California’s Attorney General’s Office recently authored a legal opinion pertaining to the Brown Act. The Brown Act is an open meeting law that generally requires the legislative bodies of local agencies to deliberate and take action in meetings that are open to the public. There are, however, exceptions to this public access requirement.
An agency can meet in a “closed session”, without the public attending or observing, in certain limited circumstances. One of those circumstances is if the agency wishes to meet with its attorney about pending litigation. Another exception is if the agency will be handling certain sensitive personnel matters.
Generally, only persons who have an “official or essential” role may attend a closed session. A person has an “official” role if they are authorized by a statute to attend the closed session. This means that members of the legislative body conducting the closed session can attend, as well as other individuals who are specifically identified in an exception that allows for a closed session meeting. Those without an “official” designation may only attend a closed session meeting if their presence is “essential” to the agency’s ability to conduct closed session business.
This “essential” designation has been used sparingly in the past. For example, when evaluating an employee’s disability retirement request, the disabled employee or their representative was deemed “essential” to the determination of the merits of the disability retirement application. However, an alternate board member who would soon be taking the place of an existing board member was not allowed to participate in a closed session even though it would have fostered a seamless transition. Finally, a mayor was not allowed to attend closed-session to instruct the city’s negotiator on real estate matters even though his involvement would have been beneficial.
The public agency that requested this opinion indicated that its legislative staff would attend a closed session meeting to: (1) administer the meeting, (2) take notes, and (3) provide councilmembers with relevant information because staff “may have unique knowledge or information about a particular matter that could assist Councilmembers to better serve their constituency.”
The Attorney General stated that because no statute provides for these staff members to fill these roles at closed sessions, they are not designated as “official”. The Attorney General also opined that the staff members’ presence was not “essential.”
The Attorney General stated that most city councils in California do not allow legislative staffers to attend closed sessions, which indicates that council members do not require the presence of individual staff members. The Attorney General also stated that because the legislative bodies themselves administer closed sessions, they do not need legislative staff to do so. The Brown Act authorizes the designation of a clerk to take notes of closed sessions, which means that legislative staff is not needed to perform that function. Moreover, the Attorney General said this last reason was not adequate, and more closely approximates the examples of the mayor and alternate councilmember who were denied attendance at a closed session, as discussed above.
Because individual support staff is not allowed to attend closed sessions, they are also not allowed to receive information from the closed session. To allow otherwise, the Attorney General opined, would violate the general intent for the closed session information to be kept confidential.
The Attorney General’s opinion reminded agencies that two legislative bodies can meet in the same closed session if a statutory exception allowing a closed session applies to both bodies. This would be a fact-based inquiry but generally, so long as an aspiring closed session participant is either “official” or “essential”, those participants may attend the closed session meeting.
Opinion No. 21-1102 of Rob Bonta, Attorney General.
Note:
This Opinion from the Attorney General is a good reminder for public agencies that participate in a closed session meeting under the Brown Act is very limited and restricted. Only individuals who are “official” or “essential” may attend closed sessions, and it is very difficult to satisfy the “essential” criteria.