the information being disclosed was obtained from a law enforcement agency. (§ 290, subd. (p)(2).)

3. Possible Duty To Review CD-ROM Information on Sex Offenders

As noted at the outset, section 290.4 requires the Department to maintain a continuing compilation of sex offender information on a CD-ROM or other electronic medium that it distributes to sheriffs’ offices and to police departments of cities with a population of more than 200,000. We are asked whether a school district is under a duty to review these CD-ROMs when it has notice of the residence of a sex offender. We conclude that there is no mandatory duty but a school district may do so.

Our analysis of the first question is equally applicable to this question as well. Section 290.4 does not impose a legal duty upon school districts to examine CD-ROM information. The CD-ROM compilations are to “be used only for law enforcement purposes and the public safety purposes specified in [section 290.4] and Section 290″ and “[a] person is authorized to use the information disclosed pursuant to this section only to protect a person at risk.” (§ 290.4, subds. (c), (e)(1).)

We conclude that a school district does not have a mandatory duty but may inspect the information compiled on the Department’ s CD-ROMs to insure the safety of its students. The law contemplates that school officials will work with law enforcement agencies in protecting the public, particularly the safety of their students.

4. Disclosure of Information on Sex Offenders Received From Law Enforcement Officials

The fourth question presented is whether a school district may disclose information it has received from law enforcement officials concerning the presence of a registered sex offender in its community. We conclude that a school district may do so.

Law enforcement agencies may, pursuant to section 290, subdivision (m), disclose specified facts about serious sex offenders when the agency has determined that a child or other person may be at risk from the sex offender, if the agency finds the information is relevant and necessary to protect the public. When a law enforcement agency makes such a disclosure to a school or school district, it may authorize the school or school district receiving the information to disclose the information to additional persons. The agency is required to determine whether further disclosure by the school or school district meets the requirements of section 290, subdivision (m)(1) [reasonable suspicion that the information is needed to protect a person at risk]. The law enforcement agency is then required to identify the appropriate scope of further disclosure. (§ 290, subd. (m)(2).) The school or school district may disclose the information provided by the law enforcement agency in the manner and to the extent authorized by the agency. (§ 290, subd. (m)(3).)

When a law enforcement agency has made a disclosure about a high-risk sex offender to a school or school district, the school or school district may disclose that information to others in the manner and to the extent authorized by the law enforcement agency. (§ 290, subd. (n)(4).)

Any public or private educational institution, or employee thereof, which in good faith disseminates information provided by a law enforcement agency or employee of the agency, when the information provided is disseminated as authorized by the law enforcement agency, is immune from civil liability. (§ 290, subd. (p)(2).)

We conclude that a school district may disclose information it has received from law enforcement officials concerning the presence of a registered sex offender in its community to protect students at risk if the dissemination is made in the manner and to the extent authorized by the law enforcement agency.

5. Improper Disclosure of Information

The final question presented is whether a school official may be subject to sanctions when information relating to a sex offender is improperly used or improperly disclosed by him or her. We conclude that such official may be subject to sanctions.

Subdivision (q) of section 290 provides:

“Any person who uses information disclosed pursuant to this section to commit a felony shall be punished, in addition and consecutive to any other punishment, by a five-year term of imprisonment in the state prison. Any person who uses information disclosed pursuant to this section to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000).”

Section 290.4 provides in relevant part:

” .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(b)(1) Any person who uses information disclosed pursuant to this section to commit a felony shall be punished, in addition and consecutive to, any other punishment, by a five-year term of imprisonment in the state prison.

“(2) Any person who, without authorization, uses information disclosed pursuant to this section to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than five hundred dollars ($500) and not more that one thousand dollars ($1,000).

“(c) The record of the compilation of offender information on each CD- ROM or other electronic medium distributed pursuant to this section shall be used only for law enforcement purposes and the public safety purposes specified in this section and Section 290. This record shall not be distributed or removed from the custody of the law enforcement agency that is authorized to retain it. Information obtained from this record shall be disclosed to a member of the public only as provided in this section or Section 290, or any other statute expressly authorizing it.

“Any person who copies, distributes, discloses, or receives this record or information from it, except as authorized by law, is guilty of a misdemeanor, punishable by; imprisonment in a county jail not to exceed six months or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. This subdivision shall not apply to a law enforcement officer who makes a copy as part of his or her official duties in the course of a criminal investigation, court case, or as otherwise authorized by subdivision (n) of Section 290. This subdivision shall not prohibit copying information by handwriting.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(e)(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(3)(A) Any use of information disclosed pursuant to this section for purposes of other than those provided by paragraph (1) of subdivision (e) or in violation of paragraph (2) of subdivision (e) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney’ s fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”

Accordingly, we conclude in answer to the fifth question that a school official may be subject to sanctions when information relating to a sex offender is improperly used or improperly disclosed by him or her. However, when information disclosed by a law enforcement agency to the school official is disclosed to third parties in the manner and to the extent authorized by the law enforcement agency, the school official is immune from civil liability. (§ 290, subd. (p)(2).)

::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::

FN1. Following public reaction to the abduction, rape, and murder of seven-year-old Megan Kanka in 1994, New Jersey enacted the Registration and Notification of Release of Certain Offenders Act, commonly known as “Megan’ s Law.” The man who later confessed to Megan’ s murder in New Jersey lived across the street from the Kanka family and, unknown to the community, had twice been convicted of sex offenses involving young girls. An additional 48 states have followed New Jersey in adopting a form of Megan’ s Law.

FN2. All section references herein are to the Penal Code unless otherwise noted.

AG Opinion #97-1207 Participation by elected officials in committee meetings when they aren’t members (1998)

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ATTORNEY GENERAL’S OPINION 97-1207

April 29, 1998

THE HONORABLE QUENTIN L. KOPP, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following questions:

1. May members of the legislative body of a local public agency ask questions or make statements while attending a meeting of a standing committee of the legislative body “as observers”?

2. May members of the legislative body of a local public agency sit in special chairs on the dais while attending a meeting of a standing committee of the legislative body “as observers”?

CONCLUSIONS

1. Members of the legislative body of a local public agency may not ask questions or make statements while attending a meeting of a standing committee of the legislative body “as observers.”

2. Members of the legislative body of a local public agency may not sit in special chairs on the dais while attending a meeting of a standing committee of the legislative body “as observers.”

ANALYSIS

The Ralph M. Brown Act (Gov. Code, §§ 54950-54962; “Act”)[ 1 All references hereafter to the Government Code are by section number only.]1 requires the “legislative body” of a “local agency” to hold its meetings open to the public unless a specific statutory exemption is applicable (see §§ 54951, 54952, 54953, 54962). A notice of all such meetings as well as an agenda of matters to be discussed must be provided to the public. (§§ 54954.1, 54954.2.) Members of the public are permitted not only to attend the meetings but are granted the right to directly address the legislative body on any item within its jurisdiction . (§ 54954.3.)

In 79 Ops.Cal.Atty.Gen. 69 (1996), we concluded that a fourth member of a seven-member legislative body could not attend a meeting of one of its standing committees without violating the notice, agenda, and public participation requirements of the Act applicable to the meetings of the legislative body itself. The fourth member would constitute the presence of a quorum of the entire legislative body and result in a ” meeting” of the legislative body as that term is defined in the Act. (Id., at pp. 73-74.)

In 1997 the Legislature responded to our 1996 opinion (Stats. 1997, ch. 253, § 1) by adding subdivision (c)(6) to section 54952.2, excluding the following situation from the definition of “meeting” for purposes of the Act:

“The attendance of a majority of the members of a legislative body at an open and noticed meeting of a standing committee of that body, provided that the members of the legislative body who are not members of the standing committee attend only as observers.” (Italics added.)

It is the phrase “only as observers” that gives rise to the two questions presented for resolution.

1. Questions or Statements

We are first asked whether the members of a legislative body of a local public agency may ask questions or make statements while attending meetings of one of their standing committees “as observers.” We conclude that they may not do so.

In analyzing the language of section 54952.2, we apply well recognized principles of statutory construction. “To interpret statutory language, we must ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citation.]” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 632.) “‘[E]very word and phrase employed [in a statute] is presumed to be intended to have meaning and perform a useful function . . . [and] a construction rendering some words in the statute useless or redundant is to be avoided.’ [Citation.]” (People v. Contreras (1997) 55 Cal.App.4th 760, 764.) The words of a statute are to be given “‘a plain and commonsense meaning.’ [Citations.]” (People v. Valladoli ( 1996) 13 Cal.4th 590, 597.) “‘Statements in legislative committee reports concerning the statutory purposes which are in accordance with a reasonable interpretation of the statute will be followed by the courts . . . .’ [Citation.]” (O’Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 334; see People v. Cruz (1996) 13 Cal.4th 764,773-774, fn. 5.)

The term “observer” commonly means in this context “a representative sent to observe and listen but not to officially participate in a gathering.” (Webster’s New Internat. Dict. (3d ed. 1961) p. 1558). Accordingly, we believe that the Legislature, having used the word “only” in conjunction with the words “as observers,” intended to limit attendance in these circumstances to watching and listening without further participation. Those intending to qualify as observers under subdivision (c)(6) of section 54952.2 must refrain from asking questions or making statements.[ 2 Of course, if they wish to participate in the meeting, they may do so by having the meeting noticed as a meeting of the full legislative body.]2 Any conduct other than observing and listening would transcend the statutory authorization, as interpreted under the ” plain and commonsense meaning” rule.

The legislative history of the 1997 amendment of section 54952. 2 fully supports our “plain meaning” interpretation of the words used by the Legislature. The committee reports contain numerous references to the exceedingly limited role of an

“observer” in comparison to the rights of a member of the standing committee or of a member of the general public. Attendance, without more, was what the Legislature intended to sanction.[ 3 Mere attendance would otherwise be proscribed because it would constitute "participation" in the meeting through the receipt of information.]3

Finally, the general purposes of the Act are to ensure not only that any final actions by legislative bodies of local public agencies are taken in a meeting to which the public has advance notice but also that any deliberations with respect thereto are conducted in public as well . (§§ 54950, 54952.2; see Stockton Newspaper, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 100-103; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234; Sacramento Newspaper Guild v. Sacramento County Bd. of Supers. (1968) 263 Cal.App.2d 41, 47-51.) ” Deliberations” here would include mere attendance, resulting in the receipt of information. As stated in Frazer v. Dixon Unfiied School Dist. (1993) 18 Cal.App.4th 781, 794: “. . . Deliberation in this context connotes not only collective decision making, but also ‘the collective acquisition and exchange of facts preliminary to the ultimate decision.’ [ Citations.]” Thus without the special exemption for “observers,” the mere attendance at the meeting by a quorum of the legislative body would constitute a violation of the Act. To permit observers to testify and ask questions would let them fully participate in the deliberations of the standing committee, rendering virtually meaningless their restricted status as attending “only as observers.”

Accordingly, based upon the plain language of section 54952.2, the legislative history of its recent amendment, and the general purposes of the Act, we conclude that members of the legislative body of a local public agency may not ask questions or make statements while attending a meeting of a standing committee of the legislative body “as observers.” Attendance is a limited one in such circumstances, restricted to watching and listening.

2. Placement of Observers

The second question presented is whether legislative body members attending a meeting of a standing committee “only as observers” may sit in special chairs on the dais. We conclude that they must sit in the area designated for members of the public who are attending the meeting.

The primary legislative purpose in adding subdivision (c)(6) to section 54952.2 was to permit legislative body members to attend standing committee meetings. On granting

such authorization, however, the Legislature made clear that such observers were to be accorded no special privileges. Indeed, such observers have fewer rights than members of the general public attending the meetings, since as observers they may make no statements or ask questions.

To permit legislative body observers to sit on the dais would grant them greater rights than members of the public. It could also create the impression that the standing committee meeting constituted a meeting of the legislative body itself. Having the observers sit in the area designated for members of the general public would eliminate any confusion as to their role in the proceedings and effectuate the Legislature’s intent of not granting special privileges to those attending ” only as observers.”

We conclude that members of the legislative body of a local public agency may not sit in special chairs on the dais while attending a meeting of a standing committee of the legislative body “as observers.”

AG Opinion #97-1005 Campaigning in Multiple Dwelling Complexes (1998)

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AG Opinion No. 97-1005

Free Speech: Campaigning in Multiple Dwelling Complexes

OPINION of DANIEL E. LUNGREN, Attorney General;
GREGORY L. GONOT, Deputy Attorney General

In the Office of the Attorney General of the State of California filed February 13, 1998, the honorable Dick Ackerman, member of the California State Assembly, has requested an opinion on the following question: May the owner of a mobile home park, the owner of an apartment complex, or the homeowners’ association of a condominium project prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door?

CONCLUSION
The owner of a mobile home park, the owner of an apartment complex, and the homeowners’ association of a condominium project may prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door.

ANALYSIS
The question presented for resolution concerns the door-to-door distribution of campaign materials by political candidates in mobile home parks, apartment complexes, and condominium projects. The distribution of materials is unsolicited; the candidates have not been invited by the residents, and “no solicitation” signs have been placed at the front walkways. May the owners [Footnote 1] of such developments ban all door-to-door distribution of campaign materials? We conclude that they may.

We begin our analysis with the general principle that an owner of property has the right to exclude any and all persons from the property. (See Pen. Code § § 602, 602.5, 602.8; Kaiser Aetna v. United States (1979) 444 U.S. 164, 176; Desny v. Wilder (1956) 46 Cal.2d 715, 731; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1243.) The right to exclude, however, is not absolute. (See, e.g., Pen. Code § 602.8, subd. (c)(2); Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 771-772, fn. 25.)

The only exception that merits examination here [Footnote 2] is whether the political campaign materials may be distributed door-to-door as expressions of “free speech” protected by the federal or state Constitution. Freedom of expression is protected by the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment. (Stanley v. Georgia (1969) 394 U.S. 557, 559.) “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” (U.S. Const., Amend. I.) The California Constitution also protects the right of free speech. It provides: ”Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” (Cal. Const., art. I, § 2, subd. (a).)

Recently the United States Supreme Court observed that “[l]eafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment . . . .” (Schenck v. Pro-Choice Network (1997) 519 U.S. ____, 137 L.Ed.2d 1, 21.) However, the constitutional protections for such activity are aimed at preventing interference by federal, state, and local governments with expressive activity that takes place in public areas, such as public sidewalks [Footnote 3]. They do not apply to individuals on private property, except in extremely limited circumstances. (See Hurley v. Irish-American Gay Group of Boston (1995) 515 U.S. 557, 115 S.Ct. 2336, 2344; Hudgens v. NLRB (1976) 424 U.S. 507, 513; Planned Parenthood Assn. v. Operation Rescue (1996) 50 Cal.App.4th 290, 300; Judlo, Inc. v. Vons Companies (1989) 211 Cal.App.3d 1020, 1028; Cox Cable of San Diego, Inc. v. Bookspan (1987) 195 Cal.App.3d 22, 29; Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 835, 841.)

In Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1668, the court discussed the narrow protection of free speech rights in a situation where government action was not involved: ”Under the First Amendment to the federal Constitution, private individuals do not have an unqualified right to engage in free expression and assembly on private property. (Hudgens v. NLRB (1976) 424 U.S. 507, 518, 521 [no First Amendment right to picket a store in a privately owned shopping center]; Lloyd Corp v. Tanner (1972) 407 U.S. 551, 567-570 [no First Amendment right to distribute leaflets at a shopping center when the leafleting is unrelated to the shopping center' s business or operation].) However, under very limited circumstances, individuals are entitled to exercise First Amendment rights on private property that has been sufficiently devoted to public use. (Marsh v. Alabama (1946) 326 U.S. 501, 506-507 [where private property rights were held to yield to free speech rights regarding distribution of religious literature in a company-owned town, the functional equivalent of a municipality]; see Hudgens v. NLRB, supra 424 U.S. at pp. 516-521 [clarifying the narrowness of the Marsh exception, to be applicable only when the private property has assumed all the characteristics of a municipality].)

Although the United States Supreme Court has held the First Amendment does not guarantee any rights of expression on private property such as a shopping center (Lloyd Corp v. Tanner, supra, 407 U.S. 551; Hudgens v. NLRB, supra, 424 U.S. 507), it affirmed Robins v. Pruneyard Shopping Center, supra 23 Cal.3d 899, where the California Supreme Court held the California Constitution (art. I, § 2) protects the expression and petition rights of California citizens even when those rights are exercised in a privately owned shopping center. (Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 81.) More specifically, the United States Supreme Court held a state may give greater protection to individual liberties in its own constitution than is conferred by the federal Constitution. (Id. at p. 81.)” As indicated in Planned Parenthood, the federal Constitution protects freedom of expression on private property devoted to public use in a “company-owned town” (see Marsh v. Alabama (1946) 326 U.S. 501), “involv[ing] the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi- official municipal functions as a delegate of the State.” (Hudgens v. NLRB, supra, 424 U.S. at 519.)

Because mobile home parks, apartment complexes, and condominium projects do not assume such attributes or exercise such functions, the First Amendment does not afford nonresident political candidates the right to distribute campaign materials door-to-door against the wishes of the owners of such properties [Footnote 4]. Our analysis of the First Amendment is helpful but does not control our analysis of the free speech guarantees of the state Constitution, since in certain circumstances, “the California Constitution provides greater protection than its federal counterpart for freedom of speech and the press.” (Brown v. Kelly Broadcasting Company (1989) 48 Cal.3d 711, 745.)

Specifically, the First Amendment’s protection of expressive activity in company towns has been extended in California to privately owned shopping centers serving as “the suburban counterpart of the traditional town center business block.” (Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at 1670.) In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, affirmed on other grounds sub. nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, the California Supreme Court ruled that a shopping center that provided a place for large numbers of the public to congregate was subject to the free speech guarantees of the California Constitution. (Id., at pp. 909-910.)

The shopping center exception in California, however, does not apply to “the property . . . of an individual homeowner or the proprietor of a modest retail establishment (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at 910), medical office buildings with adjoining parking lots (Feminist Women’ s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1654, 1660-1661; Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at 1671-1672), the private sidewalk of a downtown bank (Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th 1623, 1629-1630), or a privately owned 150-unit apartment complex consisting of 16 buildings (Cox Cable San Diego, Inc. v. Bookspan, supra, 195 Cal.App.3d at 28-30).

In the Cox Cable case, the court explained: ”Nothing in the record suggests that the 150-unit Woodlawn apartment complex has the attributes of a quasi-municipality. The record does not indicate that Woodlawn has its own system of roads and streets, security force, parks, recreation facilities, self-government dealing with internal maintenance, security or operation of the complex or other indicia of a quasi-municipality. (Cf. Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d at p. 843, fn. 10.) ”Nor is there anything in the record to suggest that Woodlawn is a quasi-public forum like a shopping mall where the public is invited to gather. Instead, Woodlawn is a place where the public is generally excluded, where an individual can escape the public forum by retreating into his or her apartment and closing the door.” (Id., at p. 29.) Similarly, here, the owners of a mobile home park, apartment complex, and condominium project do not provide a place where large numbers of the public are invited to congregate.

The “shopping center” exception, like the “company town exception,” is thus unavailable for political candidates wishing to distribute campaign materials door-to-door against the wishes of the owners. We conclude that the owner of a mobile home park, the owner of an apartment complex, and the homeowners’ association of a condominium project may prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door.

FOOTNOTES

FN1. With respect to the common areas surrounding individually owned condominiums, the homeowners’ association may be considered the owner. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499-501; Duffey v. Superior Court (1992) 3 Cal.App.4th 425, 428-429.)

FN2. Since we are dealing with political candidates who are uninvited nonresidents, we need not consider the individual rights of the residents under various statutory schemes that are applicable to mobile home parks (e.g., Civ. Code, § § 798-799.9), apartment complexes (e.g., Civ. Code, § § 1940-1954.1), or condominium projects (e.g., Civ. Code, §§ 1350-1376).

FN3. As stated in Schenck, “speech in public areas is at its most protected on public sidewalks, a prototypical example of a tradional public forum” ; nevertheless, “[i]n some situations, a record of abusive conduct makes a prohibition on classic speech in limited parts of a public sidewalk permissible.” (Ibid.) As explained below, the situation presented here does not involve government interference with speech activity in public areas.

FN4. In Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d at 836, the court described an eight-square-mile condominium complex of 20,000 residents, with its own system of roads, security force, parks, recreation facilities, and self-government, as having attributes that “in many ways approximate a municipality . . . close to a characterization as a company town.” Nevertheless, while the court concluded that the owner of the complex could not discriminate by allowing one but not a second free newspaper to be distributed, it could deny distribution to all such newspapers equally. (Id., at p. 845.)

AG Opinion #97-414 Closed Session for Advisory Committee on Personnel (1997)

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AG Opinion No. 97-414

Brown Act: Closed Session for Advisory Committee on Personnel

OPINION of DANIEL E. LUNGREN, Attorney General;
ANTHONY DaVIGO, Deputy Attorney General

In the Office of the Attorney General of the State of California filed November 10, 1997, the Honorable Mike Thompson, member of the California State Senate, has requested an opinion on the following question: Where the board of trustees of a school district has formed a committee, known as the district liaison council, consisting of eight representatives from the community, seven employees of the district, and one student, to interview candidates for the office of district superintendent and to make a recommendation to the board, are the sessions of the committee held to perform such delegated duties required to be open to members of the public?

CONCLUSION
Where the board of trustees of a school district has formed a committee, known as the district liaison council, consisting of eight representatives from the community, seven employees of the district, and one student, to interview candidates for the office of district superintendent and to make a recommendation to the board, the sessions of the committee held to perform such delegated duties are not required to be open to members of the public.

ANALYSIS
We are advised that a school district’s board of trustees (“board”) has formed a committee, known as the district liaison council (“council”), to interview candidates for the office of district superintendent and to make a recommendation to the board. The council consists of eight representatives from the community, seven employees of the district, and one student. We are asked to determine whether the sessions of the council held to perform its delegated duties must be open to members of the public. We conclude that the council’s sessions may be closed to members of the public.

In addressing the issues presented, we will examine the open meeting requirements of the Ralph M. Brown Act (Gov. Code, §§ 54950-54962; “Act”) [Footnote 1] applicable to “legislative bodies” of “local agencies.” Section 54953, subdivision (a) provides: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.” A school district is a “local agency” as defined in section 54951: “As used in this chapter, ‘local agency’ means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency.”

Not only is a board of trustees of a school district a “legislative body,” so also may be a committee formed by a board of trustees. The term “legislative body” is defined in pertinent part in subdivision (b) of section 54952 as follows: “A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body which are less than a quorum of the legislative body are not legislative bodies, except that standing committees of the legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.” Here, inasmuch as the council was created by formal action of the board, and is not composed of any members of the board, it is a “legislative body” for purposes of the Act. (See Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 803-805; compare, 68 Ops.Cal.Atty.Gen. 34, 36 (1985).) [Footnote 2] Accordingly, the meetings of the council must be open to members of the public as required by the Act.

Although the council’s meetings must be convened in open session, what does the Act mandate with respect to the council’s delegated duties of interviewing candidates for the office of district superintendent and discussing and arriving at a recommendation to be made to the board? Section 54957 provides: “Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency . . . from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee . . . For purposes of this section, the term ‘employee’ shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. . .”

We first address the issue whether the phrase “to consider the appointment” includes the interviewing of candidates, reviewing resumes, discussing qualifications, and arriving at a decision prior to the actual appointment. The purposes for holding closed sessions under the terms of section 54957 are to foster candid discussions by members of the legislative body concerning the qualifications of staff or prospective staff members without subjecting the latter to public embarrassment. (See San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955; Edgar v. Oakland Museum Advisory Com. (1973) 36 Cal.App.3d 73, 76-77; 78 Ops.Cal.Atty.Gen. 218, 221 (1995); 63 Ops.Cal.Atty.Gen. 153, 155 (1980); 61 Ops.Cal.Atty.Gen. 283, 291 (1978).) These purposes would be served by allowing closed sessions for interviewing candidates, reviewing resumes, discussing qualifications, and arriving at a decision prior to the actual appointment. (See Joiner v. City of Sebastopol, supra, 125 Cal.App.3d at 801; 78 Ops.Cal.Atty.Gen., supra, at 222; 75 Ops.Cal.Atty.Gen. 14, 18-19 (1992); 68 Ops.Cal.Atty.Gen., supra, at 36.) [Footnote 3] Thus, the board, as the appointing body, would be entitled to hold closed sessions in interviewing candidates and reaching a decision when appointing a district superintendent.

Do the terms of section 54957 extend to committees with no powers of appointment? In 67 Ops.Cal.Atty.Gen. 112, 115-117 (1984), we concluded that when an advisory committee is conferring with counsel “in the proper course of its duties,” it is entitled to meet in closed session under the Act’s pending litigation exception. Similarly, here, as long as the purposes of section 54957 are served, we believe that its provisions extend to committees that are duly constituted and performing properly delegated duties that would otherwise be covered by the statutory language. In the present situation, it is undisputed that the council has been duly constituted as a committee; the council has also been delegated the duties that would otherwise be covered by the terms of section 54957.

Finally, we note that a district superintendent is an “employee” under the terms of section 54957. (See also Lucas v. Board of Trustees (1971) 18 Cal.App.3d 988, 990; 50 Ops.Cal.Atty.Gen. 532 (1976).) [Footnote 4] Hence, the council’s sessions held to interview candidates for the office of district superintendent and to arrive at a recommendation for the board come within the closed session provisions of section 54957. This conclusion is not inconsistent with our conclusion in 46 Ops.Cal.Atty.Gen. 34 (1965), in which we determined that a closed session may not be held where selected members of the public are allowed to attend. (Id., at p. 35.) In the matter presently considered, no “members of the public” will be in attendance, only members of the legislative body itself and the candidates for the office of district superintendent. [Footnote 5]

We conclude that where the board of trustees of a school district has formed a committee, known as the district liaison council, consisting of eight representatives from the community, seven employees of the district, and one student, to interview candidates for the office of district superintendent and to make a recommendation to the board, the sessions of the committee held to perform such delegated duties are not required to be open to members of the public. Such closure allows the council members to candidly question the candidates as to their qualifications and to freely discuss each’s qualifications without subjecting the candidates to public embarrassment.

FOOTNOTES

FN1. Undesignated section references herein are to the Government Code.

FN2. In Joiner v. City of Sebastopol, supra, 125 Cal.App.3d 799, the court considered whether a particular advisory committee was a “legislative body.” Here, the council is a “legislative body” without question.

FN3. The Act has special rules for discussing the compensation of officers and employees. (See §§ 54957, 54957.6.)

FN4. In 68 Ops.Cal.Atty.Gen. 34, supra, we addressed the distinction between an officer and an employee for purposes of the open meeting laws then applicable to state agencies. Here, it must be conceded that the district superintendent is an “employee” for purposes of the Act.

FN5. It may also be observed, for example, that witnesses may attend closed sessions to present factual information to the legislative body; they would not be present as “members of the public” but rather as percipient witnesses.

AG Opinion #99-301 Disclosure of County Officer’s Personal Tax Lien Details (1999)

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OPINION of BILL LOCKYER, Attorney General; Anthony M. Summers , Deputy Attorney General

No. 99-301

In the Office of the Attorney General of the State of California

Filed August 6, 1999

THE HONORABLE H. PETER KLEIN, COUNTY COUNSEL OF MENDOCINO COUNTY, has requested an opinion on the following question:

Is a county auditor-controller prohibited from disclosing to the public information regarding the amount of money deducted from an elected county officer’ s salary to satisfy a state or federal tax lien?

CONCLUSION

A county auditor-controller is generally prohibited from disclosing to the public information regarding the amount of money deducted from elected county officer’ s salary to satisfy a state or federal tax lien, but special circumstances may allow for such disclosure in a particular case.

ANALYSIS

We are advised that a district attorney, who was elected to office in 1998, disputes the amount of his federal and state income tax liabilities for the years 1977 through 1991. In 1991-1992, he spent nine months in a federal prison, having been convicted for failing to file federal tax returns, a misdemeanor. Both federal and state tax liens have been filed against his property. His tax disputes have been widely reported in the throughout the county, both before and after his election. Most recently it was reported in the local newspapers that the district attorney has “filed for bankruptcy protection form paying back taxes and penalties that the IRS contends total more than #3.4 million.”

Some member of the public and the press wish to know the precise amount of money, if any, that is being deducted from the district attorney’ s salary to satisfy the state and federal tax liens. Other members of the public believe that such information does not relate to the district attorney’ s current official duties but instead relates to this past, private tax matters that should not be disclosed to the general public or press.

The question presented for resolution is whether the county auditor-controller is prohibited from disclosing the amount of the salary deductions, if any, that are being made to satisfy the federal and state tax liens. We conclude generally that such information is not disclosable but in the unique circumstances involved here, disclosure would not be prohibited.

Preliminary, we note that Code of Civil Procedure sections 706.070-706.084[FOOTNOTE 1] govern the withholding of money from an employee’ s salary for payment of a tax liability owed to the state. When the state serves a “withholding order for taxes” upon the taxpayer’ s employer (Code Civ. Proc., § § 706.072, 706.074), the employer is required to pay over the amounts withheld (Code Civ. Proc., § 706.077, subd (a)). The employer is also required to file and “employer’ s return” containing the information specified in Code of Civil Procedure section 706.126.

Federal tax law utilizes similar procedures. Failure to pay taxes results in the imposition of a lien. (26 U.S.C. § 6321.) The federal government may levy upon a taxpayer’ s accrued wages to satisfy the lien. (26 U.S.C. § 6331.) The salary of an employee of a state or local government may be levied upon by issuing an order to the government officer responsible for making the wage payments. (Simms v. United States (1959) 359 U.S. 108 [3 L.Ed.2d 667, 79 S. Ct. 641.)

Here, we are concerned with the right of privacy protected by the California Constitution. Section 1 of article I of the Constitution provides:

" All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

In 67 Ops.Cal.Atty.Gen. 414 (1984), we analyzed the constitutional right of privacy with respect to whether the California Student Aid Commission could disclose to schools and institutional lenders the names of students who were delinquent in their payments to the State Guaranteed Loan Program or who had defaulted on their loans. We observed with respect to the governing principles:

" In this state, privacy is expressly declared to be an inalienable right. (Cal.Const., art. I, § 1.) Although it has been only 12 years since the people elected to place privacy among the inalienable rights expressly guaranteed in the Declaration of Rights, traditional principles of constitutional law inform its application. [Citation.] Prior to 1972, privacy had been identified as a fundamental liberty implicity guaranteed by the federal Constitution; as such, it is protected even from incidental encroachment absent the demonstration of some compelling interest that is both legitimate and overriding. [Citation.] We have previously alluded to such ‘ implicity guaranteed’ federal zones of privacy.

“‘ . . . The Supreme Court of the United States, in Griswold v. Connecticut (1965) 381 U.S. 479, explicitly recognized the existence of certain “zones of privacy.” The court found this right, while not expressly provided in the Constitution to be the result of the interrelationship of express constitutional provisions and to be necessary for the implementation of these express protections. . . . It would, of course, be impossible to enumerate all of the possible zones of privacy, but they have been held to include, by way of example, privacy “in associations” including privacy of membership lists of a constitutionally valid organization [citations], privacy in the “private realm of family life” [citation], privacy “surrounding the marriage relationship” [citation], privacy to one’ s home [citations], and privacy in one’ s personal financial affairs [citation]. The last cited case observed that in determining the constitutional propriety of any such limitation upon the fundamental right of privacy there must be a balancing of interests between the government’ s need to preserve the efficiency and integrity of the public service on the one hand and the right to maintain privacy in one’ s personal affairs on the other. In such a case, the government must demonstrate the necessity for such limitation upon the right in question and must show not merely that the restriction is rationally related to the accomplishment of a permissible purpose but that the need is compelling. Moreover, the intrusion must not be overly broad; it must be viewed in the light of less drastic means for achieving the same basic purpose. [Citation.]‘ [Citation.]

“………………………………………………………….

“Financial information clearly falls within the zone of privacy under article I, section 1, of the California Construction [citations] which immunizes such information, including that in the custody of third parties, from disclosure [citations], except where (1) such disclosure is made pursuant to a compelling public interest which is both legitimate and overriding [citations,] and (2) the scope of disclosure is narrowly circumscribed [Citation].” (Id., at pp. 419-421.)

We have no doubt that the constitutional right of privacy generally covers information about a person’ s personal financial affairs (see Doyle v. State Bar (1982) 32 Cal.3d 12 19; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656′ Burrows v. Superior Court (1974 13 Cal. 3d 238, 243; Sehlmeyer v. Department of General Services(1993) 17 Cal.App.4th 1072, 1078; Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 315; Rifkind v. Superior Court (1981) 123 Cal.App.3d 1045, 1050-1051; 67 Ops.Cal.Atty.Gen. 414, 420-421 (1986)), Including tax obligations(see Rev. & Tax Code, § 19542; 26 U.S.C. § § 6103, 7213; Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6; Webb v. Standard Oil of California(1957) 49 Cal.2d 509, 513; Brown v. Superior Court (1977) 71 Cal.App.3d 141, 143-144). Although the amount of a district attorney’ s total salary is a matter of public record (§ 6454.8), deductions made to satisfy tax liens or for other purposes generally are not. (See Stats. 1998, ch. 324, § 11.11.) In 64 OpsCal.Att.Gen. 575, 584 (1981), we stated with respect to the disclosure of deductions from the salaries of employees of a private contractor receiving a federal subsidy administered by a state agency:

” . . . [W]e feel that disclosure of information about deductions that are taken from an indivdual carpenter’ s wages would amount to an unwarranted invasion of personal privacy. While amounts of deductions may be arrived at through formulae which are for the most part ‘ standardized,’ in practice, they are computed on an individualized basis using not only data that we have regarded as personal and deserving of privacy (such as gross salary or wage classification) but also data which is totally unrelated to the carpenter’ s work (such as number of claimed exemptions or marital status) and the disclosure of which serves no public interest. Accordingly, we find that disclosure of the carpenters’ deductions would constitute a particularly intrusive invasion into their privacy, without a countervailing public interest served by their disclosure.”

As indicated in our prior opinions and by the courts (Braun v. City of Taft (1984) 156 Cal.App.3d 332, 346-347; see CBS, Inc. v. Block (1986) 42 Cal.3d 646,653-655; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579-1585), the public’ s interest in knowing specific information must be weighed against the individual’ s privacy interests when determining the scope of the constitutional right of privacy. Here, looking at the various factors concerning the proposed disclosure, we find particularly significant that the disclosure deals with the enforcement of federal and state tax liens. While the precise information in question has not previously been disclosed, the public is well aware of the tax dispute between the district attorney ant the tax official. The federal and state tax liens on file are public records and the lien information is not confidential. (See William E. Schrambling Accounting Corp. v. U.S. (9th Cir. 1991) 937 F.2d 1485, 1489 ["the purpose of recording the lien . . . is to place the public on notice of the lien" ]; Lambert v. United States (9th Cir. 1998) 854 F.2d 335, 338.)

The public interest would be served in knowing the manner in which the federal and state tax authorities are performing their official duties. Are delinquent taxes owed to the federal and state governments being collected? Is the district attorney seeking or receiving any special treatment from the tax official due to his position as district attorney?

The public also has an interest in knowing whether the district attorney is in the process of solving his tax disputes and reducing his significant financial obligations as reported in the press. Disclosure may assure the public that the district attorney is not subject , for example, to possible undue influence caused by the scope of his financial difficulties. Here, we have a county officer who is charged with enforcing the law and a public interest in knowing whether, and to what extent, he is complying with the tax laws that he previously violated. In CBS, Inc. v. Block, supra 42 Cal.3d at 655, the Supreme Court recognized that “[t}he interest of society in ensuring accountability is particularly strong where the discretion invested in a government official is unfettered . . ." What the district attorney does in reducing his tax debts affects the public' s trust in the performance of his official, discretionary duties.

The proposed disclosures, therefore, cannot be viewed in the same light as disclosing payroll deductions for medical insurance premiums or deferred compensation investments.' The latter are voluntary deductions involving private decisions on how one' s salary is to be spent.. Here, on the other hand, we have a law enforcement official who is subject to the forced collection of delinquent tax debts, where he has been found guilty of violating the law.

Hence, we believe that the totality of the circumstances presented, including the nature of the information already disclosed and the public interest in preserving the integrity of official conduct, allows disclosure of the requested information without constituting a violation of the constitutional right of privacy. However, in providing the specific payroll information requested, the county auditor-controller must maintain the confidentiality of any information the disclosure of which is not justified by the public interest. (See Braun v. City of Taft, supra, 154 Cal. App.3d at 344-345; cf. Campbell v. United States Civil Service Commission (10th Cir. 1976) 539 F.2d 58, 62.)[FOOTNOTE 2]

We conclude that a county Auditor-controller is generally prohibited from disclosing to the public information regarding the amount of money deducted from an elected county officer’ s salary to satisfy a state or federal tax lien, but special circumstances may allow for such disclosure in a particular case.

August 23, 1999 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. Revenue and Taxation Code section 18671 authorizes withholding from payments other than earnings.

FN2. We note that the California Public Records Act (Gov. Code, § § 6250-6270) does not prohibit the disclosure of any information but rather authorizes a public agency to withhold the disclosure of a particular record. (CBS, Inc. v. Block, Supra, 42 Cal.3d at 652 ["The Act endows the agency with discretionary authority to override the statutory exceptions when a dominating public interest favors disclosure" ]; Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905; San Gabriel Tribune v. Superior Court (1983) 143 Cal. App.3d 762, 773; Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 941; Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645,656.) We thus need not discuss its provisions here.

AG Opinion #99-403 Recording Conversation to Obtain Evidence of Crime (1999)

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OPINION of BILL LOCKYER, Attorney General; ANTHONY M. SUMMERS, Deputy Attorney General

No. 99-403

In the Office of the Attorney General of the State of California

Filed July 30, 1999

THE HONORABLE GARY LIEBERSTEIN, DISTRICT ATTORNEY OF NAPA COUNTY, has requested an opinion on the following questions:

1. May a person initiate and tape record a telephone call in an attempt to gain evidence of child molestation alleged to have been committed by the person called?

2. If so, would such evidence be admissible in a subsequent civil or criminal proceeding?

CONCLUSIONS

1. A person may initiate and tape record a telephone call in an attempt to gain evidence of child molestation alleged to have been committed by the person called.

2. Such evidence would be admissible in a subsequent civil or criminal proceeding.

ANALYSIS

The California Privacy Act (Pen. Code, § § 630-637.6; “Act” )[FOOTNOTE 1] generally prohibits “invasions of privacy,” including the recording of telephone conversations. In 80 Ops.Cal.Atty.Gen. 342 (1997), we reviewed the provisions of the Act and concluded that telephone calls may not be recorded “unless (1) such calls are not deemed to be confidential or (2) there is an exemption available . . . .” (Id., at p. 345.)

The two questions presented for resolution concern the recording of a telephone conversation in order to obtain evidence of child molestation alleged to have been committed by the person called. Does the Act authorize such a recording, and if so, would the evidence be admissible in a judicial proceeding? We conclude that the recording would be authorized and the evidence would be admissible.

1. Recording to Obtain Evidence

In the circumstances under consideration, we may assume that the person called would expect the call to be private and confidential. The Act is applicable to a confidential telephone call, and prevents one party to a conversation from recording it without the other’ s consent. (Ribas v. Clark (1985) 38 Cal.3d 355; Frio v. Superior Court (1988) 203 Cal.App.3d 1480.)[FOOTNOTE 2]

Hence, we must look to the Act’ s exemptions to determine whether the call in question may be recorded.[FOOTNOTE 3] We find section 633.5 to be the governing statute. It provides:

” Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnaping, bribery, [or] any felony involving violence against the person. . . . Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnaping, bribery, [or] any felony involving violence against the person . . . .”

If child molestation constitutes a “felony involving violence against the person,” a telephone conversation may be recorded in order to obtain evidence reasonably believed to relate to such crime. Is child molestation a felony involving violence against the person?

In People v. Hetherington (1984) 154 Cal.App.3d 1132, the court answered that question in a different context. There, the defendant had been the operator of a day care center, who “for almost three years . . . molested children” (id., at p. 1136) and whose guilty plea included five counts of violating section 288, subdivision (a). At the time, section 288 provided:

” (a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.

“(b) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or threat of great bodily harm, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six or eight years.

“(c) In any arrest or prosecution under this section the peace officer, the district attorney, and the court shall consider the needs of the child victim and shall do whatever is necessary and constitutionally permissible to prevent psychological harm to the child victim.” (Stats. 1981, ch. 1064, § 1.)

The court found that a “violent felony” was described by the Legislature in subdivision (c) of section 667.5, which now provides as follows:

” For the purpose of this section, ‘ violent felony’ means any of the following:

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(6) Lewd acts on a child under the age of 14 years as defined in Section 288.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(11) The offense defined in subdivision (a) of Section 289 where the act is accomplished against the victim’ s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(16) Continuous sexual abuse of a child, in violation of Section 288.5.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’ s condemnation for these extraordinary crimes of violence against the person.” [FOOTNOTE 4]

The defendant argued that child molestation was a violent felony only as described in subdivision (b) of section 288 (“by use of force, violence, duress, menace, or threat of great bodily harm” ), and not as described in subdivision (a). The court rejected the argument, explaining in part:

” Contrary to Hetherington’ s presumption, section 288, subdivision (a) is not the only ‘ nonviolent’ felony remaining in section 667.5, subdivision (c). At least two other felonies which, by definition, can be committed without causing physical injury to a person (§ § 37, 218) are included in section 667.5, subdivision (c)(7). . . .

“. . . Section 667.5, subdivision (c) states: ‘ The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’ s condemnation for such extraordinary crimes of violence against the person.’ (Italics added.) We consider it significant that the statute refers simply to ‘ violence’ rather than to ‘ physical violence,’ ‘ physical injury’ or ‘ bodily harm.’ The statute’ s unadorned language indicates the Legislature intended to impose increased punishment via section 667.5, subdivision (c) not only for certain felonies which are ‘ violent’ in a physical sense but also for other selected felonies which cause extraordinary psychological or emotional harm. [Citation.] By adding subdivision (c) to section 288 in 1981 . . . the Legislature recognized both subdivisions (a) and (b) violations often caused irreparable psychological and emotional damage to child victims. Therefore, ‘ to display society’ s condemnation for such extraordinary crimes of violence against the person,’ the Legislature included both subdivisions (a) and (b) within section 667.5, subdivision (c)(6). The Legislature acted within its discretion, based on its proper concern for the welfare of children, to include subdivision (a) offenses . . . within the scope of section 667.5, subdivision (c). Accordingly, we hold . . . section 288, subdivision (a) offenses are ‘ violent felonies’ under section 667.5, subdivision (c)(6) . . . .” (Id., at pp. 1139-1140; fn. omitted.)

In People v. Stephenson (1984) 160 Cal.App.3d 7, the court agreed with the reasoning in Hetherington, stating in part:

” Granted, the Legislature did distinguish between ‘ violent’ and ‘ nonviolent’ section 288 offenses when it added subdivision (b) in 1979. [Citation.] . . . .

“As Hetherington notes, section 667.5, subdivision (c), also defines as ‘ violent’ felonies other offenses (§ § 37, 218), which can be committed without causing physical injury to a person. [Citation.] But even were this not the case, it would not follow the Legislature did not intend to retain section 288, subdivision (a), as a ‘ violent’ felony under section 667.5, subdivision (c).

“. . . The legislative intent to encompass section 288, subdivision (a) within section 667.5, subdivision (c)(6), is buttressed by subdivision (c)’ s declaration condemning ‘ extraordinary crimes of violence against the person.’ The absence of specific reference to physical injury, which the Legislature has done in many statutes, signifies to us, as it did to the court in Hetherington, a recognition certain felonies, such as section 288, subdivision (a), are ‘ violent’ by virtue of the extreme psychological or emotional harm caused by their commission. [Citation.]” (Id., at p. 10.)

Not only do lewd acts on a child (§ 288) constitute a “violent felony” under section 667.5, so also do continuous sexual abuse of a child (§ 288.5) and penetration by a foreign or unknown object (§ 289) by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (§ 667.5, subd. (c)(11), (16).) Based upon Hetherington and Stephenson, we believe that each of these forms of child molestation qualify as “any felony involving violence against the person” (§ 633.5) as defined by the Legislature.

Finally, we note that even if the person making the recording does not accomplish the objective of obtaining the evidence sought, there is no violation of the Act’ s provisions if the recording is made for a proper purpose. (Lubetzky v. State Bar of California (1991) 54 Cal.3d 308, 321; People v. Parra (1985) 165 Cal.App.3d 874, 889-890.)

We conclude in answer to the first question that a person may initiate and tape record a telephone call in an attempt to gain evidence of child molestation alleged to have been committed by the person called.

2. Admissibility of Evidence

The second question posed is whether the tape recording of a conversation involving alleged child molestation may be admitted into evidence in a judicial proceeding. Section 633.5 is again the controlling statute. It states, as noted above, that “[n]othing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for . . . any felony involving violence against the person . . . .” (See People v. Suite (1980) 101 Cal.App.3d 680; People v. Parra, supra, 165 Cal.App.3d 874; People v. Ayers (1975) 51 Cal.App.3d 370.)

It is to be recognized that exclusionary rules applicable to criminal proceedings are not ordinarily applied in non-criminal matters unless the circumstances under which the proffered evidence was obtained would result in a denial of due process. (See United States v. Janis (1976) 428 U.S. 433; Emslie v. State Bar (1974) 11 Cal.3d 210.)

We conclude that where the recording of a telephone conversation is permitted under the terms of section 633.5, it may subsequently be introduced into evidence in a civil or criminal proceeding.

August 5, 1999 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. All references hereafter to the Penal Code are by section number only.

FN2. The Act allows law enforcement officers to record telephone conversations with the consent of only one of the parties. (§ 633; People v. Blend (1981) 121 Cal.App.3d 215, 229; People v. Carbonie (1975) 48 Cal.App.3d 679, 684-685; People v. Caravella (1970) 5 Cal.App.3d 931, 933-934.)

FN3. Because the Act is more stringent than federal law (18 U.S.C. § § 2510-2520) with respect to the issue presented (see People v. Otto (1992) 2 Cal.4th 1088, 1097), we need not examine the applicability of the federal requirements.

FN4. While the language quoted is the current version of the statute, subdivision (c)(6) has not been materially amended since being examined in Hetherington.

AG Opinion #99-503 Is Disclosing Peace Officer Personnel Records a Crime? (1999)

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OPINION of BILL LOCKYER, Attorney General;

ANTHONY S. DA VIGO, Deputy Attorney General

No. 99-503

Office of the Attorney General of the State of California

Filed December 22, 1999

THE HONORABLE MARSHA JONES MOUTRIE, CITY ATTORNEY, CITY OF SANTA MONICA, has requested an opinion on the following question:

Does the disclosure of peace officer personnel records in violation of Penal Code section 832.7 constitute a crime?

CONCLUSION

The disclosure of peace officer personnel records in violation of Penal Code section 832.7 may constitute a crime under the terms of Government Code section 1222 if the conditions of the latter statute are met.

ANALYSIS

Penal Code section 832.7, subdivision (a), provides as follows:

” Peace officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of police officers or a police agency conducted by a grand jury, a district attorney’ s office, or the Attorney General’ s office.” [FOOTNOTE 1]

While “Penal Code section 832.7 allows disclosure of the records in a variety of investigations” (Michael v. Gates (1995) 38 Cal.App.4th 737, 745), we are asked to assume that a disclosure has been made by an officer of a law enforcement agency in violation of the statutory prohibition. Would such disclosure constitute a crime? We conclude that it may constitute a crime under the provisions of Government Code section 1222.

Penal Code section 15 provides:

“A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:

“1. Death;

“2. Imprisonment;

“3. Fine;

“4. Removal from office; or,

“5. Disqualification to hold and enjoy any office of honor, trust or profit in this state.”
In Matter of Ellsworth (1913) 165 Cal. 677, 681, the Supreme Court declared:

” . . . It should be unnecessary to point out the tremendous distinction that exists between acts which are simply illegal and for which therefore a civil liability alone results, and those which are criminal, for which penal as well as civil liability arises. A crime is an act committed or omitted in violation of a law forbidding or commanding it, ‘ and to which is annexed, upon conviction, either of the following punishments: death, imprisonment, fine, removal from office, or disqualification to hold and enjoy any office of honor, trust or profit in this state.’ (Pen. Code, sec. 15.) A description, definition, and denouncement of acts necessary to constitute a crime do not make the commission of such act or acts a crime, unless a punishment be annexed, for punishment is as necessary to constitute a crime as its exact definition. [Citation.]”

The Legislature has not declared a violation of Penal Code section 832.7 to be a crime nor has it prescribed any punishment for its violation. (See City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1430; Bradshaw v. City of Los Angeles (1990) 221 Cal.App.3d 908, 918-919.)[FOOTNOTE 2]

As distinguished from the provisions of Penal Code section 832.7, a number of other statutes have made the disclosure of confidential information a crime in specified situations. (See, e.g., Pen. Code, § § 637.6 [disclosure of private information obtained in establishing a ridesharing program punishable as a misdemeanor], 11141 [disclosure of criminal history records punishable as a misdemeanor]; Civ. Code, § 56.36 [disclosure of medical records punishable as a misdemeanor]; Gov. Code, § 7485 [disclosure of financial records punishable as a misdemeanor]; Rev. & Tax. Code, § 7284.6 [disclosure of utility taxpayer information punishable as a misdemeanor].) The Legislature has not done so in Penal Code section 832.7 with respect to the disclosure of peace officer personnel records, and we may not do so in the guise of statutory interpretation. “‘ [C]ourts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions.’ [Citation.]” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097.)

Nevertheless, the disclosure in question may constitute a crime under the general terms of Government Code section 1222, which provides:

” Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.”

In 76 Ops.Cal.Atty.Gen. 289 (1993), we examined whether the public disclosure of information received during a closed session of a legislative body of a local agency could be considered the “willful omission” to perform a “duty enjoined by law.” We concluded that disclosure of information in violation of a statute “may be enforced by use of the general criminal sanction set forth in [Government Code] section 1222.” (Id., at p. 292.) We relied upon Alder v. City Council (1960) 184 Cal.App.2d 763 in reaching our conclusion. In Adler, the court declared that when a local public agency holds a meeting in secret in violation of applicable open meeting laws, the agency members may be subject to criminal prosecution pursuant to Government Code section 1222. “[I]n view of the public purpose of the Brown Act, which is directed toward the conduct of public officials, we believe that section 1222, Government Code . . . [is] here applicable . . . .” (Id., at p. 774; accord, Centinela Hospital Assn. v. City of Inglewood (1990) 225 Cal.App.3d 1586, 1598; Griffis v. County of Mono (1985) 163 Cal.App.3d 414, 427, fn. 15; Griswald v. Mt. Diablo Unified Sch. Dist. (1976) 63 Cal.App.3d 648, 656-658.)

Similarly, here, we believe that the disclosure of confidential information in violation of Penal Code section 832.7 (see City of Hemet v. Superior Court, supra, 37 Cal.App.4th at 1430-1431; City of Richmond v. Superior Court, supra, 32 Cal.App.4th at 1436-1441) may be prosecuted as a breach of official duty under the terms of Government Code section 1222. Of course, the disclosure must be proved to be “willful” to come within the terms of the latter statute, among other requirements.

In answer to the question presented, therefore, we conclude that the disclosure of peace officer personnel records in violation of Penal Code section 832.7 may constitute a crime under the provisions of Government Code section 1222 if the conditions of the latter statute are met.

::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::

FN1. Penal Code section 832.5 concerns records of complaints by members of the public against peace officers.

FN2. Although Bradshaw has not been followed in its discussion of certain peripheral matters (City of Hemet v. Superior Court, supra, 37 Cal.App.4th at 1430-1431; City of Richmond v. Superior Court (1995) 32 Cal.App.4th 1430, 1436-1441), it is clearly correct in noting that Penal Code section 832.7 does not contain a criminal penalty for a violation thereof.

AG Opinion #99-712 Residency and Petition Circulators (1999)

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OPINION of BILL LOCKYER, Attorney General;

CLAYTON P. ROCHE, Deputy Attorney General
No. 99-712

In the Office of the Attorney General of the State of California

Filed December 22, 1999

THE HONORABLE WILLIAM B. CONNERS, CITY PROSECUTOR, CITY OF MONTEREY, has requested an opinion on the following questions:

1. In light of the United States Supreme Court’ s recent decision in Buckley v. American Law Foundation, Inc., is Elections Code section 9209 unconstitutional in requiring circulators of initiative petitions to declare that they are voters of the city?

2. Must circulators of a city initiative petition declare that they are city residents?

CONCLUSIONS

1. In light of the United States Supreme Court’ s recent decision in Buckley v. American Law Foundation, Inc., Election Code section 9209 is unconstitutional in requiring circulators of petitions to declare that they are voters of the city.

2. Circulators of a city initiative petition need not declare that they are city residents.

ANALYSIS

The Legislature has enacted a comprehensive statutory scheme (Elec. Code, § § 9200-9295)[FOOTNOTE 1] governing municipal elections, including the approval of initiative measures submitted by the electorate (§ § 9200-9226; see Cal. Const., art. II, § 11). A city initiative measure is a proposed ordinance filed by petition signed by a specified number of voters of the city within a specified period of time. (§ 9201; see Blotter v. Farrell (1954) 42 Cal.2d 804, 810-812.) The initiative petition “shall be accompanied by the written text of the initiative and may be accompanied by a written statement not in excess of 500 words, setting forth the reasons for the proposed petition.” (§ 9202, subd. (a); see also § § 9205-9207; Ibarra v. City of Carson (1989) 214 Cal.App.3d 90, 94-97.) Not all signatures need to be attached to the original petition; the petition may be split up into “sections,” with each section containing “the title of the petition and the text of the measure.” (§ 9201.)

The two questions presented for resolution concern the requirements of section 9209, which govern those who may circulate city initiative petitions.[FOOTNOTE 2]

Section 9209 provides:
” Each section shall have attached thereto the declaration of the person soliciting the signatures. This declaration shall be substantially in the same form as set forth in Section 9022, except that the declaration shall declare that the circulator is a voter of the city, and shall state the voter’ s residence address at the time of the execution of the declaration.”

Section 9022, subdivision (a) states:
“Each section shall have attached thereto the declaration of the person soliciting the signatures setting forth the information required by Section 104 and stating that the circulator is a registered voter of the state.” Subdivision (a) of section 104, in turn, provides that each declaration attached to a section must contain, among other information, the printed name of the circulator and “[t]he residence address of the circulator, giving street and number, or if no street or number exists, adequate designation of residence so that the location may be readily ascertained.”

1. Voters of the City

The first question to be resolved is whether the circulator of an initiative petition must be “a voter of the city” as required under section 9209, or whether such statutory requirement is now unconstitutional in light of the United States Supreme Court’ s recent decision in Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182 [142 L.Ed.2d 599, 119 S.Ct. 636]. We conclude that the statutory requirement is unconstitutional under Buckley.

In Buckley, the court ruled that a Colorado statute requiring all circulators of a statewide initiative petition to be “registered electors” [FOOTNOTE 3] of the state was unconstitutional. The court explained in part:

” By constitutional amendment in 1980 . . . Colorado added to the requirement that petition circulators be residents, the further requirement that they be registered voters. . . . Beyond question, Colorado’ s registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions. We must therefore inquire whether the State’ s concerns warrant the reduction. [Citation.]

“When this case was before the District Court, registered voters in Colorado numbered approximately 1.9 million. At least 400,000 persons eligible to vote were not registered. . . .

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“The Tenth Circuit reasoned that the registration requirement placed on Colorado’ s voter-eligible population produces a speech diminution of the very kind produced by the ban on paid circulators at issue in Meyer [v. Grant (1988) 486 U.S. 414]. [Citation.] We agree. The requirement that circulators be not merely voter eligible, but registered voters, it is scarcely debatable given the uncontested numbers . . . decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators. Both provisions ‘ limi[t] the number of voices who will convey [the initiative proponents' ] message’ and, consequently, cut down ‘ the size of the audience [proponents] can reach.’ [Citations.] In this case, as in Meyer, the requirement ‘ imposes a burden on political expression that the State has failed to justify.’ [Citation.]

“Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because ‘ it is exceptionally easy to register to vote.’ [Citation.] The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. . . .

“The State’ s dominant justification appears to be its strong interest in policing lawbreaking among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State’ s subpoena power, which in these matters does not extend beyond the State’ s borders. [Citation.] The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the ‘ address at which he or she resides, including the street name and number, the city or town, [and] the county.’ [Citation.] This address attestation, we note, has an immediacy, and corresponding reliability, that a voter’ s registration may lack. The attestation is made at the time a petition section is submitted; a voter’ s registration may lack that currency.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measure — a question we, like the Tenth Circuit, [citation] have no occasion to decide because the parties have not placed the matter of residence at issue — the added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena without impelling cause.” (119 S.Ct. at 642-645, fns. omitted.)

Similarly, here, we believe that the number of registered voters falls significantly short of the number of potential voters in any given city in California. Accordingly, requiring only registered voters to circulate initiative petitions unduly imposes a burden on “core political speech” by reducing “the number of voices who will convey [the initiative proponents' ] message” (Meyer v. Grant (1988) 486 U.S. 414, 422.) The fact that registering to vote is “exceptionally easy” cannot “lift the burden on speech at petition circulation time.” (Buckley v. American Constitutional Law Foundation, supra, 199 S.Ct. at 644.)[FOOTNOTE 4]

We conclude in answer to the first question that in light of the recent Buckley decision, section 9209 is unconstitutional in requiring circulators of initiative petitions to declare that they are voters of the city.

2. City Residents

The second question presented concerns whether circulators of an initiative petition must declare that they are city residents under the terms of section 9209. We conclude that circulators need not declare that they are city residents.

As previously quoted, section 9209 requires each circulator of an initiative petition to file a declaration “that the circulator is a voter of the city, and shall state the voter’ s residence address at the time of the execution of the declaration.” If a circulator no longer is required to be “a voter of the city” under Buckley, does the circulator nevertheless need to be a resident of the city by virtue of section 9209′ s reference to “residence address” ?

Section 9209 does not expressly require a circulator to declare that he or she is a resident of the city. Once the “voter” requirement is severed from the statute, the circulator’ s “residence address” may be located outside the jurisdiction of the city under the plain language of the statute. We follow the well established principle of statutory construction that “‘ courts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions.’ [Citation.]” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097).

No other statute expressly requires petition circulators to be residents of the city. (See § § 104, 9022.) No particular or restricted geographical area is specified when declaring a circulator’ s “residence address.”

In answer to the second question, therefore, we conclude that circulators of a city initiative petition need not declare that they are city residents.

December 28, 1999 CALIFORNIA

::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::

FN1. All references hereafter to the Elections Code are by section number only.

FN2. We do not consider herein the charter provisions of a charter city relating to city initiative measures. (See Cal. Const., art. II, § 11; § 9247; Browne v. Russell (1994) 27 Cal.App.4th 1116.)

FN3. A “voter of the city” would be one who is a “registered elector” of an election precinct located within the city. (See § § 321, 359.)

FN4. By letter dated January 20, 1999, The Secretary of State, as chief elections officer, instructed local elections officials that due to the Buckley decision, “[t]here is no longer any requirement that initiative circulators be registered voters.” The effect of this administrative interpretation of section 9209 is beyond the scope of our discussion. (See Cal. Const., art. III, § 3.5; Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1038; Reese v. Kizer (1988) 46 Cal.3d 996, 1001-1002; Southern Cal. Lab. Management etc. Committee v. Aubry (1997) 54 Cal.App.4th 873, 887; 68 Ops.Cal.Atty.Gen. 209, 219-222 (1985).)

61 Ops. Cal. Atty. Gen. 220 Brown Act Governs Police Board (1978)

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Office of the Attorney General

State of California

61 Ops. Cal. Atty. Gen. 220

Opinion No. CV 77-195

May 4, 1978

THE HONORABLE HOWARD L. BERMAN

ASSEMBLYMAN FOR THE 43RD DISTRICT

THE HONORABLE HOWARD L. BERMAN, ASSEMBLYMAN, FOR THE 43RD DISTRICT, has requested the opinion of this office on the following questions concerning a board of police commissioners established by charter in a chartered city which has the power and duty to control and manage the affairs of the police department:

’1. Does the Ralph M. Brown Act apply to the described Board of Police Commissioners?

’2. If the Act does apply, does it permit the Board to go into executive session to hear reports from and issue instructions to the Chief of Police regarding the conduct of confidential police investigations, the deployment of police personnel, the utilization of particular police tactics, and similar matters, the public discussion of which would impair the ability of the police force to effectively carry out its duties?’

The conclusions are:

1. The board of police commissioners is subject to the Ralph M. Brown Act.

2. The Ralph M. Brown Act would not permit the board to go into executive session to conduct its usual business with the chief of police. To sanction an executive session, it would be necessary to fall within one of the express provisions of the Act or be necessary to protect another confidentiality provision of the law such as those which specifically relate to certain public records.

ANALYSIS

The request for the opinion of this office describes the board of police commissioners established by a chartered city as follows:

‘A city charter has established a five-member Board of Police Commissioners as the ‘head’ of its police department. The Board serves as the chief executive of the department. Under the charter, this Board has the legal power and duty to control and manage the affairs of the police department. Included among these is the duty to instruct and direct the Chief of Police in all performances of his duties. The Chief of Police is described in the Charter as the ‘chief administrative officer.’ All, or virtually all, of the powers and duties vested in the Chief of Police under the charter are subject to the instruction and direction of the Board of Commissioners. Under the charter, the Board of Commissioners can only act as a Board. Individual members of the Board have no power to direct the activities of the Chief of Police or the department.

‘. . .

‘Given its charter-imposed responsibility to manage, direct and control the activities of the police department, it is necessary that the Board hear reports from and issue instructions to the Chief of Police regarding confidential and sensitive police matters. Some examples of the types of decisions the board may have to make are:

1. Whether to direct the chief to investigate or reinvestigate a particular crime or alleged criminal activity.

2. Whether to direct the deployment of police personnel in a particular locale or in a particular manner to deal with specific existing or anticipated criminal activity.

3. Whether to direct the infiltration of organized crime, youth gangs, etc.

‘The Chief regularly makes oral reports to the Board concerning current status of specific criminal activity or investigations relating thereto, including the names of suspected criminals, their locations, activities, and associations as well as the steps the Department has taken, is taking, and plans to take regarding the suspected criminal activity. Such reports may include disclosure to the Board of individuals’ criminal records, which records may not lawfully be disclosed publicly.’

On the premise that it would not be within the public interest for the board and the chief of police to conduct their business in sessions open to the public, the opinion of this office is requested (1) as to the applicability of the Ralph M. Brown Act to the board of police commissioners (hereinafter ‘the Board’) and (2) whether the Board may go into executive sessions with the chief of police ‘. . . to hear reports from and issue instructions to the chief of police regarding the conduct of confidential police investigations, the deployment of police personnel, the utilization of particular police tactics, and similar matters. . . .’

It is the conclusion of this office that the Ralph M. Brown Act is applicable to the Board, and that unless specifically provided therein the act does not permit the Board and the chief to meet in executive session. However, despite this conclusion, executive sessions of a limited nature could be sanctioned where necessary to maintain the confidentiality of confidential public records, or the confidentiality of matters which will later be memorialized in confidential public records.

1. The Applicability Of The Ralph M. Brown Act.

The Ralph M. Brown Act, Government Code sections 54950 et seq. [FN1] requires that ‘legislative bodies’ as defined therein, of ‘local agencies’ as defined therein hold their meetings in sessions which are open to the public. (See, particularly, § 54953.) The act does not define the term ‘meetings’, but basically applies to any gathering of a quorum of a ‘legislative body,’ no matter how informal, where business is transacted or discussed. (See, generally, Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41; 43 Ops.Cal.Atty.Gen. 36 (1964); 42 Ops.Cal.Atty.Gen. 61 (1963) 32 Ops.Cal.Atty.Gen. 240 (1958).)

The act is specifically made applicable to chartered cities. Thus, section 54951 provides:

‘As used in this chapter, ‘local agency’ means a . . . city, whether general law or chartered, . . .’

Sections 54952 and 54952.5 define ‘legislative body’ as follows: [FN2]

‘As used in this chapter, ‘legislative body’ means the governing board, commission, directors or body of a local agency, or any board or commission thereof, and shall include any board, commission, committee, or other body on which officers of a local agency serve in their official capacity as members and which is supported in whole or in part by funds provided by such agency, whether such board, commission, committee or other body is organized and operated by such local agency or by a private corporation.’ (Emphasis added).

‘As used in this chapter, ‘legislative body’ also includes, but is not limited to, planning commissions, library boards, recreation commissions, and other permanent boards or commissions of a local agency.’

Thus, a board of police commissioners established by a chartered city would fall clearly within the terms of both sections 54952 and 54952.5 as a ‘board or commission thereof’ and a ‘permanent commission’ thereof. Nor does the fact that the Board acts solely or primarily in an ‘executive’ capacity militate against such a conclusion. Sections 54952 and 54952.5 do not purport to limit their scope to legislative bodies in the true sense of the word. In rejecting contentions that local boards or commissions should be exempted from the Act while acting in a quasi-judicial role, this office has recognized that the Act was not intended to be restricted to boards and commissions insofar as they may be performing legislative functions. In 57 Ops.Cal.Atty.Gen. 189, 191 (1974), wherein we ruled upon certain activities of a county board of education, it was stated: ‘. . . it is asserted that when deciding a disputed matter of student attendance, the county boards are exercising a quasi-judicial function to which the provisions of the act do not apply. We find no such exception and more importantly neither did the court in the Sacramento Newspaper Guild case, 263 Cal.App.2d at 47 wherein the court held:

‘There is nothing in the Brown Act to demarcate a narrower application than the range of governmental functions performed by the agency. Although the Brown Act artificially classifies it as a legislative body, a board of supervisors actually performs legislative, executive and even quasi- judicial functions [citations omitted]. Section 54950 is a deliberate and palpable expression of the act’s intended impact. It declares the law’s intent that deliberations as well as actions occur openly and publicly. Recognition of deliberations and action as dual components of the collective decision-making process that brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either.’

‘Many legislative bodies act, as do county boards of education, in a quasi- judicial capacity in performing many of their functions. They are not, however, exempted from the application of the act for that reason. . . .’

The same reasoning would be applicable to actions taken in an executive capacity. Accordingly, it is concluded that the Board herein under consideration is subject to the provisions of the Ralph M. Brown Act.

2. Permissible Executive Sessions

The Ralph M. Brown Act provides that ‘except as otherwise provided’ therein, ‘[a]ll meetings of the legislative body of a local agency shall be open and public.’ (§ 54953.)

The act specifies a limited number of permissible executive sessions in sections 54957 and 54957.6. [FN3] Insofar as any of the Board’s business with the chief of police might fall within any of these specific exemptions to the open meeting requirements of the act, it could meet with the chief in executive session.

However, the question presented does not generally contemplate such situations. Rather, it contemplates meetings including executive sessions predicated on non-statutory exceptions to the Act.

The only non-statutory exception expressly recognized by California appellate judicial decisions to date is with regard to the ability of a ‘legislative body’ to meet with its legal adviser within the proper confines of the attorney-client privilege. (See Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41.) However, it is to be emphasized that in its holding in that case, the court reasoned that the Ralph M. Brown Act was not intended to impliedly repeal pre-existing and well established laws relating to confidentiality. As stated by the court, at page 57:

‘Evidence of such intent [to repeal the lawyer-client privilege for local boards] is by far too thin. It consists of the open meeting requirement of section 54953 and the declaration of legislative policy in section 54950 (fn. 2, supra). In requiring board members to deliberate and act in public, these do not inexorably embrace the board members in their roles as clients calling upon their attorney for legal advice. In declaring the public’s right to be informed, they do not necessarily propel the public’s legal adversary into the lawyer-client conference clad in the robes of good citizenship. In recommending the bill which became the Brown Act, the Assembly Interim Committee on Judiciary gave no clue that it had even considered the statutory lawyer-client privilege of public boards. Indeed, the committee professed no attempt to cope with the entire gamut of disclosure problems in local government. [footnote omitted]

‘Parallel to the lawyer-client privilege is that of a public officer to refuse disclosure of communications made to him in official confidence when ‘[d]isclosure of the information is against the public interest. . . .’ (Evid. Code, § 1040, subd. (a)(b)(2), replacing former Code Civ. Proc., § 1881, subd. 5; see Jessup v. Superior Court, supra, 151 Cal.App.2d at pp. 107-108.) The interim committee voiced no criticism of the latter privilege, although it too is a possible tool of official secrecy. Neither the Brown Act nor its history supplies undebatable evidence of a legislative intent to supersede the assurance of private legal consultation stemming from the statutory lawyer-client privilege.’ (Emphasis added.)

Since the Sacramento Newspaper Guild case was decided, this office has issued a number of formal and informal opinions in which we have held that executive sessions may be held to protect other statutory confidentiality provisions. These were summarized in 58 Ops.Cal.Atty.Gen. 839, 841 (1976) wherein we held that a board of supervisors could meet in secret with a county grand jury pursuant to a grand jury’s investigatory powers in order to preserve the confidentiality of the grand jury’s proceedings. We stated:

‘Subsequent to the decision of the court in Sacramento Newspaper Guild, this office expressed the opinion that The Brown Act was also not intended to repeal other statutory policies insuring the confidentiality of agency deliberations on certain matters. In 51 Ops.Cal.Atty.Gen. 201 (1968), we concluded that the statutory policy assuring the confidentiality of discussions between a local agency and a state labor conciliator was not impliedly repealed by The Brown Act, and executive sessions could be held for such a purpose. Later in an informal letter opinion, we opined that The State Agency Act (Gov. Code §§ 11120-11131), an act similar to The Brown Act, but applicable to meetings of state agencies, did not prohibit a closed door meeting of a state agency for the purpose of hearing an oral presentation of the Department of Justice Organized Crime Unit based on records protected from disclosure by law. Letter to Hon. Robert H. Lawson, Executive Director, California Council on Criminal Justice, Nov. 1, 1972, L.B. 382, p. 151. Our conclusion in both opinions was premised on the reasoning of the court in Sacramento Newspaper Guild. It is our view that the application of the open meeting provisions of The Brown Act to a meeting between a board of supervisors and a grand jury is also governed by principles enunciated by the Court of Appeals in the aforementioned decision.’

However, in situations where there is no independent confidentiality provision which requires secrecy, this office has strictly applied the Ralph M. Brown Act according to its terms. This has been done on the grounds that the Legislature, not this office, should determine when executive sessions are permissible even where there may be strong policy arguments in favor of secret sessions. Thus, in 57 Ops.Cal.Atty.Gen. 209 (1974), this office held that a board of supervisors, which had decided to conduct its ‘meet and confer’ sessions without a ‘designated representative’, could not meet in executive session to decide upon its bargaining position despite the fact that had it utilized a ‘designated representative’, it could have met with him in executive session for the same purpose. Despite strong ‘policy’ arguments in favor of closed sessions, we reasoned inter alia.

‘[L]ong tradition preceding the Brown Act discloses a strong public policy against government conducted in secret and has led this office to conclude, as a matter of general policy, that ‘doubtful cases should be resolved in favor of open and public meetings.’ Letter to Assemblyman John T. Knox, November 23, 1966, I .L. 66-184, p. 5, L.B. 375, p. 64.

‘It is therefore concluded that the instant situation presents a doubtful case which must be resolved against the finding of an implied exception for executive sessions when the local governing body declines to designate a ‘meet and confer’ representative. Prior case law has permitted implied exceptions only where legal principles codified in the state statutes preceded the Brown Act. No such legal principle is discernible here. Moveover, the legislative history of section 54957.6 incorporated in the Brown Act shows a legislative intent to exclude such executive sessions. These findings combined with the strong public policy against meetings conducted in secret inevitably lead to the above conclusion. . . .’ (Id at p. 212.) (Emphasis added.) See also, 57 Ops.Cal.Atty.Gen., supra, 189 at pp. 190-191:

‘Exceptions to the act are narrowly construed in order to effectuate the legislative intent as set forth in section 54950. Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal.App.2d 41, 58 (1968). Exceptions other than those set forth in the act exist in order to reconcile the act with other provisions of law if to do so will promote the public interest. . . .’

Applying these principles to the question of meetings between the board and the chief of police, we hold that unless there is some other provision such as a specific or general independent confidentiality provision (e.g., the Public Records Act, §§ 6254 and 6255) upon which to base an executive session, the Board may not meet with the chief of police in private. Section 6254 subdividion (f) regarding police investigations and section 6255, a general codification of the ‘official privilege’ would appear to be of appreciable aid in this respect. (Cf. letter opinion cited in 58 Ops.Cal.Atty.Gen., supra, 839, 840, to CCCJ, I.L. 72-185.) Likewise, so might the ‘official privilege’ found in Evidence Code section 1040.

In so concluding we note that the result reached herein may appear harsh. However, the question is whether the Legislature has authorized the board to conduct all its ‘sensitive’ business with the chief of police in private. In our view it has not. (Cf. Bailey v. Superior Court (1977) 19 Cal.3d 970, 977.) Authority for executive sessions must therefore be found in the explicit terms of the Act, or implied from some other confidentiality provision such as that which attaches to confidential records. Insofar as this may be deemed an inadequate solution, the problem appears to be one for legislative resolution. [FN4]

EVELLE J. YOUNGER

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. All section references are to the Government Code unless otherwise indicated.

FN2. Section 54952.3 also defines ‘legislative body’ to include certain advisory boards or commissions. Such section is not germane to our inquiry.

FN3. Thus, section 54957 provides in part:

‘Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding executive sessions with the Attorney General, district attorney, sheriff, or chief or police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the public’s right of access to public services or public facilities, or from holding executive sessions during a regular or special meeting to consider the appointment, employment or dismissal of a public employee or to hear complaints or charges brought against such employee by another person or employee unless such employee requests a public hearing. The legislative body also may exclude from any such public or private meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.’ And section 54957.6 provides:

‘Notwithstanding any other provision of law, a legislative body of a local agency may hold executive sessions with its designated representatives prior to and during consultations and discussions with representatives of employee organizations regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of employees in order to review its position and instruct its designated representatives.

FN4. The problem may not be as unique as it might appear at first blush. In a letter to this office from the Leaque of California Cities responding to our request for their views on the questions presented herein it is stated:

‘It seems worthy of note that the board of police commissioners with the powers described in the opinion request functions not unlike many city councils of smaller cities which have much the same executive authority and responsibilities with respect to their own police chiefs.

Contrast this with the fact that the Legislature has granted only limited authority for legislative bodies to confer in executive sessions with their chief of police regarding the security of public buildings.

62 OPS. Cal. Atty. Gen.150 Can Two Legislative Bodies and Their Counsels Meet in Executive Session to Discuss Litigation Settlement? (1979)

admin — Sat, 13 Jun 2009 05:01:37 +0000

Office of the Attorney General

State of California

62 Ops. Cal. Atty. Gen. 150

Opinion No. CV 78-103

April 10, 1979

THE HONORABLE STANLEY M. RODEN

DISTRICT ATTORNEY

SANTA BARABRA COUNTY

THE HONORABLE STANLEY M. RODEN, DISTRICT ATTORNEY, SANTA BARABRA COUNTY, has requested an opinion on the following questions:

1. Is it a violation of the Ralph M. Brown Act for the full legislative bodies of a city and a water district, each accompanied by its legal adviser, to meet in a properly noticed executive session to discuss the settlement of potential litigation?

2. In counties which have a County Counsel, does the district attorney have the authority to bring civil actions provided for in section 54960 of the Government Code?

The conclusions are:

1. No express provision of the Ralph M. Brown Act would authorize two legislative bodies accompanied by their attorneys to meet in executive session to discuss the settlement of potential litigation, nor would any implied exception to the open meeting requirements of that act appear to grant blanket authority for such a meeting; however, if matters to be discussed are already privileged or confidential by law, an executive session might be authorized to discuss these particular matters only.

2. Section 54960 was not intended to give either the district attorney or the county counsel the authority to act as ‘civil prosecutor’ in matters relating to the Ralph M. Brown Act.

ANALYSIS

The facts which gave rise to this request for our opinion were set forth briefly in the District Attorney’s request, and were elaborated upon by the City of Santa Barbara and the Goleta County Water District. Thus, the District attorney set forth the facts as follows:

‘The factual setting of the immediate problem is rather simple. The City of Santa Barbara and the Goleta County Water District, a district organized pursuant to the California Water Code, have for years serviced overlapping geographical areas. The current agreement by which both the city council and the water district provide service is about to expire. A dispute exists as to service deployment once the agreement does expire. Litigation has been threatened.

‘In order to reach a solution to this problem, the city council and the Goleta water board, accompanied by their attorneys, met en masse in executive session to attempt to resolve the issues. (Copies of the agendas of the respective agencies are enclosed.) This joint meeting was held on June 13, 1978. The substance of the meeting was later to disclose (sic) to have been a proposed settlement of the legal dispute that could very well have led to litigation. (The precise nature and/or minutes of the meeting have been held confidential by the agencies, however.)’

The city and the water district submitted the following ‘additional Factual Matters’ for our consideration in resolving the question of the legality of the executive session:

’1. The subject matter of the dispute and the alternative proposals for settlement were extremely complex and involved far-reaching water service, land use planning, economic and political considerations to both entities.

’2. Long before the joint executive session of the governing bodies was held, representatives of each entity had met on numerous occasions over an extended period of time in settlement negotiations. The negotiating team from each entity included a member or two of the governing body, the entity’s attorney, the entity’s manager and other staff members.

’3. The representatives were not able to reach any settlement agreement. Representatives of each entity were of the opinion that settlement was being impeded because the settlement positions of the parties were not being correctly communicated by the representatives back to their respective governing bodies. Accordingly, as a last resort, it was agreed that the only way to ensure that the settlement discussions were being effectively communicated was to have a joint meeting of the governing bodies.

’4. The joint meeting was held in executive session and the reasons for the prior impasses and a basis for resolving them were discussed. No agreement was reached during the executive session, but as a result of it, additional meetings of the negotiating teams took place and ultimately a tentative settlement agreement was reached.

’5. In addition to the litigation considerations requiring the joint meeting to be held in executive session, each entity was concerned that the public’s interest was best served by conducting the meeting in privacy, for the reason that the proposals for modifications in water service between the two entities could have led to a substantial amount of land-investment speculation and panic sales and purchases.

’6. The entities made it clear in public announcements at the time of the joint executive session that any settlement agreement arrived at between the two entities would be only ‘tentative’ in nature, and subject to further public hearings and input, environmental impact studies and the review by other governmental agencies having jurisdiction over the subject matter, including the local Agency Formation Commission of Santa Barbara County and perhaps the Regional Coastal Commission.’

I. The Legality of The Executive Session

The first question presented is whether the above described executive session held jointly by the city council and the water district, accompanied by their legal advisers, was proper under the terms of the Ralph M. Brown Act, section 54950 et seq. of the Government Code (hereinafter ‘Brown Act’). The city and the district would justify the executive session under one or all of the following rationale since all agree that no express provision of the Brown Act provides for such an executive session: [FN1] (1) the attorney-client privilege (Evid. Code, §§ 952-954) (2) the exclusionary rule relating to negotiations in compromise of litigation (Evid. Code, § 1152) and (3) the ‘official information’ privilege (Evid. Code, § 1040). Each will be discussed below in that order.

A. The Attorney-Client Privilege

Despite the fact that the Brown Act contains no express provision permitting a legislative body to meet with its attorney in executive session, both the courts and this office have implied such an exception to the act. In 1960, this office recognized the necessity for such meetings in 36 Ops.Cal.Atty.Gen. 175 (1960). Ultimately, case law engrafted such an exception on the Brown Act. Thus, in Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, the Court held that a legislative body of a local entity, in that case a county board of supervisors, could meet with its attorney within the proper limits of the attorney-client privilege.

The scope of the attorney-client privilege is presently codified in sections 950 through 962 of the Evidence Code (all unidentified section references in Part I are to the Evidence Code.) As codified, it is a rule of evidence. The main operative provision is section 954 of that Code, which essentially provides that a client may refuse to disclose a confidential communication with his attorney, and the attorney may likewise claim the privilege unless otherwise instructed by the client. However, the privilege is not restricted to a court or similar hearing where it is to be raised as a shield against testimonial compulsion. In response to a suggestion that it should be so restricted, the court is the Sacramento Newspaper Guild case stated that such a ‘view is too narrow’ (263 Cal.App.2d at p. 53) and it permitted the privilege in a Brown Act context to assure private consultation between a local agency and its attorney.

The section which is perhaps most germane to our inquiry is section 952, which defines what constitutes a ‘confidential communication’:

‘As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.’ (Emphasis added.)

The emphasized language, permitting the presence of certain specified third persons appears even more germane when examined in conjunction with the Law Revision Commission Notes to section 952. These state in part:

‘The words ‘other than those who are present to further the interest of the client in the consultation’ indicate that a communication to a lawyer is nonetheless confidential even though it is made in the presence of another person–such as a spouse, parent, business associate, or joint client–who is present to further the interest of the client in the consultation. These words refer, too, to another person and his attorney who may meet with the client and his attorney in regard to a matter of joint concern. This may change existing law, for the presence of a third person sometimes has been held to destroy the confidential character of the consultation, even where the third person was present because of his concern for the welfare of the client. . . .’ (Emphasis added.)

The language emphasized above with respect to the Law Revision Commission’s comments, if taken literally, would appear to justify the executive session under consideration herein. Both the city council and the water district board could urge that they and their attorney met with each other ‘in regard to a matter of joint concern’ within the meaning of section 952, and the explanation thereof. [FN2]

Such a construction, however, would present the anomalous and essentially absurd result that a client could claim a privilege as to a communication with his attorney which was made in the presence of his adversary. In our opinion, the Legislature did not intend such a result in enacting section 952.

The essential element in the attorney-client privilege is the intent on the part of the client that the communication be made in confidence. The presence of an adversary, with or without his own attorney, would nullify that essential element. This is exemplified in the case of Murphy v. Waterhouse (1896) 113 Cal. 467, 470-471 wherein the Court held:

‘. . . Where two persons are negotiating with each other in the presence of the attorney of one of the parties, the very nature of the transaction, and the circumstances surrounding it, are inconsistent with the notion of a confidential communication between one of the parties and his attorney who happens to be present. . . .’

This reasoning would be applicable to the facts under consideration herein where two parties (the city and the water district) meet with each other in the presence of each of their attorneys to negotiate a settlement of potential litigation. ‘[T]he circumstance surrounding . . . [the meeting] are inconsistent with the notion of a confidential communication between . . . [either] of the parties and . . . [its] attorney who happens to be present.’ (Cf. Mission Film Corp. v. Chadwick P. Corp. (1929) 207 Cal. 386, 391, a statement furnished by client to attorney for submission to opposing counsel is not privileged; Scherb v. Nelson (1957) 155 Cal.App.2d 184, 187-188, ‘statements made by the parties to an attorney in the presence of each other, respecting an agreement . . . not privileged.’)

Accordingly, it is concluded that the city and the water district herein may not rely upon the attorney-client privilege to justify the executive session in which their legislative bodies met to settle potential litigation. [FN3]

B. Negotiations In Compromise Of Litigation

As another suggested ground for justifying the executive session between the city council and the water district board, these entities cite section 1152 of the Evidence Code. That section relates to ‘settlement conferences’ and other offers of compromise, and provides:

‘(a) Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his liability for the loss or damage or any part of it.

‘(b) This section does not affect the admissibility of evidence of:

‘(1) Partial satisfaction of an asserted claim or demand without questioning its validity when such evidence is offered to prove the validity of the claim; or

‘(2) A debtor’s payment or promise to pay all or a part of his preexisting debt when such evidence is offered to prove the creation of a new duty on his part of a revival of his preexisting duty.’

This section is clearly an exclusionary rule of evidence with respect to a ‘settlement conference’ held between parties to a potential lawsuit. In order to claim that it also justifies an executive session as an ‘implied exception’ to the Brown Act, this section would also have to have, as its underlying policy or basic purpose, the protection of confidential communications analogous to the attorney-client privilege. However, the purpose of the section is not to foster confidential communications but merely to encourage settlement of disputes with the knowledge that any offers of compromise will not later be used against the offeror in litigation. Thus section 1152 would appear to be solely an exclusionary rule of evidence, with no particular purpose to be served therefrom outside a courtroom setting. That this is so is made clear in Fieldson Associates, Inc. v. Whitecliff Laboratories, Inc. (1969) 276 Cal.App.2d 770, 773, where the court stated:

‘The rule excluding offers of settlement has not generally been regarded as creating a class of privileged communication (4 Wigmore on Evidence (3d ed.) § 1061). . . . [T]he obvious policy of the statute is to avoid deterring parties from making offers of settlement and to facilitate candid discussion which may lead to settlement of disputes. Negotiations might well be discouraged if a party knew that statements made by him (or his failure to make certain statements) might later be used to prove the invalidity of some other claim which he wished to assert. . . .’ (Emphasis added.)

Accordingly, since no ‘class of privileged communication’ is created by section 1152, we conclude that this section may not be relied upon by the city and the water district herein as justification for the executive session held by them to discuss settlement of potential litigation. In short, section 1152 does not, propria vigor, give rise to privileged or confidential matters which need to be protected from disclosure by holding closed meetings of public agencies.

C. The Official Information Privilege

As a third ground for justification of the executive session under consideration herein, the city and the water district cite the official information privilege as set forth in section 1040 of the Evidence Code previously found to section 1881(5) of the Code of Civil Procedure. That section provides.

‘(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

‘(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so and:

‘(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

‘(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.’

Initially, we note that the requester herein essentially asks that we reconsider our prior holdings in which we have implied an exception to the open meeting requirements of the Brown Act to protect privileged or confidential information other than that which falls within the attorney-client privilege.

In a relatively recent letter opinion of this office we had occasion to review completely a number of these holdings and the interrelationship between the Brown Act and other confidentiality provisions applicable to state and local agencies. In letter opinion 76-201 we held: (1) that an individual county supervisor may not legally divulge the contents of an executive session, and (2) that under the then existing law, [FN4] a majority of the board could divulge such information, being watchful however, not to divulge information made confidential by statute. In so holding we reviewed and synthesized almost two decades of holdings of this office as follows:

‘Though this office has not ruled specifically on the question of disclosure of the details of an executive session generally, we have rendered opinions which are of aid in resolving the question.

‘As early as 1958 we ruled upon the question whether the minutes of an executive session were open to public inspection. 32 Ops.Cal.Atty.Gen. 240, 245 (1958). In this opinion, it was noted that as a general proposition, public records were open to inspection. However, it was further noted that confidential information could be withheld under the ‘official privilege’ then set forth in Code of Civil Procedure, section 1881(5). See now, Evid. Code, § 1040. We then held:

‘In the course of their factfinding activities committees of a public agency may obtain information which would come within the privilege of subdivision 5 of section 1881. If the public interest would suffer by the disclosure the agency should invoke the privilege provided for by section 1881, subdivision 5 (City and County of San Francisco v. Superior Court, 38 Cal.2d 156, 161-164; 18 Ops.Cal.Atty.Gen. 231, 234).’ 32 Ops.Cal.Atty.Gen. at 245.

‘Then in 1961 this office, in a letter opinion, considered the question of public disclosure by a school board of material which was presented in an executive session. I.L. 61-93, L.B. 370, p. 49. This opinion concluded: (1) that care had to be taken not to violate section 10751 of the Education Code prohibiting the disclosure of certain ‘personnel information’ regarding pupils, except as provided therein; (2) that the school board could properly refuse to make public evidentiary material under the ‘official privilege’ contained in section 1881(5) of the Code of Civil Procedure; and (3) that the minutes or other records of the executive session should be kept confidential.

‘Several years later, in 44 Ops.Cal.Atty.Gen. 147 (1964), the questions were presented as to (1) whether the minutes of an executive session held under the ‘personnel exception’ of section 54957 should be open to public inspection and as to (2) whether these minutes could be made public by a majority decision of the governing board.

‘As to question (1), it was held:

‘The provisions of Government Code section 54957 constitute a general exception to the requirements of Education Code, section 966, including subdivision (a) thereof which provides that the minutes of all meetings shall be taken and may constitute public records available for publicinspection.

‘To require that the minutes of an executive session held pursuant to Government Code section 54957 for the limited purpose of considering the appointment, employment or dismissal of employees or to hear charges or complaints against an employee must be open to public inspection would destroy the very purpose of section 54957.

‘Section 1002.5 of the Education Code relates only to the formal action of the governing board. The official act of the board, i.e., to appoint, employ or dismiss an employee must be entered in the minutes and be a matter of public record.’ 44 Ops.Cal.Atty.Gen. at 148.

‘As to question (2), after it was noted that the employee has no right to a closed hearing under section 54957, the opinion held:

‘It is solely within the discretion of the board as to whether all or any portion of the minutes other than the formal action (decision) of the board shall be made public. The board, in making such determination, should consider whether the communication was made in confidence and that the public interest would suffer from disclosure. If it so finds it should invoke the privilege granted under Code of Civil Procedure section 1181(5). See City and County of San Francisco v. Superior Court 38 Cal.2d 156, 162-163 (1951); Brotsky v. State Bar, 57 Cal.2d 287, 302-303 (1962); 32 Ops.Cal.Atty.Gen. 240, 245 (1958). On the other hand, if there is no compelling legal reason for keeping the minutes of the executive session confidential and disclosure would not be contrary to the intent of Government Code section 54957, the board’s policy should be to make the minutes available for public inspection. See Government Code section 54950.’ 44 Ops.Cal.Atty.Gen. at 149.

‘In 1968, we wrote an opinion regarding a confidentiality matter in the context of the Ralph M. Brown Act with a little different twist. In our prior opinions we in effect held that the records which memorialized confidential action or information were themselves confidential. In 51 Ops.Cal.Atty.Gen. 201 (1968) we confronted essentially the opposite situation, and held that where records are made confidential by State law, the actions which the records memorialize should also be confidential. Thus, it was held, as to employer-employee negotiations of a local agency which involved a state conciliator of the Department of Industrial Relations, whose records were confidential:

‘We would assume that the ‘records’ of the department relating to investigation, mediation and arbitration of labor disputes pursuant to section 65 of the Labor Code could differ tremendously from case to case and as between particular conciliators. Such records might very from sketchy notes to a complete memorial of what transpired at the negotiations. Regardless, section 65 of the Labor Code and section 1040 of the Evidence Code make such records privileged. By analogy to the Sacramento Newspaper Guild case, supra, we believe that in order that such privilege have meaning, and the confidentiality required by law be maintained, that the deliberations which such records memorialize must also be privileged and confidential.

‘We therefore conclude that under the Ralph M. Brown Act as it is presently constituted, the ‘full board’ may discuss and negotiate in private once a state conciliator has intervened in the proceedings by virtue of the privilege attached to the records of the department.’ 51 Ops.Cal.Atty.Gen. at 206-207.

Cf. I.L. 72-185: Presentation made by Organized Crime Unit of Department of Justice to CCCJ of its activities, where material is based upon confidential records, may be in executive session under State Agency Act, § 11120, et seq.

‘And finally, in 1975 in 58 Ops.Cal.Atty.Gen. 273 (1975), this office held that the records of executive sessions held by the Board of Regents of the University of California to discuss real estate and other fiscal transactions as permitted by section 23101 of the Education Code [Fn. omitted] were not open to the public under the California Public Records Act, noting:

‘. . . If the records of these sessions became public as they were made, then the very success of the transaction might be placed in jeopardy by circumstances changed by the disclosure of information. The most obvious example is that property values might fluctuate. Thus, the whole purpose of the Legislature in providing for executive sessions would be undermined, for there would be no effective confidentiality of matters which it took more than one executive session to conclude.’ 58 Ops.Cal.Atty.Gen. at 278.

‘From the foregoing authorities of this office, it would appear clear under current law:

’1. The purpose of executive sessions is to permit discussions of matters which are of a privileged or confidential nature. [fn. omitted]

’2. The memorialization of such sessions into minutes of other written form requires that such records also be treated as confidential.

’3. Where by law, records themselves are confidential, then the actions which they memorialize, or a discussion of them, should be in executive session.

’4. It, therefore, is immaterial whether the disclosure is of records of executive sessions, or is by verbal disclosure of the details of executive sessions. Either would constitute a disclosure of potentially confidential information. As was stated in 51 Ops.Cal.Atty.Gen. 201, 203 (1968), supra, quoting from a prior informal opinion:

“Although oral testimony may not strictly be a record, it is clear that the purpose of the [confidential record] statute is to prevent disclosure of what transpires during conciliation proceedings. There is no point in making the record confidential if oral testimony as to the representative’s recollection of the proceedings is to be allowed. cf: Carpenter v. Gibson, 80 C.A. (2d) 269, 275.”

’5. If information is specifically made confidential by statute, care should be exercised by the legislative body not to disclose such information except as expressly provided by law. As to other information from an executive session, it is within the discretion of a majority of the legislative body to determine whether such matters may be made public, keeping in mind the ‘official privilege’ and the possible need for continuing confidentiality.’

(See also 61 Ops.Cal.Atty.Gen. 220, 226 (1978), ‘unless there is some other provision such as a specific or general independent confidentiality provision (e.g. the Public Records Act, [Government Code] §§ 6254 and 6255) upon which to base an executive session, the Board [of Police Commissioners] may not meet with the Chief of Police in private; . . . The ‘official privilege’ found in Evidence Code Section 1040 [might be of aid in this respect.]‘; 58 Ops.Cal.Atty.Gen. 839 (1975), board of supervisors may meet with grand jury in executive session which is held in the exercise of the grand jury’s confidential investigatory powers.)

After careful consideration of arguments submitted by the requester, and other interested parties whose views were submitted herein, we reaffirm our prior poinions and the approach taken by this office with respect to the intermeshing of the Brown Act and other confidentiality provisions found in our laws, including the ‘official information’ privilege found in section 1040 of the Evidence Code. We note the reasoning of the Court in the Sacramento Newspapter Guild case, supra, 263 Cal.App.2d 41, pointing out such matters as the following:

‘[The Brown Act] is not a microcosm, however, but one element in a structure of constitutional and statutory policies covering the powers, duties and procedures of local agencies of government.’ (Id. at p. 52)

‘. . . The courts assume that in enacting a statute [the Brown Act] the Legislature was aware of existing, related laws and intended to maintain a consistent body of statutes . . . Thus there is a presumption against repeals by implication; they will occur only where the two acts are so inconsistent that there is no possibility of concurrent operation, or where the later provision gives undebatable evidence of an intent to supersede the earlier; the courts are bound to maintain the integrity of both statutes if they may stand together . .

Also relevant when the seeming inconsistencies appear in separate codes is the rule declaring that the codes blend into each other and constitute a single statute for the purposes of statutory construction . . ..’ (Id. at pp. 54-55)

And finally, ‘. . . In recommending the bill which became the Brown Act, the Assembly Interim Committee on Judiciary gave no clue that it had even considered the statutory lawyer-client privilege of public boards. Indeed, the committee professed no attempt to cope with the entire gamut of disclosure problems in local government. [fn. omitted]

It is this approach, exemplified in the Sacramento Newspaper Guild case, supra, that this office has followed, both before and after the decision in that case, to insure that the Brown Act does not ‘swallow up’ all other essential confidentiality provisions applicable to governmental agencies where they hold meetings subject to the Brown Act, or the similar act applicable to state agencies (Gov. Code, § 11120 et seq.) [FN5]

In affirming our prior holdings, we find support in the recent case of Henderson v. Board of Education (1978) 78 Cal.App.3d 875. That case stated, after quoting extensively from this office’s publication ‘Secret Meeting Laws Applicable To Public Agencies’ at the point wherein we summarized our opinions on the ‘less than a quorum exception’:

‘. . . The Attorney General’s position in this respect has consistently adhered to the less than a quorum exception (Cf. 51 Ops.Cal.Atty.Gen. 201 (1968); 57 Ops.Cal.Atty.Gen. 209 (1974).) True the opinions of the Attorney General are not binding on the courts (Lucas v. Board of Trustees, 18 Cal.App.3d 988 [96 Cal. Rptr. 431]), but in the absence of controlling authority we deem the rationale thereof persuasive since the Legislature is presumed to be cognizant of that construction of the statute. . . .’ (Id. at p. 883; emphasis added)

In sum, we affirm this office’s consistent approach for two decades that the Brown Act is not, in the words of Justice Friedman in the Sacramento Newspaper Guild case, supra, ‘a miscrocosm’ but interacts with, and must be read in conjunction with, other provisions in our laws relating to privilege and confidentiality. [FN6]

Returning to the specific question at hand–the executive session between the city and the water district–we fail to see how section 1040 of the Evidence Code, set forth in full above, could provide a blanket authorization for the legislative bodies of these two entities to have met in executive session to discuss settlement of their potential lawsuit. We assume that the city and water district are correct in their statement of additional facts that ‘[t]he proposals for modifications in water service between the two entities could have led to a substantial amount of land-investment speculation and panic sales and purchases’ and that, therefore, ‘[t]he public’s interest was best served by conducting the meeting the private.’ However, the ‘public’s best interest’ is not an exception to the Brown Act unless that interest may be related to material already privileged, or already confidential by statute.

Thus, section 1040, the ‘official information’ privilege in the Evidence Code, grants in subdivision (a) thereof an absolute privilege from disclosure, and in subdivision (b) a conditional privilege from disclosure with regard to ‘information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed to the public prior to the time the claim of privilege be made.’ The language of section 1040 clearly presupposes that the ‘official information’ has already been acquired before the privilege can be claimed. Therefore, a public body, or two public bodies, could not predicate a joint executive session on the basis of ‘official information’ which they were about to aquire from each other unless that information was already independently privileged or confidential.

Apropos is the similar problem we ruled upon in 61 Ops.Cal.Atty.Gen. 220 (1978), supra. In that opinion a chartered city’s board of police commissioners was required to meet with the chief of police to direct his activities. Despite the board’s belief that it would be against the public interest to hold these meetings in open sessions, we held, after discussing the Brown Act and prior opinions of this office, as follows:

‘Applying these principles to the question of meetings between the Board and the chief of police, we hold that unless there is some other provision such as a specific or general independent confidentiality provision (e.g., the Public Records Act, §§ 6254 and 6255) upon which to base an executive session, the Board may not meet with the chief of police in private. Section 6254, subdivision (f), regarding police investigations and section 6255, a general codification of the ‘official privilege,’ would appear to be of appreciable aid in this respect. (Cf. letter opinion cited in 58 Ops.Cal.Atty.Gen., supra, 839, 840, to CCCJ, 72-185.) (Likewise, so might the ‘official privilege’ found in Evidence Code section 1040.

‘In so concluding we note that the result reached herein may appear harsh. However, the question is whether the Legislature has authorized the Board to conduct all its ‘sensitive’ business with the chief of police in private. In our view it has not. (Cf. Bailey v. Superior Court (1977) 19 Cal.3d 970, 977.) Authority for executive sessions must therefore be found in the explicit terms of the Act, or implied from some other confidentiality provision such as that which attaches to confidential records. Insofar as this may be deemed an inadequate solution, the problem appears to be one for legislative resolution. [Fn. omitted]‘

Whether any of the information discussed by the city and the water district could have qualified for executive session treatment based upon an already existing privilege, or an already existing public records act confidentiality, is beyond the scope of this opinion and beyond the scope of this office to determine. As we noted in a letter opinion several years ago, wherein we were asked whether a particular meeting could qualify for executive session under the attorney client privilege, where it was allegedly held to discuss ‘potential litigation’:

‘The function of this office is not to resolve factual disputes, or disputes as to conflicting inferences which may arise from such facts, but to render opinions on legal questions.’ (Id. at I.L. 75-28 p. 3)

Nor do we believe that it is the function of this office to investigate in detail all matters which may have occurred at an executive session and then rule upon whether any of the matters discussed therein may have qualified for executive session treatment as privileged or confidential material. We believe that in such cases we should merely provide the quidelines, which we have attempted to do herein.

We note that it may be that a meeting such as the one between the city and the water district herein could conceivably qualify to be held partially in executive session and partially in public, depending upon the matters under discussion. If, however, such a severance would be impractical, then, absent a change in the law with respect to the requirements of the Brown Act, public agencies attempting to settle such disputes will be required to find means to do so other than holding meetings in executive session between their full legislative bodies.

II Civil Actions Under Government Code, Section 54960

The second question presented involves section 54960 of the Government Code (all unidentified section references in Part II are to the Government Code), the civil enforcement provisions of the Brown Act. That section provides:

‘Any interested person may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body.’

The question is whether in counties which have a county counsel the district attorney has authority to bring the actions provided for in section 54960. However, more specifically the requester District Attorney desires a ruling on whether the district attorney or the county counsel may act as ‘civil prosecutor’ pursuant to section 54960. Any contemplated action would, therefore, not be on behalf of the county or any of its officers but would be in the nature of a quasi-criminal action brought in the name of the People in aid of the enforcement of the criminal laws.

The request for our opinion on this point was apparently precipitated by a misunderstanding of our holding in 61 Ops.Cal.Atty.Gen. 283 (1978) wherein we ruled, inter-alia, that ‘[t]he district attorney in a county which also has a county counsel may not in his official capacity being an action pursuant to section 54960 of the Government Code’ (Id. at pp. 284, 293-295.) In that opinion, however, we did not intend to meet or to decide the issue as to whether the district attorney or county counsel shall act as ‘civil prosecutor.’ We presumed that the county, or its officers [FN7] were substantively interested in the matter discussed or to be discussed in an executive session, allegedly erroneously held, and we ruled that in a true civil action (not in one nominally civil but actually quasi-criminal) brought to test the legality of the executive session on behalf of the county, or its officers, the county counsel and not the district attorney was to bring the action. That this was the case is evident from the conclusion as to question three of that opinion (Id. at p. 295) where we stated:

‘Accordingly, it is concluded that any civil action which may properly be brought by the county or any of its officers in their official capacity pursuant to section 54960 cannot be brought by the district attorney in a county such as Del Norte which also has a county counsel.’ (Emphasis added.)

The underscored language, we believe, demonstrates that the actions which were discussed therein were true civil actions; therefore, the county counsel would be bringing them as the civil attorney in the name of the county or its officers and not as ‘civil prosecutor’ in the name of the People of the State of California.

It has been suggested, however, that any action involving the county that was brought under the Brown Act would find the county in the position of the defendant. This supposition may account for part of the misunderstanding regarding our ruling above. We acknowledge that an action by the county (or its officers) would not be the usual case. This is evident from our language quoted above wherein we wrote in terms of any civil action ‘which may be properly brought’ by the county or its officers. However, we do not believe that it would be beyond the realm of possibility that a county could and would properly bring an action pursuant to section 54960 of the Government Code. We will discuss some examples after nothing that the term ‘person’ may include the state and its subdivisions. (See People v. Centr-O-Mart (1950) 34 Cal.2d 702, and cases cited therein.)

1. The instant opinion request presents an excellent example of a potential lawsuit at the instance of a county under section 54960. A city and a water district have met in executive session to discuss water problems–a matter we would presume of vital interest to the county and its citizens. The board of supervisors might very well instruct the county counsel to bring an action pursuant to section 54960 of the Government Code to test the legality of that meeting, and to prevent further meetings of that nature if they are declared to have been improper by the court.

2. The prior opinion which gave rise to the instant request presents another example. In that opinion we were asked to rule on the propriety of the board of supervisors discussing job performance of county officers and employees in executive session. Conceivably, the county counsel, as the legal representative session. county officers as well as the board of supervisors, could bring an action as attorney for these officers to test the legality of the board’s actions with respect to executive sessions. [FN8]

3. As a final example, we can conceive of the possibility that a subsidiary and sensitive county board or commission which is subject to the Brown Act, such as the planning commission (see Gov. Code, § 54952.5) has been holding questionable executive sessions, much to the alarm of the board of supervisors, the public and the media. The board of supervisors might instruct the county counsel under such circumstances, to sue the planning commission under section 54960. [FN9]

With these preliminary comments, we reach the issue actually presented in the instant request: whether the district attorney or the county counsel is to act as the ‘civil prosecutor’ under section 54960 of the Government Code. It is the conclusion of this office that the Legislature intended that neither was to be ‘civil proseuctor’ under section 54960. Therefore, any suits brought at the county level would be brought not as ‘quasi-criminal actions’ but as true civil actions, with the county counsel acting merely as the attorney for the county or its officers. In short, the county counsel would not bring the actions upon his initiative but upon request of the board of supervisors, or some other county office or officer, as its attorney. (See 61 Ops.Cal.Atty.Gen. 283 (1978), supra, and our explanation of our holding in that opinion, set forth above).

Initially, we note that the Brown Act was originally enacted in 1953. (Stats. 1953, Ch. 1671, § 1) as originally enacted it contained no specific civil or criminal enforcement provisions. In 1960 the District Court of Appeal, Second District, decided the case Adler v. City Council (1960) 184 Cal.App.2d 763. The action was brought by a taxpayer for declaratory relief and for an injunction to invalidate a rezoning ordinance and to prevent its enforcement. Part of the action was based upon alleged violations of the Brown Act by the planning commission. With respect thereto, the Court held:

‘We think Turk v. Richard, supra, 47 So.2d 543, correctly reflects the spirit of our Brown Act and we conclude that the dinner gathering of June 13, 1958, did not violate the statute, even upon the assumption that that law did apply to charter cities at the time in question.

‘But if the contrary were true it would not follow that the action of the zoning commission (much less that of the city council) in granting a conditional zone change was invalidated by the commission’s violation of the act.

‘It provides no penalty for infraction and no method of enforcement. Ordinarily this implies absence of intent to make the statute mandatory, existence of intent to leave it in the discretionary class. ‘The requirements of a statute are directory, not mandatory, unless means be provided for its enforcement.’ (Gowanlock v. Turner, 42 Cal.2d 296, 301 [267 P.2d 310].) See also Whitley v. Superior Court, 18 Cal.2d 75, 80 [113 P.2d 449]; Abbott v. City of San Diego, 165 Cal.App.2d 511, 522, 524 [332 P.2d 324]; Jefferson Union Sch. Dist. v. City Council, 129, Cal.App.2d 264, 266 [277 P.2d 104]. Of course, violation of a directory statute does not result in invalidity of the action so taken (see 82 C.J.S., § 374, p. 869).

‘However, in view of the public purpose of the Brown Act, which is directed toward the conduct of public officials, we believe that section 1222, Government Code, and section 177, Penal Code, are here applicable and give mandatory complexion to the act. Government Code, section 1222: ‘Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.’ Penal Code, section 177: ‘When an act or omission is declared by a statute to be a public offense, and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor.’

‘This is one of those instances in which the prescribed penalty for violation of the law precludes all others . . . and leaves private persons, though taxpayers, without any right to declaratory relief or injunction incidental thereto. . . .

‘Specifically we hold that the dinner gathering of June 13, 1958, was not a meeting within the purview of the Brown Act, and that the two public hearings held after filing of Blanco’s application for zone change fully complied with the act, assuming it to govern meetings of a charter city.’ (Emphasis added)

Thus, the court in Adler held that despite the absence of enforcement provisions in the Brown Act, any wilfull violation thereof was a misdemeanor under the omnibus provisions of section 1222 of the Government Code and section 177 of the Penal Code, that the criminal penalty was exclusive and that, therefore, clearly interested persons such as county taxpayers had no civil remedy in declaratory relief or injunction. [FN10]

Immediately after the decision in the Adler case the Legislature enacted amendments to the Brown Act to modify the holdings therein, including, inter alia, the holding with respect to civil and criminal remedies, by the addition of sections 54959 and 54960 of the Government Code. These sections provide (additions subsequent to the original enactment are in parenthesis and deletions are in brackets. See Stats. 1961, ch. 1671, § 5-6.) as follows:

Section 54959:

‘Each member of a legislative body who attends a meeting of such legislative body where action is taken in violation of any provision of this chapter, with knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor.’

Section 54960:

‘Any interested person may commence an action by [either] mandamus, [or] injunction (or declaratory relief) for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency (or to determine the applicability of this chapter to actions or threatened future action of the legislative body).’

Thus section 54960 was enacted to provide a civil remedy to ‘any interested person’–the civil remedy that was denied to such a person by the holding in Adler. Significantly, section 54959, providing a specific criminal sanction, was enacted in terms which provide that a violation of the Brown Act is a crime in only very limited circumstances. Whereas under Alder any wilfull violation of the Brown Act would have been a misdemeanor, not so under section 54959. ‘Action’ must be taken at such meeting and, more improtantly for our purposes, the member must attend an illegal meeting ‘with knowledge of the fact that the meeting is in violation thereof.’ [FN11] We take official notice of the fact that public officers will, in most instances, perform their duties in good faith. Additionally we presume that in questionable cases, a board or commission will seek the advice of counsel before acting. This being the case, it is clear that the Legislature intended that only in the most flagrant case would a violation of the Brown Act be a crime. In short, the purpose and scope of the civil remedies are much broader than the purpose and scope of the criminal sanction.

In construing the present intent of section 54960 ‘it is proper to consider the history and purpose of the enactment [ ]‘ (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805; see also People v. Ventura Refining Co. (1928) 204 Cal. 286, 291.) The history and purpose of the enactment of section 54960 leads to the conclusion that its purpose was to fill the void and provide a true civil remedy as well as to insure that public officers would not be branded criminals for ‘guessing-wrong’ with respect to their duties under the Brown Act. Its purpose was not to provide a civil remedy of a quasi- criminal nature in aid and furtherance of the enforcement of the criminal law, as was the case with the abatement proceedings found in the Red Light Abatement Act discussed in Board of Supervisors v. Simpson (1951) 36 Cal.2d 671.

Citation to the Simpson case brings us to the point of discussion of the case law and our prior opinions as to who may or should properly bring a civil action under a particular law, the district attorney or the county counsel. It has been suggested that our holding in 61 Ops.Cal.Atty.Gen. 283 (1978), supra, with respect to the county counsel bringing civil actions pursuant to section 54960 of the Government Code, is in conflict with both our prior and current opinions in this area, as well as with case law, particularly Board of Supervisors v. Simpson, supra, and People v. Centr-O-Mart (1950) 34 Cal.2d 702. We disagree with that suggestion.

As to our opinions, it has been suggested that a letter opinion issued November 8, 1977 (I.L. 61-13, L.B. 369/678) sets forth the correct approach and our 1978 published opinion is in conflict with it. That letter opinion considered the question of whether section 91001, subdivision (b) of the Government Code, contained in the Political Reform Act of 1974, insofar as it designates the district attorney as the ‘civil prosecutor’ under that act, was intended to mean district attorney or county counsel in a county which has both officers. That letter opinion relied primarily upon the comprehensive analysis contained in 38 Ops.Cal.Atty.Gen. 121 (1961) with respect to the analytical framework drawn from prior case law and opinions of this office on the question of whether the district attorney or the county counsel should bring a particular action in questionable situations. In that 1961 opinion, we stated:

‘The first question is whether the county counsel may be authorized to bring actions under Welfare and Institutions Code section 2603 [fn. omitted] which provides in part that a county’s claim against a county supported indigent who acquires property shall be ‘enforced by action against him by the district attorney of the county on request of the board of supervisors.’ (Italics added.) This question arises because of Government Code section 26529 which provides in part for prosecution by the county counsel, instead of the district attorney, of ‘all civil actions and proceedings in which the county or any of its officers is concerned or is a party.’ [fn. omitted] Noncriminal actions are not necessarily ‘civil actions’ under this statute. The courts have held in several instances that cases which might normally be considered civil are actually the responsibility of the district attorney. Primary responsibility for noncriminal actions or proceedings turns on whether they would be ‘in aid of and auxiliary to the criminal law’ (Board of Supervisors v. Simpson, 36 Cal.2d 671, 674) because the district attorney, as public prosecutor, must closely supervise transactions related to enforcement of the criminal law. Thus in Simpson and in 8 Ops.Cal.Atty.Gen. 110, the district attorney rather than the county counsel was held responsible for bringing ‘civil’ red light abatement actions. In 28 Ops.Cal.Atty.Gen. 239 the district attorney was deemed responsible for preparing the papers in proceedings to determine mental illness since the commitment procedures and the problems of sanity defenses are closely related to criminal law enforcement. By contrast, in 28 Ops.Cal.Atty.Gen. 293, the county counsel was deemed responsible for passing on mileage and similar claims presented by members of the board of supervisors. The important factors emphasized in the above opinions are the existence of a single course of wrongful conduct which requires both criminal and civil remedies, the similarity of the evidence to that required in a criminal prosecution, the bringing of the action in the name of the people rather than the county, the placement of responsibility for similar actions, and the practice, if any, of district attorneys or county counsels in accepting a particular responsibility.’ 38 Ops.Cal.Atty.Gen. at pp. 121-122, footnotes omitted) [FN12]

It would, therefore, appear appropriate to analyze section 54960 of the Government Code as to the ‘important factors’ emphasized by the courts and our prior opinions. This analysis follows:

1. ‘Existence of a single course of wrongful conduct which requires both criminal and civil remedies.’ This factor appears to be lacking with respect to section 54960. As explained at length above, the scope of the civil and criminal violations of the Brown Act are completely different. This factor, coupled with the rather unique ‘mens rea’ or ‘scienter’ requirement for a criminal violation of the act (actual knowledge that the meeting attended violated the act) demonstrates that very seldom would ‘a single course of wrongful conduct . . . require [ ] both criminal and civil remedies’. (Compare, e.g., Board of Supervisors v. Simpson, supra, 36 Cal.2d at 675, ‘In general, any person maintaining a public nuisance is guilty of a misdemeanor;’ People v. Centr-O-Mart, supra, 34 Cal.2d at 703, ‘Section 17100 makes any violation of the provisions of the [Unfair Practices] act a misdemeanor;’ I.L. 65-131, both civil and criminal enforcement of county ordinances pertaining to building, zoning and health functions of district attorney; I.L. 61-13, LB 369/678, abatement of public nuisances under county zoning ordinances, violations of which are misdemeanors, is responsibility of district attorney.) [FN13]

2. ‘[T]he similarity of the evidence to that required in a criminal prosecution.’ For the reasons just enumerated above with respect to the first factor there would in most cases be ‘no similarity of the evidence,’ because the scope of sections 54959 and 54960 are completely different and in most cases the Legislature intended that there would be no crime.

3. ‘[T]he bringing of the action in the name of the people rather than the county.’ Section 54960 of the Government Code contains nothing indicating that any action thereunder shall be in the name of the people. Compare Board of Supervisors v. Simpson, supra, 36 Cal.2d at p. 673; People v. McKale (1978) 148 Cal. Rptr. 181, 184-185 and Bus. & Prof. Code, §§ 17204, 17206, 17535, 17536. [FN14] As we have demonstrated strated at the outset herein, a county or its officers could be interested in an alleged Brown Act violation. Thus, any action properly brought by the county or its officers would be in its or their name. (Compare Gov. Code, § 100 subd. (b).)

4. ‘[T]he placement of responsibility for similar actions.’ The only actions similar to those provided in section 54960 of which we are aware are found in the acts requiring open meetings of ‘state agencies’ (Gov. Code § 11120 et seq) and of the Legislature and its committees (Gov. Code § 9027 et seq.). Sections 11129 and 9031 of the Government Code provide identical civil remedies for ‘any interested person’ in mandamus, injunction or declaratory relief as to alleged violations of these open meeting requirements as are found in the Brown Act. One significant difference, however, is readily apparent in these acts. There are no specific criminal enforcement provisions. The inclusion of the specific criminal enforcement provision in the Brown Act and the later omission of any such provision in these other acts strongly indicates an intent on the part of the Legislature to make the civil remedies exclusive. “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 735; see also, e.g. Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 8.) [FN15] Since criminal sanctions are absent with respect to these ‘similar actions’ at the state level, the strong inference arises that section 54960 as well as sections 11129 and 9031 of the Government Code were intended as only true civil actions, in no way quasi-criminal in nature, and consequently in no way within the prosecutorial functions of the district attorney. [FN16]

This fourth factor, ‘the placement of responsibility for similar action’, suggests another factor considered of significance by both the courts and this office; that is, whether the civil enforcement statute, or other statutes, actually name the ‘district attorney’ as the officer who is to bring a particular action. If it does, this is considered indicative of a legislative intent that the district attorney and not the county counsel shall bring the action, or be at least primarily responsible for doing so. (See, e.g., Board of Supervisors v. Simpson, supra, 36 Cal.2d at 673: ‘That is a factor with some significance as a particular statutory provision should prevail over a general one;’ 61 Ops.Cal.Atty.Gen. 40, 42-43 (1978). See also generally the statutes dealt with in 56 Ops.Cal.Atty.Gen. 53, 54 (1973); 28 Ops.Cal.Atty.Gen. 239 (1956); 8 Ops.Cal.Atty.Gen. 110 (1946); I.L. 77-159.) Section 54959, of course, does not name the district attorney, but names only ‘interested parties.’

In this regard, it is also interesting to note the Court’s observation in Safer v. Superior Court (1975) 15 Cal.3d 230, 236, wherein the Court held that a district attorney did not have the power to bring a civil contempt proceeding arising from private litigation:

‘By the specificity of its enactments the Legislature has manifested its concern that the district attorney exercise the power of his office only in such civil litigation as that lawmaking body has, after careful consideration, found essential. An examination of the types of civil litigation in which the Legislature has countenanced the district attorney’s participation reveals both the specificity and the narrow perimeters of these authorizations.’

5. Finally, with respect to the factors in 38 Ops.Cal.Atty.Gen. 121 (1961) supra, we reach a consideration of ‘the practice, if any, of district attorneys or county counsels in accepting a particular responsibility.’ This office is not aware of any practice with respect to the civil enforcement provisions of the Brown Act vis a viz the district attorney or the county counsel. We have outlined instances where an action by the county counsel may be possible as a true civil action at the behest of the county or its officers. However, insofar as either acting as a civil prosecutor as an ‘interested party’ within the meaning of section 54960, we were not aware of the fact that either district attorneys or county counsels even contemplated that they had standing to do so until we received the instant request for our opinion. The absence of such assertion of standing for almost two decades under the act would itself appear to be an administrative construction by district attorneys and county counsels that no such authority was intended by the enactment of section 54960. [FN17]

However, without even considering the factors discussed above, we find a comparison of the differences as to the purpose of the Red Light Abatement Act ruled upon in the leading case of Board of Supervisors v. Simpson, supra, 36 Cal. 671, and the purpose of section 54959 of the Brown Act virtually controlling herein. In Simpson the question was whether the district attorney or county counsel should bring an action under the Red Light Abatement Act. The Court reasoned:

‘. . . While actions to abate nuisances are considered civil in nature . . . the abatement of houses of prostitution is in aid of and auxiliary to the enforcement of the criminal law. . . .’ (Id. at p. 674.)

However, as to section 54960 of the Brown Act, it is clear from its history, explained at length above, that its purpose was to provide a civil remedy where one had been denied to a taxpayer by the Court in Adler v. City Counsel, supra, 184 Cal.App.2d 763. The court, as noted, believed the omnibus criminal sanction provisions (Gov. Code § 1222 and Pen. Code § 177) completely excluded any civil remedy. In short, the purpose of section 54959 was not to be in aid of and auxiliary to the enforcement of the criminal laws, but was to be in aid of the enforcement of the civil laws.

One further matter requires some extended discussion, that is, the case People v. Centr-O-Mart, supra, 34 Cal.2d 702. That case held that the district attorney could bring an action in the name of the People of the State of California to enjoin violations of the Unfair Practices Act under section 17070 of the Business and Professions Code which provides that ‘any person’ may bring such an action. [FN18] It has been suggested that this case additionally supports the conclusion that a district attorney may bring an action on behalf of the People under the civil enforcement provisions of section 54960 of the Brown Act. It is to be recalled, however, that section 54960 does not provide that ‘any person’ may bring the actions provided therein, but rather provides that ‘any interested person’ may do so. Considering the background of section 54960, to provide a civil remedy where it had been denied by case law (the Adler case) we believe this difference in language is significant and that it was not intended to appoint either the district attorney or the county counsel as ‘civil prosecutor’ thereunder. For example, under the wording of section 17070 of the Business & Professions Code (‘any person’) a resident of Del Norte County clearly could bring an action to enjoin unfair business practices in San Diego County. However, under the Brown Act, that would not in our opinion have been the legislative intent. [FN19] As noted in Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d at 46:

‘A provision of the Brown Act, section 54960, authorizes any ‘interested person’ to seek legal restraint against violations or threatened violations. Defendants do not question the Newspaper Guild’s standing to sue. The complaint alleges that the Newspaper Guild is a labor organization composed of professional working newspaper men and women. Whether that allegation makes out adequate standing to sue is at least questionable. (See United States ex rel. Stowell v. Deming (1927) 19 F.2d 697, 698, cert. den. 275 U.S. 531 [72 L.Ed. 410, 48 S.Ct. 28]; Adler v. City Council of Culver City (1960) 184 Cal.App.2d 763, 775 [7 Cal.Rptr. 805]; Associated Boat Industries v. Marshall (1951) 104 Cal.App.2d 21, 22 [230 P.2d 379].) The right to disclosure is an attribute of citizenship, not possessed in any increased degree by persons or groups whose interest in access to news is economic. (See Oxnard Publishing Co. v. Superior Court (1968) (Cal. App.) [68 Cal.Rptr. 83].) Section 54950′s broad declaration of the public’s right to disclosure should logically extend standing to any county elector. Had the county raised the issue in the trial court, amendment of the complaint to add appropriate parties and allegations would have been little more than a matter of mechanics. Under the circumstances, there is substantial compliance with section 54960.’ (Emphasis added) Thus, the Court ‘extended’ the standing under section 54960 ‘to any county elector.’ We can also envision a ‘special interest’ in the subject matter to be discussed by a public board which would give a nonresident of the local jurisdiction standing as an ‘interested person.’ However, as a general proposition, the ‘interest’ intended by the Legislature in enacting suction 54960 would appear to have been co-existent with the jurisdiction of the board or body holding the meeting. (Compare Bozung v. Local Agency Formation Co. (1975) 13 Cal.3d 263, 272; Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 100-101.)

In short, it is the opinion of this office that section 54960 was intended by the Legislature only to provide a true civil remedy for ‘interested persons’, the same as is found in Code of Civil Procedure, sections 526 (injunction), 1060 (declaratory relief) and 1085 (mandamus). To our knowledge, the fact that one of these remedies may be available against a public officer, or a public body, does not mean that the district attorney, as public prosecutor, may bring the action. This appears to be true as to such civil remedy even if the failure of the public officer to perform his or her duties is also a misdemeanor. [FN20]

In summary, we conclude that section 54960 of the Government Code was not intended to invest either the district attorney or the county counsel with powers as ‘civil prosecutor’ under the Brown Act. The section was not intended to be in aid and futherance of and auxiliary to the criminal laws. It was intended to be in aid of the civil law–to provide a civil remedy after one was denied by judicial decision in Adler v. City Council. That section 54960 was not intended to be ‘quasicriminal’ in nature is manifest from the fact that the scope of civil actions under section 54960 is broader than criminal actions under section 54959 of the Brown Act; therefore, only in the unusual case will a violation of the act also be a misdemeanor. This conclusion is also manifest from the fact that the open meeting requirements of the laws applicable to ‘state agencies’ and the Legislature both contain similar civil enforcement provisions as are found in the Brown Act. Yet neither of these laws contain criminal sanctions. This is a further indication that these remedies, whether found in the Brown Act or the similar state acts, were not intended to fall within the prosecutorial functions of the district attorney. We so conclude.

GEORGE DEUKMEJIAN

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. The Brown Act, of course, requires all meetings of ‘legislative bodies’

of ‘local agencies’ as defined therein to be open to the public unless expressly otherwise provided therein. Express exceptions to the open meeting requirements are found in Government Code sections 54957 and 54957.6. The usual ones utilized are the ‘personnel exception’ found in the former section, and the exception permitting closed meetings to instruct an entity’s labor negotiator found in the latter section.

FN2. We note parenthetically that the initial negotiations between representatives of each governing body constituting less than a quorum of the body and staff members can be justified under the ‘less than a quorum exception’ to the Brown Act. Similar meetings to discuss joint water problems between two adjoining counties were held to be proper in letter opinion I.L. 76-174 on that basis.

FN3. Interestingly, the county board of supervisors in Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41, 51-52, also sought unsuccessfully to justify its meeting with its opponents on the basis of the attorney-client privilege as presently codified. The facts as found by the court, however, completely nullified any possibility of invoking such privilege.

FN4. See now Gov. Code, § 54957.2 which provides for a minute book of executive sessions, or recordings thereof, which are confidential and available only to the legislative body. We additionally ruled that under the theory of our prior opinions not even a majority of the board of supervisors could release information otherwise made confidential by this statute which was contained in the minutes.

FN5. It has been suggested that we are in error in applying the Sacramento Newspaper Guild case to the ‘official information’ privilege found in section 1040(b)(2) of the Evidence Code, pointing out that as a rule of evidence the party objecting to the claim of privilege may have a hearing and ruling thereon by the court pursuant to section 915 of the Evidence Code.

However, as a general proposition, agendas of public meetings are distributed which should give a clue to ‘interested parties’ as to the scope of executive sessions, and reasons therefor, so as to permit an action in mandamus, injunction or declaratory relief (Gov. Code, § 54960). Section 915 of the Evidence Code may be brought into play with respect to this ‘civil enforcement’ of the Brown Act. Similarly, if a claim of confidentiality is made pursuant to the California Public Records Act, section 6259 provides for an ‘in camera’ hearing pursuant to section 915 of the Evidence Code. Insofar as one might argue that situations will arise where it cannot be determined in advance that privilege or confidentiality will be claimed, our response is that that is a problem which is not peculiar to such a claim but is just as applicable to any alleged violation of the Brown Act which might arise on the spur of the moment.

FN6. In so concluding we are mindful of the Court’s language in Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540, a criminal discovery case, followed in Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123-124, a civil discovery case, that ‘Evidence Code section 1040 . . . represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.’ Section 1040 of the Evidence Code is applicable ‘only to information acquired in confidence by a public employee’ (See also discussion in Shepherd, supra, 17 Cal.3d at p. 124 et seq.) However, there are certainly numerous records which are specifically made confidential by statute, but may not have been received in confidence, and may in fact be generated by the public agency itself. For example, minutes of executive sessions under the Brown Act itself are specifically made confidential, and are available only to the legislative body, or a court if a violation of the Brown Act is alleged to have occurred (Gov. Code, § 54957.2). Also, section 6254 of the Government Code sets forth many items which need not be disclosed to the public, but may not have been acquired ‘in confidence.’ Finally, section 6255 of the Public Records Act sets forth a general exemption from disclosure, which is broader in scope than anything contained in section 6254 (which itself would incorporate by reference through subdivision (k) Evidence Code section 1040), and would include records other than those ‘received in confidence.’ See Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 664; Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 649-650, 657; Yarish v. Nelson (1972) 27 Cal.App.3d 893, 902. Since the confidentiality provisions of the Public Records Act are broader in scope than the ‘official information’ provilege of Evidence Code, section 1040, we believe that the Public Records Act should control when a discussion of sensitive records is to be undertaken by a public agency, as to whether the discussion should be in executive session. We doubt that the Court in the Pitchess and Shepherd cases intended to require that legitimate state secrets be broadcast to the public if not within the scope of section 1040 of the Evidence Code.

FN7. Indeed, a reading of the opinion in its entirety will disclose that the district attorney-requester therein appeared to be substantively interested in the matters discussed in executive session by the board of supervisors, that is, salaries and job performance of elected and other county officers.

We can envision situations where a matter to be discussed in executive session might vitally affect the district attorney’s office. In such situations, we see no particular legal objection to the district attorney bringing an action pursuant to section 54960 as an ‘interested party’, although a court, reading section 26529 strictly, might decree otherwise. The district attorney essentially would be bringing the action ‘in pro per’ qua district attorney and would not be acting on behalf of the People as public prosecutor.

Likewise, we see no particular legal objection to the district attorney bringing an action pursuant to section 54960 as a private citizen. Again, the district attorney would not be acting on behalf of the People as public prosecutor. These types of situations, however, are not at issue herein.

FN8. It has been suggested that such a suit would involve a clear conflict of interest on the part of the county counsel in that he is appointed by the board, and may be removed by them for ‘misconduct’ (See Gov. Code, § 27640,)

It is possible that such a suit, however, could be brought with the full ‘blessing’ of the board of supervisors in order to clarify its duties. Also, that a suit by the county counsel as attorney for county officers on an opposite side from the board of supervisors is not an impossibility is exemplified in a recent action in San Diego County precipitated by Proposition 13. In Board of Supervisors of the County of San Diego v. Gerald J. Lonergan, Auditor and Controller, et al. San Diego Super. Ct. No. 421865, the county counsel apparently opted to represent the county auditor-controller and treasurer-tax collector in a suit brought by the board against such officers. The board was represented by outside counsel. Of course, no statutory ‘conflict of interest’ would arise under Gov. Code, §§ 1090 et seq., 87100 et seq., or 1125 et seq. Nor would the common law concept of conflict of interest arise in the sense that a public officer (the county counsel) would be using his office for his private gain. (See, e.g., 26 Ops.Cal.Atty.Gen. 5 (1955). Whether it would be ‘unethical’ for the county counsel to be involved in such a suit would appear to depend upon the facts of each case–including such matters as prior advice given to the board of supervisors. Finally, even if a conflict would be deemed to exist, this would not transfer the ‘civil functions’ to the district attorney. The board could authorize outside counsel for the county officers in appropriate cases. See also 78 Ops.Cal.Atty.Gen. 293 (1956), county counsel and not district attorney is to pass upon legality of claims of boards of supervisors, and no conflict of interest exists; 62 Ops.Cal.Atty.Gen. 54 (1979), Opinion No. CV 77/243(2/6/79), the County Counsel and not the district attorney may bring an action to recover alleged salary increases paid to members of a county board of supervisors and no conflict of interest exists.

FN9. The fact that the county counsel is attorney for both the board of supervisors and the planning commission would not appear any different than the situation faced by this office many times, where we are requested by one client to represent them against another client. See. e.g., Dittus v. Cranston (1959) 53 Cal.2d 284.

FN10. The court’s holding in Adler with respect to what is a meeting has, of course, long since been nullified. (See discussion in Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d at pp. 46-51.)

FN11. See 12 Assem. Interim Com. Rep. on Government Organization, The Right To Know (Jan. 11, 1965) pp. 48-49, 59-61. See also Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41 (1968).

FN12. Footnote 2 of this opinion contains a detailed analysis of the interrelationship between the district attorney provisions and the county counsel provisions of the Government Code, and an explanation with respect to apparent inconsistencies therein as to the division of duties between these officers. See also in this respect, 56 Ops.Cal.Atty.Gen. 53, 54-55 (1973).

FN13. On abatement of nuisances, see however 15 Ops.Cal.Atty.Gen. 231, (1950), county counsel in specified chartered county brings nuisance abatement proceedings; I.L. 69-118, ‘abatement of a public nuisance by civil action rests with the County Counsel.’

FN14. A hearing was granted in this case by the California Supreme Court, and was argued before that court on January 11, 1979. It, however, is illustrative of the particular Business & Professions Code provisions cited.

FN15. But compare Adler v. City Council, supra, 184 Cal.App.2d at pp. 774-775, quoted in the text above with respect to the omnibus misdemeanor provisions of section 1222 of the Government Code, and section 177 of the Penal Code.

FN16. We are not aware of the district attorney of Sacramento County asserting jurisdiction to civilly enforce these acts against the Legislature, or the multitude of state boards and commissions subject to the ‘state agency act.’

FN17. Interestingly, Assem. Bill No. 3221 (1977-1978 Reg. Sess.) sponsored by the requester herein, would have amended the Brown Act to appoint the Attorney General, District Attorneys, County Counsels and City Attorneys as civil prosecutors, with appropriate concurrent jurisdiction. This bill died in committee.

This bill also would have deleted the unique ‘mens rea’ or ‘scienter’ requirement found in section 54959 of the Brown Act. As to this latter point, this was apparently the third time legislation was unsuccessfully introduced to expand the criminal sanctions of the Brown Act. See: ‘The Brown Act, Sunshine Law Clouded By Loophole’ by Henry Drager, Los Angeles Daily Journal, January 25, 1979.

FN18. Business & Professions Codes, sections 17200 et seq. now provide specific enforcement provisions for that law, including specific authority for the district attorney to bring actions thereunder. (See Bus. & Professions Codes, §§ 17204, 17205.)

FN19. Our grounds for distinguishing People v. Centr-0-Mart, supra, would also apply to distinguish our holding in 41 Ops.Cal.Atty.Gen. 178 (1963) wherein it was held that a district attorney could bring an action under the provisions of then section 391 of the Election Code to compel cancellation of an illegal voting registration. That section permitted ‘any person’ to do so.

FN20. It is to be recalled that Adler v. Superior Court, supra, 184 Cal.App.2d at p. 774-775 pointed out that under Government Code, section 1222, any wilfull failure of a public officer to perform his or her duty is a misdemeanor. An action in mandate would lie for ‘any interested person’ to require the officer to perform the duty. Yet, we do not expect that the District Attorney of Sacramento would claim it was his prosecutional prerogative to bring mandate actions against the Governor, and all state officers, departments, and boards and commissions, every time he believed they were not properly performing their duties. Nor do we believe the district attorneys of the other 57 counties would believe they had such powers with respect to all local officers.

62 Ops. Cal. Atty. Gen. 658 Meeting Notices for Legislative Bodies (1979)

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Office of the Attorney General

State of California

62 Ops. Cal. Atty. Gen. 658

Opinion No. 79-811

October 31, 1979

THE HONORABLE PHILLIP D. WYMAN

ASSEMBLYMAN

THIRTY-FOURTH DISTRICT

THE HONORABLE PHILLIP D. WYMAN, ASSEMBLYMAN, THIRTY-FOURTH DISTRICT, has requested an opinion on the following questions:

1. Under the provisions of section 54956 of the Government Code, must the legislative body of a special district give the 24 hour notice of a special meeting to the local newspaper of general circulation without a written request having been submitted in advance by the newspaper for such notice?

2. Under the provisions of section 54954.1 of the Government Code, what would be considered a reasonable charge for the mailing of notice of meetings as specified therein?

CONCLUSIONS

1. Section 54956 of the Government Code does not require the legislative body of a special district to give the 24 hour notice of a special meeting to the local newspaper of general circulation unless the newspaper has requested such notice in advance.

2. What would constitute a ‘reasonable charge’ within the meaning of section 54954.1 of the Government Code is essentially a factual question. The estimated cost of providing such service predicated upon any reasonable cost accounting basis would satisfy the provisions of the section.

ANALYSIS

The Ralph M. Brown Act, contained in sections 54950-54961 of the Government Code [FN1], generally provides that legislative bodies, as defined therein, of local agencies, as defined therein must hold their meetings open to the public. ‘Local agency’ includes special districts (§ 54951).

As to ‘regular meetings’ of a local agency the act generally provides that the time for holding them shall be specified by ordinance, resolution, or other appropriate rule (§ 54954). That specification essentially acts as a notice of

such meetings for the public. [FN2] As to special meetings of a local agency, section 54956, the section which is the subject of the first question presented herein, provides:

‘A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering personally or by mail written notice to each member of the legislative body and to each local newspaper of general circulation, radio or television station requesting notice in writing. Such notice must be delivered personally or by mail atleast 24 hours before the time of such meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by the legislative body. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the legislative body a written waiver of notice. Such waiver may be given by telegram. such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes.’ (Emphasis added.)

The first question presented is whether the legislative body of a special district must give the 24 hour notice provided for by this section to the local newspaper of general circulation without a written request having been submitted in advance to the district.

The statute is plain and unambiguous in its language. It states that the 24 hour notice of a special meeting must be given ‘to each local newspaper of general circulation, radio or television station requesting notice in writing.’ [FN3] The section nowhere specifies nor requires that such notice be given without such written request. The applicable rules of construction in this type of case were set forth recently by the California Supreme Court in People v. Belleci (1979) 24 Cal.3d 879, 884 as follows:

‘It is settled that “We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658 [147 Cal. Rptr. 359, 580 P.2d 1155].) Stated otherwise, ‘When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.’ (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148]; accord, People v. Boyd (1979) 24 Cal.3d 285, 294 [155 Cal.Rptr. 367, 594 P.2d 484]; Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155 [137 Cal.Rptr. 154, 561 P.2d 244].)

‘We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absured results. (See, e.g., Younger v. Superior Court (Mack) (1978) 21 Cal.3d 102, 113-114 [145 Cal.Rptr. 674, 577 P.2d 1014]; Silver v. Brown (1966) 63 Cal.2d 841, 845 [48 Cal.Rptr. 609, 409 P.2d 689].) Neither consequence is threatened here.’

Initially, we note that both the courts and this office, in discussing section 54956, have done so on the assumption that the media must request notice to be entitled thereto. (See Torres v. Board of Commissioners (1979) 89 Cal.App.3d 545, 551; 61 Ops.Cal.Atty.Gen. 323, 325, fn. 2 (1978); 32 Ops.Cal.Atty.Gen. 240, 245 (1958).) No reported case nor opinion of this office has held or even suggested that a newspaper is entitled to notice of a special meeting pursuant to section 54956 if it has not requested such notice. Thus, we need only determine whether the failure to give such notice falls within the exceptions to the ‘plain meaning rule’ of statutory construction discussed by the Court above.

The basic inquiry would appear to be what consequences or results would follow where no newspaper or other form of the media has requested notice of special meetings and hence receives none. As to special districts, we note that they are required to give written notice of all regular and special meetings to all property owners who have filed a written request therefor (sec. 54954.1) [FN4]. Thus, the main consequence would be that the media might not know of the meeting, and hence might not have a representative present to observe and report upon the proceedings. However, the media, whether it be a newspaper,

radio station or television station may protect itself against such a consequence by simply filing a request pursuant to section 54956. Thus, the consequences which follow from the failure to automatically notify all newspapers, and radio and television stations in the jursidiction (which in a metropolitan area could be a major undertaking) can hardly be said to be ‘absurd’ so as to require a deviation from the plain meaning of the statute.

Furthermore, we do not belive that to follow the plain meaning of the statute would frustrate the manifest purposes of the legislation. The manifest purpose of the legislation appears to be to permit, but not require, that the media have an opportunity to be present at special meetings of legislative bodies, and report thereon as they see fit. Apparently the Legislature struck a balance between automatic notice to the media and no notice at all. Having struck such a balance, it then placed the burden upon the media to take the initiative to request such notice. Had the Legislature intended that the media be automatically notified of special meetings it could have easily omitted from the statute the words ‘requesting notice in writing.’

Finally, that the Legislature intended what it said in section 54956 with respect to requiring the media to request notice of special meetings is also supported by and manifest from a recent addition to the Ralph M. Brown Act. Section 54956.5 is added to the act by Chapter 223, Statutes of 1979. It provides with respect to emergency meetings of a local agency as follows:

‘In the case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, a legislative body may hold a special meeting without complying with the 24-hour notice requirement of Section 54956.

‘For purposes of this section, ‘emergency situation’ means any of the following:

‘(a) Work stoppage or other activity which severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body.

‘(b) Crippling disaster which severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body.

‘However, each local newspaper of general circulation and radio or television station which has requested notice of special meetings pursuant to Section 54956 shall be notified by the presiding officer of the legislative body, or designee thereof, one hour prior to the special meeting by telephone and shall exhaust all telephone numbers provided in the most recent request of such newspaper or station for notification of special meetings. In the event that telephone services are not functioning the notice requirements of this section shall be deemed waived, and the legislative body, or designee thereof, shall notify such newspapers, radio stations, or television stations of the fact of the holding of the special meeting, the purpose of the meeting, and any action taken at the meeting as soon after the meeting as possible.

‘Notwithstanding the provisions of Section 54957, the legislative body shall not meet in executive session during a meeting called pursuant to this section.

‘All special meeting requirements, as prescribed in Section 54956 shall be applicable to a meeting called pursuant to this section, with the exception of the 24-hour notice requirement.

‘The minutes of a meeting called pursuant to this section, a list of persons who the presiding officer of the legislative body, or designee thereof, notified or attempted to notify, a copy of the roll call vote, and any actions taken at such meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible.’ (Emphasis added.)

It is seen that in this new section the Legislature has perpetuated in clear and unambiguous terms the requirements of section 54956 that the media must have requested notice of special meetings in advance to be entitled thereto. Had it intended that the ‘parent section’, section 54956, be read other than as written, it presumptively would have cast section 54956.5 in different language.

Accordingly, it is concluded that the legislative body of a local district is not required to give the local newspaper of general circulation notice pursuant

to section 54956 unless the newspaper has requested such notice.

2. The second question presented is what would constitute a ‘reasonable charge’ within the meaning of section 54954.1 for the mailed notice of regular and special meetings of ‘districts’ to requesting property owners. Section 54954.1 is set forth in full at note 4, supra. It states as pertinent that ‘[t]he legislative body may establish a reasonable annual charge for sending such notice based on the estimated cost of providing such service.’

Our research has disclosed no case law nor opinions of this office which would answer this question. However, it is our opinion that the answer thereto is essentially a factual question and is essentially found in the language of the statute itself–that is, the charge is to be based upon ‘the estimated cost of providing such a service.’ It would appear that any ‘estimate’ which has a reasonable cost accounting basis would satisfy the provisions of the section.

GEORGE DEUKMEJIAN

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. All section references are to the Government Code unless otherwise

indicated.

FN2. But see section 54954.1 with respect to ‘districts’ infra.

FN3. In 53 Ops.Cal.Atty.Gen. 245 (1970) this office concluded that the notice to the media must be actual delivery at least 24 hours in advance of the special meeting; that mere mailing of the notice 24 hours in advance was not sufficient.

FN4. Section 54954.1, which is limited to districts, and thus is not applicable to other local agencies, provides:

‘The legislative body of any district which is subject to the provisions of this chapter shall give mailed notice of every regular meeting, and any special meeting which is called at least one week prior to the date set for the meeting, to any owner of property located within the district who has filed a written request for such notice with the legislative body. Any mailed notice required pursuant to this section shall be mailed at least one week prior to the date set for the meeting to which it applies except that the legislative body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting.

‘Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for notice shall be filed within 90 days after January 1 of each year. Any request for notice, or renewal request, filed pursuant to this section shall contain a description of the property owned by the person filing the request. Such description may be in general terms but shall be sufficient enough to readily identify such property.

‘The legislative body may establish a reasonable annual charge for sending such notice based on the estimated cost of providing such a service.’

The Ralph M. Brown Act does not contain a similar provision applicable to other local agencies.

63 Ops. Cal. Atty. Gen. 153 Discussing Employee Workload and Establishing New Positions in Closed Session(1980)

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Office of the Attorney General

State of California

63 Ops. Cal. Atty. Gen. 153

Opinion No. 79-1207

February 26, 1980

THE HONORABLE DAVID G. KELLEY

THE HONORABLE DAVID G. KELLEY, Assemblyman, Seventy-Fifth District, has requested an opinion on the following question:

Under the provisions of The Ralph M. Brown Act, are the following subjects legitimate subjects for executive sessions by the governing body of a local agency:

(a) establishment of new administrative positions;

(b) the work load of existing positions and individuals?

CONCLUSION

(a) Under the provisions of the Ralph M. Brown Act, the subject of the establishment of new administrative positions would not usually be a proper subject for an executive session by the governing body of a local agency.

(b) Under the provisions of the Ralph M. Brown Act, the subject of the work load of particular individuals could be a proper subject for executive session by the governing body of a local agency if (1) the individuals are ‘employees’ within the meaning of section 54957 of the act and (2) work load is defined to include the work the employees do as well as the work assigned to the positions or employees. Whether the work load of existing positions would be a proper subject for executive session would depend upon whether the discussions are with regard to the positions in the abstract, or whether they involve discussions of the work which is being performed by the individuals who are the incumbents of such positions. In the latter case, the discussions would be a proper subject for executive session so long as the positions are those of ‘employees’ within the meaning of section 54957 of the act.

ANALYSIS

The Ralph M. Brown Act is found in sections 54950 et seq. of the Government Code. [FN1] The act requires that ‘legislative bodies’ of ‘local agencies’ as defined therein (which includes the governing board) hold meetings which are open to the public, unless otherwise excepted in the act or by some other overruling legal principle, such as the attorney-client privilege. (See generally, §§ 54951-54951.7, 54952-54952.5, 54953, 54957, 54957.1, 54957.6; Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors (1968) 263 Cal.App.2d 41). The basic purpose of the act is set forth in section 54950, and provides that ‘. . . [t]he people . . . 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’ and they ‘. . . insist on remaining informed so that they may retain control over the instruments they have created.’

The Ralph M. Brown Act does, however, recognize that there are certain situations where this basic policy of ‘government in the sunshine’ is outweighed by the necessity for confidentiality. One of these arises in the area of personnel matters. Thus, the so-called ‘personnel exception’ to the open meeting requirements is found in section 54957, [FN2] which provides:

‘Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding executive sessions with the Attorney General, district attorney, sheriff, or chief of police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the public’s right of access to public services or public facilities, or from holding executive sessions during a regular or special meeting to consider the appointment, employment or dismissal of a public employee or to hear complaints or charges brought against such employee by another person or employee unless such employee requests a public hearing. The legislative body also may exclude from any such public or private meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.

For the purposes of this section, the term ‘employee’ shall not include any person appointed to an office by the legislative body of a local agency; provided, however, that nonelective positions of city manager, county administrator, city attorney, county counsel, or a department head or other similar administrative officer of a local agency shall be considered employee positions; and provided, further that nonelective positions of general manager, chief engineer, legal counsel, district secretary, auditor, assessor, treasurer or tax collector of any government district supplying services within limited boundaries shall be deemed employee positions . . ..’ (Emphasis added.)

In 61 Op.Cal.Atty.Gen. 283, 291 (1978), this office pointed out that the primary purpose of the ‘personnel exception’ is to ‘protect the employee from public embarrassment’ with the ancillary purpose being ‘to permit free discussions of personnel matters by a local government body.’ It is to be noted that section 54957 is applicable to public ‘employees’, although paragraph two sets forth an enumeration of certain appointive positions which, generally speaking, would be ‘offices’ in the legal sense. [FN3]

This request for our opinion posits the issues as to whether (a) the establishment of new administrative positions or (b) the work load of existing positions are legitimate subjects for executive sessions. If they are, they are so because they fall within the ambit of the ‘personnel exception’ to the open meeting requirements of the Ralph M. Brown Act. [FN4] We thus must examine the manner in which section 54957 has been interpreted and upheld.

In 61 Ops.Cal.Atty.Gen. 283 (1978) supra, this office was presented with the question whether the ‘personnel exception’ permits executive sessions to discuss specific salaries or the job performance of ‘employees’ as defined in section 54957 without according the employee the right to notice and opportunity to request a public hearing. (Id., at p. 286). In that opinion we summarized our prior holdings to demonstrate that section 54957 is not restricted to the initial employment or final discharge of an employee, but that the term ‘employment’ as used therein is to be given a broad meaning. We stated:

‘This office has previously held that specific salaries and job performance are proper subjects for discussion in executive session under section 54957. Thus, in 59 Ops.Cal.Atty.Gen. 532, 533 (1976), this office concluded ‘[t]he governing board of a school district is authorized by the provisions of Government Code section 54957 to meet in executive session to discuss and to evaluate the performance of its superintendent.’ We noted arguments against such holding but then stated:

‘Nevertheless, this office consistently has advised public agencies that the purpose in permitting an executive session concerning personnel matters is to avoid undue publicity and embarrassment to the affected employee. See, e.g., 33 Ops.Cal.Atty.Gen. 32 (1959); cf., Krausen v. Solano County Junior College Dist., 42 Cal.App.3d 394, 404, (1974); Lucas v. Board of Trustees, 18 Cal.App.3d 988, 991 (1971).

‘In a letter dated October 9, 1970, to the San Diego County Counsel, we concluded that the term ‘employment’ contained in section 54957 ‘. . . is broad enough to allow local public agencies, including governing boards of school districts, to consider all personnel matters relating to an individual employee at executive sessions and not simply matters relating to initial employment or final discharge.” (59 Ops.Cal.Atty.Gen., supra, at page 535.)

Likewise in letter opinions this office has held that discussion of salaries of specific employees is the proper subject for an executive session. Thus, in I.L. 65-78 we held that the salary and job performance of employees of a hospital district could be discussed in executive session. It was noted that such discussions relate to continued ‘employment.’ As to specific salaries, it was held:

‘. . . [T]he question of . . . [an] individual’s salary is an integral part of an evaluation of that individual’s past performance and the terms or conditions of his future employment. Such discussions, dealing solely with an evaluation of an employee’s performance, may properly be conducted in executive session.’ (id. at p. 3.)

See also I.L. 66-184 wherein it was held that discussions of personal qualifications and work history of the manager-engineer of a sanitary district to determine, inter alia, the amount of salary which he should be paid were properly held in executive session. Compare, I.L. 68-117, improper to discuss general salary proposals for all teachers in executive session.” (Id. at pp. 286-287.) [FN5]

Thus, as stated in the letter to the County Counsel of San Diego County, referred to in the quotation above, the ‘personnel exception’ ‘is broad enough to allow public agencies . . . to consider all personnel matters relating to an individual employee at executive sessions.’ (Attorney General’s Unpublished Opinion, I.L. 70-183.)

From the foregoing, the conclusion to the questions asked herein are evident. The crucial question is whether a personnel matter relating to an individual employee is involved.

(a) Under the provision of the Ralph M. Brown Act, the subject of the establishment of new administrative positions would not usually be a proper subject for an executive session by the governing body of a local agency. This is so because the positions usually are not yet in existence, and hence have no incumbents. Accordingly, the discussions would be as to personnel matters generally, or in the abstract. However, we can envision the possibility that in some situations the question might arise in the context of a reorganization which might involve a discussion of the job performance of particular individuals. If such were the case, then the sessions would then fall within the ambit of the rule that section 54957 permits executive sessions to discuss the job performance of individuals, so long as the individuals are ‘employees’ within the meaning of section 54957.

(b) With respect to work load, we understand this term as set forth in the question to include the work an employee does (hence ‘personnel matter’) as well as just the work assigned to the position or employee. Accordingly, under the provisions of the Ralph M. Brown Act, the subject of the work load of particular individuals would be a proper subject for executive session by the governing body of a local agency if the individuals are ‘employees’ within the meaning of section 54957 and the discussions include the work the employees are doing. Whether the work load of existing positions would be a proper subject for executive session would depend upon whether the discussions are with regard to the positions in the abstract, or whether they involve discussions of the work which is being done by the individuals who are the incumbents of such positions. If the latter is the case, the discussions would be a proper subject for executive sessions so long as the positions are those of ‘employees’ within the meaning of section 54957.

GEORGE DEUKMEJIAN

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. All section references are to the Government Code unless otherwise indicated.

FN2. It is seen that section 54957 provides also for executive sessions with respect to the security of public buildings, services and facilities. The other provision contained in the act permitting executive sessions relates to labor negotiations, and is found in section 54957.6, which states:

FN3. Prior to the enactment of Chapter 959, Statutes of 1975, the ‘personnel exception’ contained in section 54957 applied to both ‘public officers’ and ‘public employees’. For further background on the intent of the 1975 amendment, see 59 Ops.Cal.Atty.Gen. 266 (1976).

FN4. This assumes that the question is not asked in the context of labor negotiations. Section 54957.6, supra, note 2, might provide a separate basis for exemptions if they arise in the context of instructing the board’s representative with respect to ‘salaries, salary schedules, or compensation paid in the form of fringe benefits’. See, generally, 61 Ops.Cal.Atty.Gen. 323, 328 (1978).

FN5. We ultimately concluded that a board of supervisors could not discuss the salaries of county employees in executive sessions because of the special provisions of section 25307 which requires that ‘[a]ll meetings conducted by the board pertaining to salaries of county employees shall be open and public except as provided in section 54957.6.’

67 Ops. Cal. Atty. Gen. 111 Can County Advisory Board Meet With Counsel in Closed Session to Discuss Litigation Involving Board of Supervisors? (1984)

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CA-AG (California Attorney General Opinions)

67 Ops. Cal. Atty. Gen. 111

Office of the Attorney General

State of California

Opinion No. 83-1107

March 20, 1984

THE HONORABLE ADRIAN KUYPER

COUNTY COUNSEL

ORANGE COUNTY

THE HONORABLE ADRIAN KUYPER, COUNTY COUNSEL, ORANGE COUNTY, has requested an opinion on the following question:

Is an advisory committee which has been created by the Board of Supervisors to advise it on airport matters entitled to meet in closed session with counsel with respect to litigation to which the board is the sole party representing the interests of the county?

CONCLUSION

Assuming that such a meeting with counsel which is held by the advisory committee properly relates to its powers and duties to advise the Board of Supervisors on airport matters, such committee may meet with counsel in closed session to discuss litigation to which the board is the sole party representing the interests of the county.

ANALYSIS

Orange County has by ordinance established an Airport Commission (“Commission”) to advise it on airport matters. [FN1] Apparently the Board of Supervisors (“Board”) is involved in litigation involving airport matters where it is the sole party representing county interests. The question presented for resolution herein is whether the Commission is entitled to meet in closed session with counsel with respect to this litigation.

We conclude that assuming such a meeting properly relates to its powers and duties to advise the Board on airport matters, the Commission may meet with counsel to discuss such litigation.

Advisory commissions such as the Commission are “legislative bodies” within the meaning of the Ralph M. Brown Act, Government Code section 54950 et seq. (Gov.Code, § 54952.3.) Accordingly, their meetings are required to be open and public unless otherwise specifically provided in the act or as may be implied

from some other provision of law such as the attorney-client privilege. (Gov.Code, § 54953; 65 Ops.Cal.Atty.Gen. 412, 413 (1982).)

The suggestion has been made that since the litigation names only the Board, and since the Board has the duty to “direct and control the conduct of litigation in which the County … is a party” (Gov.Code, § 25203), only the Board may properly meet with counsel in an attorney-client relationship. We, however, do not believe that the attorney-client relationship at the county level need be so narrowly applied. In reaching our conclusion we will first analyze the attorney-client privilege in the county context and then analyze the implied exception carved out by case law for such privilege in relation to the Ralph M. Brown Act.

An examination of both the statutory law and the case law leads us to conclude that when an action is brought against only the Board as a board, and not in their individual capacity, the “client” for purposes of the attorney- client privilege is in reality the county as an entity, and not merely the Board. From this conclusion, it follows that any county board, commission, committee or officer having a legitimate official interest in a particular lawsuit may confer with counsel in an attorney-client relationship. [FN2] To illustrate, a committee such as the Commission involved herein could be replete with expertise which could be of invaluable aid to the Board in advising it with respect to the possible conduct of litigation or the settlement of such litigation.

As to the statutory law, the attorney-client (or “lawyer-client”) privilege is codified in section 950 et seq. of the Evidence Code. “Client” is defined in section 951 as follows:

“As used in this article, ‘client’ means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.” (Emphases added.)

“Person,” for purposes of the Evidence Code, “includes a … public entity.” (Evid.Code, § 175.) “Public entity” is defined in section 200 of the Evidence Code as follows:

” ‘Public entity’ includes a nation, state, county, city and county, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic.” (Emphasis added.)

Thus, the statutory law as set forth in the Evidence Code contemplates that a “county” as well as any other public entity may be the client for purposes of the attorney-client privilege. (See also Gov.Code, § 26520: “The district attorney shall render legal services to the county …” which duty devolves upon the county counsel in counties which have established that office. (See

Gov.Code, §§ 26529, 27642; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 53.)

With respect to case law, Ward v. Superior Court (1977) 70 Cal.App.3d 23 is instructive. Watson, the county assessor, had brought an action against Ward, the chairman of the Board of Supervisors, and other county employees alleging defamation and violation of civil rights. The Court of Appeal determined that the trial court erred in granting Watson’s motion to disqualify the county counsel who was representing the defendants. Watson’s theory was that since the county counsel had advised him in his official capacity, then to represent Ward and the other defendants was in violation of the Rules of Professional Conduct as being employment adverse to a former client. The Court of Appeal held, based upon the duties of the county counsel set forth in the County Charter, which are analogous to those set forth in the Government Code with respect to general law counties, that vis-a-vis the county, the county, and not Watson had been the client. Accordingly, the county counsel should not have been disqualified. Thus, at page 32, the court stated:

“The Los Angeles County Counsel has only one client, namely, the County of Los Angeles. [FN2] (See Woolwine v. Superior Court, 182 Cal. 388, 391 [188 P. 569].) Of course, the county acts through its board of supervisors, its officers and its employees, much as does a private corporation. Under the mandate of Los Angeles County Charter article VI, section 21, the county

counsel must represent county officers in civil actions, but only as to matters wherein such officers acted in their representative capacity and within the scope of their official duties. Thus the county counsel’s representation of county officers is analogous to the representation afforded officers of a corporation by corporate counsel.” (Fn. omitted.)

And at page 35, the court further stated:

“The tax assessor’s office is merely an arm of county government over which the board of supervisors has direct supervision. Thus Government Code section 25303 provides as follows: ‘The board of supervisors shall supervise the official conduct of all county officers, and officers of all districts and other subdivisions of the county, and particularly those charged with the assessing, collecting, safekeeping, management, or disbursement of the public revenues. It shall see that they faithfully perform their duties, direct prosecutions for delinquencies, and when necessary, require them to renew their official bond, make reports and present their books and accounts for inspection.’ [FN4]

“Any communication between Watson and the county counsel, pursuant to the discharge of their respective duties, concerning the operation of the assessor’s office could not be considered a secret confidential communication so as to bar the county, acting through the board of supervisors, from obtaining that information. The assessor is an agent of the county. (People v. Vallerga, 67 Cal.App.3d 847, 876 [136 Cal.Rptr. 429].) As such, the assessor has a duty of full disclosure to his principal, the county. Communications by the assessor with respect to the operations of his office made to the county counsel are not subject to a claim of privilege as between the assessor and members of the board of supervisors, who are charged by law with the duty of supervising the conduct of the assessor’s office. [FN5]” (Fn. omitted.)

By the same reasoning, when the Board controls county litigation which names it as the sole defendant, it does so on behalf of the county. The county is in reality the client. Accordingly, the fact that the board acts representatively does not necessarily exclude other county officers, employees or boards from also having an interest in the matter in their official capacity so as to seek advice from counsel. As noted, “the county counsel’s representation is analagous to that afforded officers of a corporation by corporate counsel.” It is axiomatic that corporations can only act through their officers and employees. Likewise, a county can only act through its officers and employees. (See also, generally, Orinda-County Fire Protection Dist. v. Frederickson and Watson Co. (1959) 174 Cal.App.2d 589, 592-593; People ex rel. Dept. of Public Works v. Glen Arms Estates, Inc. (1964) 230 Cal.App.2d 841, 854 et seq.: “… our task being to determine the extent of the privilege where the client is the state. In reality the problem is the same where the client is a body politic as when the client is a corporation. …” )

Thus, the statutory law and the case law support the conclusion that the Commission discussed herein may, in the proper course of its duties, confer with the county counsel in an attorney-client relationship with respect to litigation controlled by the Board, since the county counsel has essentially only one client, the county, with respect to county functions. Thus, we reach the ultimate question, may the Commission confer with counsel in closed session?

That question gives rise to an examination of Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41. That case held that the Ralph M. Brown Act, which requires “legislative bodies” of “local agencies” as defined therein to generally hold their meetings in public did not override the attorney-client privilege. Thus, the court noted that the attorney-client privilege may be invoked at public meetings, as follows:

“Plaintiffs do not dispute the availability of the lawyer-client privilege to public officials and their attorneys. They view it as a barrier to testimonial compulsion, not a procedural rule for the conduct of public affairs. The view is too narrow. [ [FN8] ] The privilege against disclosure is essentially a means for achieving a policy objective of the law. The objective is to enhance the value which society places upon legal representation by assuring the client full disclosure to the attorney unfettered by fear that others will be informed. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 396, [15 Cal.Rptr. 90, 364 P.2d 266]; Holm v. Superior Court, supra, 42 Cal.2d at pp. 506-507; 8 Wigmore on Evidence (McNaughton rev. 1961) § 2291; Comment, Attorney-Client Privilege in California, 10 Stan.L.Rev. 297-300 (1958); Louisell, Confidentiality, Conformity and Confusion: Privileges in Federal Court Today, 31 Tulane L.Rev. 101 (1956).) The privilege serves a policy assuring private consultation. If client and counsel must confer in public view and hearing, both privilege and policy are stripped of value. Considered in isolation from the Brown Act, this assurance is available to governmental as well as private clients and their attorneys. (Id., at pp. 53-54; emphases added.) The court then went on to conclude that the Ralph M. Brown Act did not impliedly repeal the attorney-client privilege with respect to governmental agencies, and that the two could coexist. Thus the court stated:

“The two enactments are capable of concurrent operation if the lawyer- client privilege is not overblown beyond its true dimensions. As a barrier to testimonial disclosure, the privilege tends to suppress relevant facts, hence is strictly construed. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 396.) As a barrier against public access to public affairs, it has precisely the same suppressing effect, hence here too must be strictly construed. As noted earlier, the assurance of private legal consultation is restricted to communications ‘in confidence.’ Private clients, relatively free of regulation, may set relatively wide limits on confidentiality. Public board members, sworn to uphold the law, may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law. Neither the attorney’s presence nor the happenstance of some kind of lawsuit may serve as the pretext for secret consultations whose revelation will not injure the public interest.

To attempt a generalization embracing the occasions for genuine confidentiality would be rash. The Evidence Code lawyer-client provisions may operate concurrently with the Brown Act, neither superseding the other by implication.” (Id., at p. 58; emphases added.) And finally, in the context of the particular case which gave rise to the question of the interrelationship of the Ralph M. Brown Act and the attorney- client privilege, the court stated:

“Because the Brown Act did not abolish the statutory opportunity of boards of supervisors to confer privately with their attorney on occasions properly requiring confidentiality, the preliminary injunction is too broad. The preliminary injunction is modified by adding at its end a new paragraph 6, to read as follows:

” ’6. This preliminary injunction shall not prevent the Sacramento County Board of Supervisors from consulting privately with the county counsel or

other attorney representing the board under circumstances in which the lawyer-client privilege conferred by sections 950 through 962 of the California Evidence Code may lawfully be claimed.’ ” (Id., at pp. 58-59; emphasis added.)

It is thus seen that the Sacramento Newspaper Guild case held that the attorney-client privilege was in no manner overridden or modified by the Ralph M. Brown Act. [FN3] Accordingly, the Commission as well as the Board may confer in private with counsel insofar as necessary or desirable to perform its duties if properly within the area of privilege. Apropos is the observation of the court in the Sacramento Newspaper Guild case that attorney-client conferences are important to public agencies as to both the “settlement and avoidance of litigation.” We believe that advisory boards such as the Commission involved herein could play a legitimate role in such functions in advising the Board and accordingly could legitimately confer with counsel in the context of the attorney-client privilege, if “not overblown.”

Thus, we conclude that assuming a meeting with counsel which is held by the Commission relates to its powers and duties to advise the Board on airport matters, the Commission may meet with counsel in closed session to discuss litigation to which the Board is the sole party representing the interests of the county.

JOHN K. VAN DE KAMP

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. The Commission’s powers are set forth in section 2-1-6 of the Codified Ordinances of the County which reads as follows:

“The Airport Commission shall be advisory to the Board of Supervisors, and shall have power:

(a) To recommend to the Board of Supervisors plans for the development, maintenance and operation of Orange County Airport and other airports which may be acquired or operated by the County of Orange.

(b) On request of the Board of Supervisors, to advise the Board and make recommendations on any matter pertaining to airports or air transportation.

(c) To make such investigations as it may deem necessary in the exercise of the powers in this section enumerated. The Manager, County Airports Division, shall give full cooperation in any such investigations. (Code 1961, § 21.016; Ord. No. 2873, § 3, 11-4-75).”

FN2. We note that the request for our opinion points out that the Board controls county litigation, and then concludes that since the Committee does not control litigation, “it has no need for direct consultation with counsel.” We do not think the latter conclusion necessarily follows.

FN3. See also Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 823-825; 62 Ops.Cal.Atty.Gen. 150, 152-153 (1979).

68 Ops. Cal. Atty. Gen. 73 Amounts and Reasons for Executive Officers’ Performance Bonuses Subject to CPRA(1985)

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Office of the Attorney General

State of California

68 Ops. Cal. Atty. Gen. 73

Opinion No. 84-1204

April 18, 1985

THE HONORABLE MICHAEL D. BRADBURY

DISTRICT ATTORNEY OF VENTURA COUNTY

THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY OF VENTURA COUNTY, has requested an opinion on the following question:

Are records of the amounts and reasons for performance awards granted to executive managers of a city subject to disclosure under the Public Record Act?

CONCLUSION

Records of the amounts and reasons for performance awards granted to executive managers of a city are subject to disclosure under the Public Records Act.

ANALYSIS

A city in Southern California has a program for giving performance awards to its executive managers of up to 20% of their annual salaries. Each award is contingent upon the executive developing a written and approved performance plan for the year; the objectives must be accomplished with exceptional results. The city manager privately consults with the executive managers and his staff, evaluates the performances, and compensates the executives for any extraordinary efforts.

The question presented for resolution concerns whether the amount of each award and the reasons therefor [FN1] are subject to disclosure under the Public Records Act (Gov.Code, §§ 6250-6265; hereafter “Act”) [FN2] or are exempt from public disclosure pursuant to the “personnel” exception of section 6254 or the “public interest” exception of section 6255. We conclude that neither section 6254 nor section 6255 authorizes nondisclosure here.

The city in question currently discloses to the public the number of executives in the program, the salary range for each executive, the total cost of the awards program, and the average percentage amount for all of the awards.

The reasons asserted for not disclosing to the public the amount of and basis for individual awards are (1) the executives receiving lesser awards might feel publicly embarrassed and (2) the benefits of candid disclosure in the confidential evaluation process might be jeopardized.

Section 6254 states in part:

“Except as provided in Section 6254.7, nothing in this chapter shall be construed to require disclosure of records that are any of the following:

“(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” [FN3]

Section 6255 provides:

“The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly

outweighs the public interest served by disclosure of the record.”

The general scheme of the Act is that unless “public records” (broadly defined in section 6752) are exempt under section 6254 or the public agency can show justification for not disclosing them under section 6255, the agency must make the records accessible to the public under section 6253. (See Braun v. City of Taft (1984) 154 Cal.App.3d 332, 340.)

It should be noted, however, that the Act does not require the withholding of any record from public view. “The exemptions from disclosure provided by section 6254 are ‘permissive, not mandatory; they permit nondisclosure but do not prohibit disclosure.’ ” (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905; Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.3d 931, 941; Black Panther Party v. Kehoe (1974) 42 Cal.3d 645, 656.) While section 6255 “serves as a residuary statutory exemption for balancing privacy interests with the public’s interest in access” (San Gabriel Tribune v. Superior Court (1984) 154 Cal.App.3d 762, 780), the burden is on the public agency to demonstrate that nondisclosure on balance is “clearly” in the public interest. (Braun v. City of Taft, supra, 154 Cal.App.3d 332, 345-346; San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 780.)

The Act “was enacted in 1968 to safeguard the accountability of government to the public, for secrecy is antithetical to a democratic system of ‘government of the people, by the people [and] for the people.’ ” (San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 771-772.) Section 6250 states in part: “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

One aspect of the “people’s business” that requires public disclosure concerns employment contracts. Section 6254.8 states:

“Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255.” We believe that a record specifying the amount of and the reasons for payment of a performance bonus to a public employee comes within the provisions of section 6254.8, thus rendering the nondisclosure provisions of sections 6254 and 6255 inapplicable to such a record.

In the bonus incentive plan of the city in question, the offer of the bonus is the offer of a unilateral contract which the executive accepts and for which he gives “consideration” by the performance of the exceptional services pursuant to the agreed upon performance plan. (See Hill v. Kaiser Aetna (1982) 130 Cal.App.3d 188, 196; Newberger v. Rifkind (1972) 28 Cal.App.3d 1070, 1076; Sabatini v. Hensley (1958) 161 Cal.App.2d 172, 175; Frebank Co. v. White (1957) 152 Cal.App.2d 522, 525-526; Chinn v. China Nat. Aviation Corp. (1955) 138 Cal.App.2d 98, 99-103; Sieck v. Hall, (1934) 139 Cal.App. 279, 294- 295; Redd v. Williams Radiator Co., (1931) 112 Cal.App. 353, 358; Hunter v. Ryan (1930) 109 Cal.App. 736, 738.) No “gift” is involved, and it matters not that the bonus amount is left to the discretion of the city manager and is made contingent upon performance by the executive. (See Civ.Code, § 1611; Frebank Co. v. White, supra, 152 Cal.App.2d 522, 526; Chinn v. China Nat. Aviation Corp., supra, 138 Cal.App.2d 98, 100; Hunter v. Ryan, supra, 109 Cal.App. 736, 738.) Each bonus constitutes “wages” and forms part of the employment contract; it is not retroactive. (See Lucian v. All States Trucking Co. (1981) 116 Cal.App.3d 972, 975-976; Ware v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1972) 24 Cal.App.3d 35, 44, aff’d. sub.nom., Merrill Lynch, Pierce, Fenner & Smith v. Ware (1973) 414 U.S. 117; Sieck v. Hall, supra, 139 Cal.App. 279, 294; Redd v. Williams Radiator Co., supra, 112 Cal.App. 353, 358.) [FN4]

Accordingly, any record specifying the amount of the bonus or the exceptional services for which the bonus is paid manifests provisions of the executive’s employment contract within the scope of section 6254.8. (See 63 Ops.Cal.Atty.Gen. 215, 221 (1980).) We thus conclude that sections 6254 and 6255 are inapplicable to such records under the express provisions of section 6254.8.

Moreover, we believe that neither subdivision (c) of section 6254 nor section 6255 would under their own terms authorize the withholding of the information here.

As with the other exemptions contained in section 6254, the “personnel” exception of subdivision (c) is to be read narrowly. (See San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 772-773; Cook v. Craig (1976) 55 Cal.App.3d 773, 781; Black Panther Party v. Kehoe, supra, 42 Cal.App.3d 645, 653, fn. 7.)

In Braun v. City of Taft, supra, 154 Cal.App.3d 332, 344, the Court of Appeal ruled that letters of appointment and rescission of the appointment of a city transit administrator did not come within the “personnel” exception:

“The letters of June 25 and June 29 contain no personal information. Although reclassification may be embarrassing to an individual (Campbell), in California, employment contracts are public records and may not be considered exempt. (§ 6254.8.) The letters were memoranda of Polston’s appointment to a position and the rescission thereof; they therefore manifested his employment contract. Because the letters regarded business transactions and contained no personal information, the court properly ordered disclosure of the letters.”

In so concluding, the court relied upon language in Sims v. Central Intelligence Agency (D.C.Cir.1980) 642 F.2d 562, 575, that the federal statutory counterpart to subdivision (c) of section 6254 ” ‘was developed to protect intimate details of personal and family life, not business judgments and relationships.’ ”

The Sims case is in full agreement with other federal cases interpreting the federal “personnel” disclosure exception. (See Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n. (D.C.Cir.1980) 627 F.2d 392, 399; Rural Housing Alliance v. U.S. Dep’t. of Agriculture (D.C.Cir.1974) 498 F.2d 73, 77; Robles v. EPA (4th Cir.1973) 484 F.2d 843, 845.) The subject matter that may be covered by the “personnel” exception has been judicially limited to such topics as ” ‘marital status, legitimacy of children, identity of fathers of children, medical conditions, welfare payments, alcoholic consumption, family fights, reputation, and so on.’ ” (Sims v. Central Intelligence Agency, supra, 642 F.2d 562, 574.) The critical question is whether the information associates the person with the business of the public agency or with an aspect of the individual’s personal life. (Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n., supra, 627 F.2d 392, 399- 400.) While public embarrassment may be a factor to be considered, the “personnel” exception may not be invoked “to protect the concerns of a contractor who would be embarrassed by disclosure of his responsibility for shoddy work.” (Sims v. Central Intelligence Agency, supra, 642 F.2d 562, 575.)

These federal cases construing the Freedom of Information Act may be used “to illuminate the interpretation of its California counterpart” (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 446, 447; see Northern Cal. Police Practices Project v. Craig (1979) 90 Cal.App.3d 116, 120) and fully support our conclusion that section 6254, subdivision (c), is inapplicable here.

In 64 Ops.Cal.Atty.Gen. 575, 582 (1981), we examined the application of the “personnel” exception of section 6254 to the release of payroll records of nongovernmental employees. We distinguished that situation from the situation where the persons were public officers or employees and thus ” ‘the subject of a legitimate interest to [their] fellow citizens.’ ”

In 62 Ops.Cal.Atty.Gen. 436, 439 (1979), we concluded that the State Treasurer’s records specifying the owners of state registered bonds were subject to disclosure since they “reflect the actual conduct of the Treasurer’s public business, while personnel and medical files concern more private revelations collected for other than what is normally viewed as ‘recorded official action.’ ”

In 60 Ops.Cal.Atty.Gen. 110, 113 (1977), we concluded that the names of and amounts received by county retirees contained in county payroll records were subject to disclosure under the Act.

In 25 Ops.Cal.Atty.Gen. 90, 91 (1955), we concluded that the State Controller’s records of the name of a former state employee receiving a retirement allowance and the amount thereof were open to public inspection:

“Granting that the statute intends to safeguard certain personal information, nevertheless it is a fact that the name of every public officer and employee, as well as the amount of his salary, is a matter of public record. Thus the state-paid income of a retired person is no less open to the public gaze than the income of any active state officer or employee.”

All of these prior opinions support our conclusion that the provisions of the section 6254 “personnel” exception do not govern the release of the records at issue herein.

If a record is found to be nonexempt under section 6254, it may still be withheld under section 6255. A substantial burden, however, is placed upon the public agency to demonstrate a need for nondisclosure under the latter statute. (See Braun v. City of Taft, supra, 154 Cal.App.3d 332, 345; San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 780.)

It would be difficult to conceive of a greater public need for disclosure than where the record specifies how public funds are spent. “[T]he public interest in finding out how decisions to spend public funds are formulated and in insuring governmental processes remain open and subject to public scrutiny” (Register Div. of Freedom Newspapers, Inc. v. County of Orange, supra, 158 Cal.App.3d 893, 910) cannot be overstated. As the Court of Appeal observed in San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955:

“… Salaries and other terms of compensation constitute municipal budgetary matters of substantial public interest warranting open discussion and eventual electoral public ratification. Public visibility breeds public awareness which in turn fosters public activism politically and subtly encourages the government entity to permit public participation in the discussion process. It is difficult to imagine a more critical tie for public scrutiny of its governmental decision-making process than when the latter is determining how it shall spend public funds. With ever-increasing demands on public funds which have dwindled so drastically since the passage of Proposition 13, secrecy cannot be condoned in budgetary determinations, including the establishment of salaries.”

We do not believe that public disclosure of the total cost of the bonus incentive program and the amount of the average bonus is sufficient here to meet the public need. Additional information is necessary to determine whether the program is being properly administered.

Moreover, the “public embarrassment” incurred by those receiving lesser bonus amounts must be weighed against the benefits of public recognition given to those performing exceptionally well. Public disclosure may indeed provide an incentive for those receiving lesser amounts to be more productive.

On the other hand, it may be argued that the city has a need to withhold the records in question because of a possible adverse effect upon its confidential evaluation process. Would reviewers be less objective if the amount of each bonus were publicly disclosed? We believe not.

First, such a suggestion questions the integrity of the reviewing executive managers. “It is presumed that official duty has been regularly performed.” (Evid.Code, § 664.) We do not believe that the reviewers would be irresponsible in the performance of their official duties merely because the public may become aware of the ultimate results.

Second, it is the city manager alone who determines the amount of each bonus. Reviews that are not objective may thus be disregarded by the city manager.

Third, each executive manager will, of course, know the amount of his or her own bonus. If the reviewers can be objective when their peers know their own results, surely they may remain objective when the public also becomes aware of the results.

In sum, any interest in not disclosing the amount of and reasons for a performance award pales in comparison with the substantial public need for disclosure. Hence, we conclude that the requisite showing could not be made under section 6255 for the withholding of the records at issue.

Finally, we note that besides the statutory provisions of sections 6254 and 6255, the Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are … pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. 1, § 1.) We have previously observed “that mere compliance with a statute cannot justify an improper invasion of the constitutional right of privacy. (Doyle v. State Bar (1982) 32 Cal.3d 12, 19.)” (67 Ops.Cal.Atty.Gen. 414, 419 (1984).)

Nevertheless, “the constitutional right to privacy must be balanced against the public’s interest in its business.” (Braun v. City of Taft, supra, 154 Cal.App.3d 332, 347.) “Although one does not lose his right to privacy upon accepting public employment, the very fact that he is engaged in the public’s business strips him of some anonymity.” (Ibid.) If the balancing test under subdivision (c) of section 6254 has been met in favor of disclosure, “no more is required under article 1, section 1 of the California Constitution.” (Ibid.)

Since we have concluded that the disclosure of the subject records would not constitute an unwarranted invasion of privacy under section 6254, subdivision (c), the test in considering the constitutional right of privacy has also been met in favor of disclosure.

In answer to the question presented, therefore, we conclude that records of the amounts and reasons for performance awards granted to executive managers of a city are subject to disclosure under the Public Records Act.

JOHN K. VAN DE KAMP

Attorney General

RODNEY O. LILYQUIST

Deputy Attorney General

FN1. We assume for purposes of our discussion that the reasons are received.

FN2. All section references hereafter are to the Government Code unless otherwise specified.

FN3. Section 6254.7 refers to air pollution data, housing code violations and “trade secrets.”

FN4. These aspects of the program render inapplicable the constitutional prohibitions against the making of a gift of public money (Cal. Const., art. XVI, § 6) and the granting of extra compensation after services are rendered (Cal. Const., art. IV, § 17; art. XI, § 10). (See Jarvis v. Cory (1980) 28 Cal.3d 562, 569-578; Goleta Educators Association v. Dall-Armi (1977) 68 Cal.App.3d 830, 834; Johnston v. Rapp (1951) 103 Cal.App.2d 202, 206-207; 23 Ops.Cal.Atty.Gen. 271, 273-275 (1954).)

69 Ops. Cal. Atty. Gen. 232 City Council Can Meet Privately to Discuss Cease and Desist Order (1986)

admin — Sat, 13 Jun 2009 04:58:50 +0000

Office of the Attorney General

State of California

69 Ops. Cal. Atty. Gen. 232

Opinion No. 86-203

October 22, 1986

THE HONORABLE LLOYD G. CONNELLY

MEMBER OF THE CALIFORNIA ASSEMBLY

THE HONORABLE LLOYD G. CONNELLY, MEMBER OF THE CALIFORNIA ASSEMBLY, has requested an opinion on the following questions:

1. Does section 54956.9 of the Government Code, a provision in the Ralph M. Brown Act, authorize closed sessions of a city council for the purpose of discussing a proposed or tentative cease and desist order issued by a regional water quality control board?

2. Where one city agency has discussed in open session a proposed or tentative cease and desist order issued by a regional water quality control board, may the city council thereafter invoke section 54956.9 of the Government Code to discuss the same cease and desist order with its city attorney in closed session?

CONCLUSIONS

1. When a proposed or tentative cease and desist order has been served upon a city by a regional water quality control board, an “adjudicatory proceeding” has been commenced within the meaning of section 54956.9 of the Government Code. Accordingly, that section would authorize closed sessions of the city council with its city attorney to receive his or her advice and to discuss the legal options and strategies available to the city with respect to such “adjudicatory proceeding.”

2. Where one city agency has discussed in open session a proposed or tentative cease and desist order issued by a regional quality control board, the city council may nevertheless invoke the adjudicatory proceeding exception to the open meeting law to hold closed session meetings with its city attorney to receive his or her advice and to discuss the legal options and strategies open to the city with respect to such adjudicatory proceedings.

ANALYSIS

The Ralph M. Brown Act (Gov.Code, § 54950 et seq.) requires “legislative bodies” of “local agencies,” as defined therein, to conduct their meetings in public session unless specifically excepted by the act or impliedly excepted by some other provision of law. (See generally Gov.Code, secs. 54951, 54951.1, 54951.7, 54952, 54952.2, 54952.3, 54952.5, 54953, 54956.7, 54957, 54957.6; Sacramento Newspaper Guild v. Sacramento County Bd. of Supr. (1968) 263 Cal.App.2d 41.)

In this opinion we deal with two city agencies, the city council and the city public works board, both of which are “legislative bodies” of “local agencies” within the provisions of the Ralph M. Brown Act. We also deal with section 54956.9 of the Government Code, which was added to the Ralph M. Brown Act at the 1984 session of the State Legislature (Stats. 1984, ch. 1126), and which specifically authorizes “legislative bodies” to confer with their attorney in closed session to discuss “pending litigation” as defined in that section. Section 54956.9 provides:

“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.

“For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:

(a) An adjudicatory proceeding before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator, to which the local agency is a party, has been initiated formally.

(b)(1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency; or

(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision.

(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

“Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state publicly to which subdivision it is pursuant. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

“The legal counsel of the legislative body of the local agency shall prepare and submit to the body a memorandum stating the specific reasons and legal authority for the closed session. If the closed session is pursuant to subdivision (a), the memorandum shall include the title of the litigation. If the closed session is pursuant to subdivision (b) or (c), the memorandum shall include the existing facts and circumstances on which it is based. The legal counsel shall submit the memorandum to the body prior to the closed session if feasible, and in any case no later than one week after the closed session. The memorandum shall be exempt from disclosure pursuant to Section 6254.1.

“For the purposes of this section, litigation includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.” [FN1]

We are presented with two questions in the context of this new provision of the Ralph M. Brown Act. The first is whether a city council is authorized by this section to discuss in closed session a proposed or tentative regional water quality control board cease and desist order against the city. The second is whether the city council can be precluded from invoking this section where a subordinate city agency, in our case the city public works board, has already discussed this particular tentative cease and desist order in an open session.

We conclude that a city council may discuss such a proposed or tentative cease and desist order with its city attorney pursuant to section 54956.9 within the ground rules set forth in that section. We further conclude that the prior public discussion of the proposed or tentative cease and desist order by the city’s public works board would not prevent the city council from invoking section 54956.9.

1. The Status Of A Tentative Cease And Desist Order

The factual background for this request for our opinion is briefly as follows: A regional water quality control board sent to the city public works director a notice that it would hold an evidentiary hearing at a specified time and place and on a specified date to consider an enforcement order against the city with respect to raw sewage which was being discharged by the city. Alternative enforcement actions were specified, including a possible cease and desist order to be issued against the city. The notice also stated that the board’s staff, the city and other interested parties would be given the opportunity to present evidence at the scheduled hearing and that additional materials concerning the hearing would be sent to the city beforehand.

Within a week the regional water quality control board then sent to the city public works director a proposed or tentative cease and desist order to require the city to cease and desist violating discharge requirements previously ordered by the regional board (hereinafter “tentative cease and desist order”). The tentative cease and desist order set forth seven specific tasks to be completed by the city and a time schedule for the completion of each of these tasks. For example, Task I required increasing sewage treated at a particular water reclamation plant; Task VI required the engineering and design work for, and the construction and operation of, a new outfall relief sewer. The tentative cease and desist order concluded with the following warning:

“If the City … fails to comply with any provisions of this Order, the Executive Officer is authorized to request the Attorney General to take the appropriate action against the discharger, including injunction and civil monetary remedies, pursuant to appropriate California Water Code sections, including but not limited to Sections 13331, 13350, 13385, and 13386.”

The accompanying cover letter from the regional board’s executive director to the city’s public works director set forth the previously noticed date, time and place where “the Board would hold a hearing on the proposed enforcement action.”

The city engineer then prepared a report on the tentative cease and desist order for the city’s public works board. That report recommended that the city’s designated representative should agree to only three of the seven tasks specified in the tentative cease and desist order at the hearing before the regional board. The city’s public works board then held a public meeting at which it discussed in open session the tentative cease and desist order and the engineer’s report, and adopted such report with additional comment.

Later the same day, the city council met and discussed the tentative cease and desist order with the city attorney in closed session. The authority specified for the closed session was subdivision (a) of section 54956.9 of the Government Code, supra. The propriety of such a closed meeting is the basis for question one of this request.

An examination of section 54956.9 of the Government Code discloses that there are a number of conditions precedent to the holding of a closed session pursuant to that section. Initially, there must be “pending litigation” as defined in the section. Secondly, the local agency’s legal adviser must advise the legislative body that an open session to confer with, or receive advice from him or her with respect to the “pending litigation” would prejudice the position of the local agency in the litigation. In so doing the local agency’s legal adviser must “prepare and submit to the body a memorandum stating the specific reasons and legal authority for the closed session.” The memorandum must also contain other appropriate information to justify the session as falling within subdivision (a), (b), or (c) of the section. For example, with respect to subdivision (a), “the memorandum shall include the title of the litigation”, or “otherwise specifically identify the litigation.”

Accordingly, it is seen that the legal adviser to a local agency makes the initial determination as to whether a closed session may be legally justified under section 54956.9 of the Government Code. Thereafter, under the wording of the section, the legislative body is free to make its own determination as to whether to meet in closed session. Such is not mandated. The section merely specifies that “[n]othing in this chapter [the Ralph M. Brown Act] 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.”

Since we have been advised that the city herein was operating pursuant to subdivision (a), we assume that the memorandum required from the City Attorney had been properly prepared and submitted to the city council. The issue then resolves itself into whether an “adjudicatory proceeding” had been formally commenced against the city before a court or an administrative agency exercising its adjudicatory authority within the meaning of subdivision (a) of section 54956.9 of the Government Code.

An adjudicatory proceeding is one “in which ‘the government’s action affecting an individual [is] determined by facts peculiar to the individual case.’ ” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 613.) As such, it is one which is “subject to procedural due process principles”, that is due notice and the opportunity to be heard. (Id., at p. 612.) Likewise, it is one where findings will be made and judicial review will be available through administrative mandamus (Id., at p. 614.) In short, “adjudicatory” matters are essentially to be distinguished from “quasi-legislative” matters. The latter “involve the adoption of a ‘broad generally applicable rule of conduct on the basis of general public policy.’ ” (Id., at p. 613; see also, e.g., Griffis v. County of Mono (1985) 163 Cal.App.3d 414, 427.) [FN2]

We conclude from an examination of the relevant provisions of the Water Code that by at least the time of service of a tentative cease and desist order by the regional water quality control board on the city, an adjudicatory proceeding had been commenced. By that time the matters at issue before the board were drawn and the city advised of them so that it could prepare any defense it wished to present to the board concerning the proposed enforcement order.

Section 13300 et seq. of the Water Code sets forth the provisions for the “Administrative Enforcement and Remedies By Regional Board” with respect to actual or threatened violations of requirements prescribed by regional boards or the state water quality control board. One of such enforcement remedies is the issuance of cease and desist orders. Section 13301 of the Water Code provides:

“When a regional board finds that a discharge of waste is taking place or threatening to take place in violation of requirements or discharge prohibitions prescribed by the regional board or the state board, the board may issue an order to cease and desist and direct that those persons not complying with the requirements or discharge prohibitions (a) comply forthwith, (b) comply in accordance with a time schedule set by the board, or (c) in the event of a threatened violation, take appropriate remedial or preventive action. In the event of an existing or threatened violation of waste discharge requirements in the operation of a community sewer system, cease and desist orders may restrict or prohibit the volume, type, or concentration of waste that might be added to such system by dischargers who did not discharge into the system prior to the issuance of the cease and desist order. Cease and desist orders may be issued directly by a board, after notice and hear- ing, or in accordance with the procedure set forth in Section 13302.” (Emphasis added.)

Section 13302 provides an alternative hearing procedure whereby a panel of the regional board, after due notice and hearing, will hold an evidentiary hearing as to whether a cease and desist order shall issue. The panel then will report its proposed decision to the board which “after making such independent review of the record and taking such additional evidence as may be necessary, may adopt, with or without revision, the proposed decision and order of the panel.” Section 13303 of the Water Code then provides that “[c]ease and desist orders shall become effective and final upon issuance thereof.”

Section 13320 of the Water Code thereafter provides an appeal procedure to the state water quality control board from actions of regional boards, including enforcement proceedings taken by the issuance of cease and desist orders, by any aggrieved party. It provides:

“(a) …………………

“(b) The evidence before the state board shall consist of the record before the regional board, and any other relevant evidence which, in the judgment of the state board, should be considered to effectuate and implement the policies of this division.

“(c) The state board may find the regional board action or inaction to be appropriate and proper. Upon finding that the action of the regional board, or the failure of the regional board to act, was inappropriate or improper, the state board may direct that the appropriate action be taken by the regional board, refer the matter to any other state agency having jurisdiction, take the appropriate action itself, or do any combination of the foregoing. In taking any such action, the state board is vested with all the powers of the regional boards under this division. … ”

And finally with respect to the Water Code provisions in this sequence or process, section 13330 provides that “any aggrieved party may file with the superior court a petition for a writ of mandate for review thereof.” “The evidence before the court shall consist of the record before the state board, including the regional board’s record, and any other relevant evidence which, in the judgment of the court, should be considered to effectuate and implement the policies of … [the Water Code].”

It is patent that the Water Code provisions outlined above set forth a classic example of administrative agencies, the regional board and the state board, acting adjudicatively or quasi-judicially with the usual recourse to the courts through administrative mandamus. (Cf.Code Civ. Proc. § 1094.5.) It is seen that this process included the mailing to the city of a tentative or proposed cease and desist order, in essence the accusation or complaint, with a notice of hearing thereon. The city had the choice of acquiescing in the proposed cease and desist order, or contesting it through the foregoing hearing process, where its individual rights could be adjudicated. Accordingly, by the time the regional board mailed the tentative cease and desist order to the city, an “adjudicatory proceeding” had been clearly commenced within the meaning of section 54956.6.

2. Application Of The Tentative Cease And Desist Order To The Provisions Of Section 54956.9 Of The Government Code

We have established that the sine qua non for the operation of subdivision (a) of section 54956.9 of the Government Code herein is (1) the commencement of an “adjudicatory proceeding” and (2) the general requirement that the closed session “is to confer with, or receive advice from, its legal counsel regarding pending litigation [in our case, the cease and desist order proceeding] when discussion in open session concerning those matters would prejudice the position of the” city in the pending litigation, based upon the advice of the city attorney.

This latter general requirement is essentially one requiring the exercise of judgment on the part of both the city council and the city attorney. We believe that the requirement of section 54956.9 of the Government Code that the attorney for the legislative body shall state “the specific reasons” for the closed session requires an articulation by him or her as to why the facts and circumstances are such that an open session would prejudice the local agency in the litigation. In the context of the tentative cease and desist order discussed herein, we can certainly envision the need to have discussed the strength and weaknesses of the city’s position with respect to the four out of seven tasks the public works board recommended should be contested at the hearing before the regional board. This is particularly true since not only could the city have been faced with a cease and desist order as proposed, but the city could also have been subject to civil penalties for failure to comply with the cease and desist order (either administratively or court imposed, see Water Code, § 13350), or could have been the subject of an injunction action brought by this office at the request of the local board (see Water Code, § 13331). [FN3]

Whether the city attorney and the city council made the proper “judgment call” under section 54956.9 is beyond the scope of our opinion function, being essentially a question of fact. In this respect, however, we note the competing policy considerations set forth by the court in the Sacramento Newspaper Guild case, supra. These would appear to be as germane to the codified litigation exception as they were when the court implied the exception to the open meeting requirements of the Ralph M. Brown Act in that case.

Thus, with regard to a public agency’s need to confer with its attorney in private, the court stated:

“. . . Government should have no advantage in legal strife; neither should it be a second-class citizen. We reiterate what we stated in the supersedeas aspect of this suit, Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, supra, 255 Cal.App.2d at page 54:

‘Public agencies face the same hard realities as other civil litigants. An attorney who cannot confer with his client outside his opponent’s presence may be under insurmountable handicaps. A panoply of constitutional, statutory, administrative and fiscal arrangements covering state and local government expresses a policy that litigating public agencies strive with their legal adversaries on fairly even terms. We need not pause for citations to demonstrate the obvious. There is a public entitlement to the effective aid of legal counsel in civil litigation. Effective aid is impossible if opportunity for confidential legal advice is banned.’

“Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistence on open lawyerclient conferences. In settlement advice, the attorney’s professional task is to provide his client a frank appraisal of strength and weakness, gains and risks, hopes and fears. If the public’s ‘right to know’ compelled admission of an audience, the ringside seats would be occupied by the government’s adversary, delighted to capitalize on every revelation of weakness. A lawyer worth his salt would feel a sense of treachery in disclosing that kind of appraisal. (8 Wigmore op. cit. 2291, p. 553.). …” (Fn. omitted.) (263 Cal.App.2d at pp. 55-56.)

On the other side of the coin the court, however, cautioned:

“The two enactments [the Ralph M. Brown Act and the attorney-client privilege] are capable of concurrent operation if the lawyer-client privilege is not overblown beyond its true dimensions. As a barrier to testimonial disclosure, the privilege tends to suppress relevant facts, hence is strictly construed. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 396.) As a barrier against public access to public affairs, it has precisely the same suppressing effect, hence here too must be strictly construed. As noted earlier, the assurance of private legal consultation is restricted to communications ‘in confidence.’ Private clients, relatively free of regulation, may set relatively wide limits on confidentiality. Public board members, sworn to uphold the law, may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law. Neither the attorney’s presence nor the happenstance of some kind of lawsuit may serve as the pretext for secret consultations whose revelation will not injure the public interest. To attempt a generalization embracing the occasions for genuine confidentiality would be rash. The Evidence Code lawyer-client provisions may operate concurrently with the Brown Act, neither superseding the other by implication.” (263 Cal.App.2d at p. 58.)

Accordingly, we conclude on question number one that the mailing to the city of a tentative cease and desist order with the hearing date thereon by a regional water quality control board constitutes the commencement of an “adjudicatory proceeding” before that agency within the meaning of section 54956.9. As such it is pending litigation which may be discussed by the city council and its city attorney in closed session under section 54956.9 in the Ralph M. Brown Act. However, those discussions must be confined to those authorized by section 54956.9, namely to receive advice from the city attorney and to confer with him or her regarding the pending litigation when discussion of those matters in open session would prejudice the position of the city in the litigation. This would include such matters as discussing the legal options open to the city and the legal strategies to be employed by the city in the litigation, but would not include discussion on any matters which would not prejudice the city in the litigation.

3. The Question Of Possible Waiver By A Subsidiary City Agency Of Section 54956.9

The second question presented for resolution herein is whether when one city agency has discussed a tentative cease and desist order in open session, the city council may thereafter invoke section 54956.9 of the Government Code to discuss the same cease and desist order with its city attorney. In the context of the facts under consideration herein, the question is essentially whether the city public works board could have waived or nullified the city council’s rights under section 54956.9 of the Government Code. We conclude that it could not have done so.

Initially, we note that the usual rule is that once confidential information is disclosed to the public or to unauthorized third parties, confidentiality as to such information can no longer be claimed. It has been “waived.” (See Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645; and, e.g., Evid.Code, sec. 912, waiver of attorney-client privilege.)

We do not, however, have such a situation herein with respect to the city public works board and the city council. Section 54956.9 of the Government Code, in permitting closed sessions, seeks to protect confidential communications between attorney and client, not the mere discussion of a matter such as the tentative cease and desist order. Accordingly, when the public works board met and discussed the tentative cease and desist order, it in no way invoked section 54956.9, nor discussed confidential information in open session, nor waived confidential information. It was not until the city council met with its attorney to receive its attorney’s advice and consultation relative to the tentative cease and desist order that section 54956.9 was even invoked.

Stated otherwise, although both bodies may have coincidentally discussed the tentative cease and desist order, the right to have met in closed session and resultant confidentiality arising from section 54956.9 related only to the attorney-client communication with respect thereto. In short, insofar as section 54956.9 of the Government Code is concerned, the two bodies were considering different information. Accordingly, no question of waiver could have arisen.

Furthermore, under section 54956.9 of the Government Code, the city council had the absolute right to confer with its attorney with respect to “pending litigation” in closed session under the ground rules set forth in that section. We see no way such right could have been nullified by what others might have done, whether they were a subordinate or advisory board, the city attorney or individual council members.

We therefore conclude on question two that where one city agency has discussed in open session a proposed or tentative cease and desist order issued by a regional quality control board, the city council may nevertheless invoke the adjudicatory proceeding exception to the open meeting law to hold closed session meetings with its city attorney to receive his or her advice and to discuss the legal options and strategies open to the city with respect to such adjudicatory proceedings.

JOHN K. VAN DE KAMP

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

FN1. Prior to the enactment of section 54956.9 of the Government Code, both the courts and this office implied an exception to the open meeting requirements of the Ralph M. Brown Act to permit local bodies to consult with their attorneys within the confines of the attorney-client privilege. (See Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 825; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41; 67 Ops.Cal.Atty.Gen. 111 (1984); 36 Ops. Cal.Atty.Gen. 175 (1960); Cal.Atty.Gen.Unpubl.Opns. I.L. 75-282; I.L. 71-5; compare 62 Ops.Cal.Atty.Gen. 150 (1979).)

FN2. See also, Ballentine’s Law Dictionary (3d ed. 1969), page 32:

“adjudicatory. A term employed in speaking of the quasi-judicial functions of an administrative agency.”

and Black’s Law Dictionary (5th Ed. 1979), pages 39-40:

“Adjudicatory hearing. A proceeding before an administrative agency in which the rights and duties of particular persons are adjudicated after notice and opportunity to be heard.”

FN3. These additional remedies available to the local board could also possibly have justified a closed session under subdivision (b) of section 54956.9 since failure to acquiesce in the regional board’s decision would appear to have constituted “a significant exposure to litigation against the” city within the meaning of subdivision (b)(1).