referring to “The San Diego Housing Commission (SDHC
How later courts described this case
- referring to “The San Diego Housing Commission (SDHC
Written by the judges who cited it.
The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
: No. 21-1102
OPINION :
: May 26, 2022
of :
:
ROB BONTA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
The HONORABLE CHRISTOPHER M. WARD, ASSEMBLYMEMBER, has
requested an opinion on questions relating to closed sessions held under the Ralph M.
Brown Act.
QUESTIONS PRESENTED AND CONCLUSIONS
1. Under the Ralph M. Brown Act, may legislative support staff of individual city
councilmembers attend a closed session to assist and advise their individual members in
the performance of the members’ duties?
No, as a general matter, legislative support staff of individual city councilmembers
may not attend closed sessions. If a person on such staff has an official or essential role
to play in a particular closed session, however, then that person may attend for that
purpose.
2. If legislative support staff of individual city councilmembers are not permitted
to attend a closed session as described in Question 1, may the members share information
obtained in closed session with their individual support staff to assist the members in
performing their legislative duties?
No. City councilmembers may not share with their individual support staff, who
were not permitted to attend a closed session, information obtained in that closed session
unless the city council has authorized the disclosure of such information.
1
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3. Would it violate the Ralph M. Brown Act for a city council acting as the city’s
housing authority to meet jointly in closed session with a board of housing
commissioners, which the housing authority oversees, provided that statutory
authorization exists for both entities to go into closed session?
No. The Act does not prohibit a joint closed session of two local agencies, if each
agency is authorized to meet in closed session based on the same exception and same set
of facts. Such agencies may together meet in closed session under that exception.
BACKGROUND
The Ralph M. Brown Act is an open meeting law that applies to local government
agencies in California. 1 With certain exceptions, the Act requires the “legislative body”
of a local agency to deliberate and take action in meetings that are open to the public. 2
As the Act explains, public agencies exist to help conduct the people’s business, and the
people “insist on remaining informed so that they may retain control over the instruments
they have created.” 3
At the same time, however, the Act recognizes exceptional situations where the
need for confidentiality outweighs the interest in openness. 4 An agency may therefore at
times meet in closed session, but only if the Act expressly authorizes it. 5 The Act
expressly authorizes a closed session in more than a dozen narrow circumstances.
For example, an agency may meet in closed session to confer with its attorney
about “pending litigation” when open discussion would prejudice the agency, or to direct
its negotiator of a property transaction on particular matters such as price. 6 An agency
1
Gov. Code, §§ 54950 et seq.
2
Id., §§ 54950, 54951 (defining “local agency”), 54952 (defining “legislative body”),
54952.2, subd. (a) (defining “meeting”), 54953, subd. (a).
3
Id., § 54950.
4
See 75 Ops.Cal.Atty.Gen. 14, 20 (1992) (explaining that “despite the fact that the
general thrust of the Act is for public agencies to hold their meetings, deliberate, and take
action in public, the Act recognizes the need at times to both deliberate and act in private
when necessary due to important policy considerations”).
5
Ricasa v. Office of Admin. Hearings (2018) 31 Cal.App.5th 262, 273 (“Closed sessions
may only be conducted if authorized by statute,” citing Gov. Code, § 54962).
6
Gov. Code, §§ 54956.8 (real-estate exception), 54956.9 (pending-litigation exception).
2
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may also meet in closed session to handle certain employee personnel matters. 7 Other
exceptions relate to labor negotiations, a license application by those with criminal
records, a final draft audit report from the Bureau of State Audits, pension fund
investments, a threat to the security of public facilities or essential public services,
ongoing criminal investigations by a multijurisdictional law enforcement agency, and an
application for early withdrawal of funds based on financial hardship. 8
Before meeting in closed session, an agency must list and describe any closed-
session items on the public meeting agenda and announce in open session the closed-
session items to be discussed. 9 In closed session, the agency may only discuss the
specific items covered in its announcement. 10 After the closed session, the agency must
reconvene in open session and report certain actions taken in the closed session. 11
7
Gov. Code, § 54957, subd. (b) (authorizing closed session to hear specific complaints
against an employee, and consider evaluation, appointment, discipline, or dismissal of
employee).
8
See Gov. Code, §§ 54957.6 (labor negotiations), 54956.7 (license applications),
54956.75 (audit reports), 54956.81 (pension fund investments), 54957, subd. (a) (threats
to public facilities or essential public services), 54957.8 (multijurisdictional criminal
investigations), 54957.10 (early withdrawal of funds). Certain other exceptions only
apply to specified agencies. For instance, a county board of supervisors may meet in
closed session when acting as a specified health plan’s governing board to discuss
contracts, trade secrets, or other enumerated matters. (Id., § 54956.87.) A joint powers
agency formed for purposes of insurance pooling, and those joint powers agency’s local
agency members, may meet in closed session to discuss certain claims for payment. (Id.,
§ 54956.95.) And public banks, hospitals, school districts, and community college
districts may hold closed session meetings to consider enumerated topics. (Id.,
§§ 54956.97, 54962.)
9
Gov. Code, §§ 54954.2, subd. (a)(1) (agenda must include closed-session items),
54954.5 (specifying permissible closed-item agenda descriptions), 54957.7, subd. (a)
(disclosure in open session of items to be discussed).
10
Gov. Code, § 54957.7, subd. (a).
11
Gov. Code, §§ 54957.1, 54957.7, subd. (b).
3
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ANALYSIS
1. Under the Ralph M. Brown Act, may legislative support staff of individual city
councilmembers attend a closed session to assist and advise their individual
members in the performance of the members’ duties?
Neither the Legislature nor the courts appear to have examined this specific
question. Neither have we, but our prior opinions recognize that only persons who have
an “official or essential” role may attend a closed session. 12 The Legislature is presumed
to be aware of our opinions, and thus, this test. 13 Indeed, the legislative history of the Act
references the test. 14
In general, a person has an “official” role if they are authorized by statute to attend
the closed session. This includes members of the legislative body conducting the closed
session, as well as other individuals specifically identified in an applicable closed-session
exception. 15 Anyone else may attend a closed session only if their presence is “essential”
to the agency’s ability to conduct its closed-session business.
Past opinions set forth the rationale for the “official or essential” test, explaining
that including individuals without an official or essential role would convert the closed
session into a semi-closed session, which the Act does not authorize. 16 For example, in
an early opinion construing the Act, we concluded that an agency could not invite
12
88 Ops.Cal.Atty.Gen. 16, 23 (2005) (stating that “[t]he 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,” quoting 86 Ops.Cal.Atty.Gen. 210, 215 (2003), and citing prior
opinions).
13
See City of Woodlake v. Tulare County Grand Jury (2011) 197 Cal.App.4th 1293,
1302, fn. 4 (providing that the Legislature is presumed to be aware of Attorney General
opinions, and if they misconstrued legislative intent, “some corrective measure would
have been adopted”); People v. Union Oil Co. (1968) 268 Cal.App.2d 566, 571 (stating
that the lapse of time after an opinion “supports the inference that if it were contrary to
legislative intent, some corrective measure would have been adopted”).
14
See, e.g., Sen. Governance & Finance Com., Rep. on Assem. Bill 246 (2013–2014
Reg. Sess.), hearing date May 15, 2013, as amended Feb. 6, 2013, pp. 1–2 (explaining
that Brown Act only allows essential staff to attend closed session).
15
See, e.g., Gov. Code, § 54956.9 (pending-litigation exception identifying agency
counsel).
16
46 Ops.Cal.Atty.Gen. 34, 35 (1965).
4
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members of the press to a closed session on personnel matters. 17 We explained that
“neither members of the press nor any other individuals who are not witnesses in the
matter being investigated” could attend, because the “reasons for the legislative
authorization” for the closed session—which we described as “[s]ecrecy, confidentiality,
and absence of publicity”—would be “rendered nugatory.” 18
More recently, we concluded that a local agency could allow an applicant for
disability retirement, as well as the applicant’s representative, to attend a closed session
convened under the personnel exception. 19 We explained that the county retirement
board could allow the applicant and representative to participate as an “interested party”
or “advocate” if the board believed that they would have “an official or essential role to
play in the closed session.” 20 We recognized that the board “may consider that the
attendance of the applicant and his or her representative at the closed session would be
essential for a determination on the merits of the disability retirement application,” and
that because no “members of the public” would be present, the meeting would not
become an impermissible “semi-closed” session. 21
We have applied this “official or essential” test to the question of whether public
officials who are not members of a legislative body may attend closed sessions. In an
opinion raising a similar question to the one presented here, we determined that an
alternate member of a legislative body could not attend a closed session, unless the
alternate was serving as a member in place of an absent member. 22 Even though we
recognized that the alternate’s presence at all sessions would be beneficial by enhancing
the discussion and fostering the efficient, seamless replacement of a member who was
absent, the alternate’s presence in the closed session was unauthorized. 23 We explained:
“Unless sitting in place of an absent or disqualified regular member, an alternate member
may not attend a closed session without converting the session into an unauthorized
‘semi-closed meeting.’” 24
17
Ibid.
18
Id. at pp. 34–35.
19
88 Ops.Cal.Atty.Gen., supra, at pp. 20, 23.
20
Id. at p. 23.
21
Id. at p. 24.
22
82 Ops.Cal.Atty.Gen. 29, at pp. 33–34 (1999).
23
Id. at pp. 32–34.
24
Id. at pp. 33–34.
5
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And in a particularly relevant opinion concerning a public official, we determined
that a mayor could not attend a redevelopment agency’s closed session convened under
the real-estate exception, which allows an agency to meet in closed session to instruct its
negotiator on specified matters. 25 Because the mayor was not the agency’s negotiator,
the mayor had “no official role to play at the redevelopment agency’s closed session
under the express provisions” of the exception. 26 We disagreed that the mayor, by
providing advice on the property transaction at the agency’s request, had an essential role
as “support staff” of the redevelopment agency. 27 We recognized that the mayor’s
involvement in the negotiating strategy might be beneficial, but determined that it was
not essential. 28
The requestor here lists three ways in which the support staff of an individual city
councilmember could have a role at a closed-session meeting: (1) to administer the
meeting, (2) to take notes, and (3) to provide their councilmember with relevant
information because such staff “may have unique knowledge or information about a
particular matter that could assist Councilmembers to better serve their constituency.” 29
No statute provides for individual support staff of members to play these roles at closed
session, so these are not “official” roles for such staff. Nor do we see how any of these
constitute an “essential” role, as we explain below.
As an initial matter, we are informed that most city councils in California do not
have individual legislative staffers attend closed sessions. 30 This state of affairs suggests
that councilmembers are generally fully capable of performing their official legislative
duties without the presence of individual staff in closed meetings, and that such staff are
generally not needed in closed session to perform any of the three roles listed above.
As to “administering” the meeting, it is not entirely clear what this would entail.
We were not provided any details about how councilmembers’ individual staff might
25
83 Ops.Cal.Atty.Gen. 221 (2000); see Gov. Code, § 54956.8 (real-estate exception).
26
83 Ops.Cal.Atty.Gen., supra, at p. 224.
27
Ibid.
28
Id. at p. 225.
Assemblymember Christopher M. Ward, letter to Senior Assistant Attorney General
29
Mollie Lee, Nov. 2, 2021, p. 1, on file.
30
League of California Cities, letter to Deputy Attorney General Catherine Bidart,
Mar. 3, 2022, p. 3, fn. 11, on file; see also Assemblymember Christopher M. Ward, letter
to Senior Assistant Attorney General Mollie Lee, Nov. 2, 2021, p. 1, on file (providing
factual background regarding the City of San Diego and noting that currently staff
working for individual councilmembers do not attend closed sessions).
6
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administer a meeting, and we are mindful that it is the legislative bodies themselves who
conduct meetings, including closed sessions. In the absence of further details, and given
our understanding that most city councils operate in closed sessions without individual
councilmembers’ support staff, we cannot say the presence of such staff is a necessity.
As to taking notes, the Act expressly authorizes an agency to designate a clerk or
other officer or employee of the agency to take notes at and to record closed sessions. 31
This indicates that the Legislature did not intend for anyone else to perform this role. It
therefore cannot be “essential” for a member’s individual staff to play that role. If an
agency would like to have a note-taker at closed sessions, then the agency, as a whole,
may designate a single employee to attend each closed session for note-taking and
recordings. But individual councilmembers may not designate their own individual note-
takers to attend closed sessions.
As to the attendance of individual members’ support staff because they “may
have” information that would “assist Councilmembers to better serve their constituency,”
this also falls short of an “essential” role in conducting the business of a closed session.
We recognize that there may be members who believe that their individual staff provide
essential assistance in any setting. But closed sessions exceptions must be interpreted
narrowly. 32 A person’s presence may be beneficial to an agency’s closed session
deliberations but still be unauthorized because the person has no “essential” role to
play—as with the mayor and the alternate councilmember in our prior opinions. Here,
informational assistance from an individual member’s staff must confer more than a mere
potential benefit; instead, it must be essential to the particular business of the legislative
body as a whole that provides the basis for the closed session.
We therefore conclude as a general matter that staff of individual councilmembers
do not have a role that would authorize them to attend closed sessions. 33 We emphasize,
however, that who may attend any given closed session will always depend on the
particular context. Accordingly, there may be instances in which an individual member’s
support staff has a qualifying role to play in a particular closed session. For example,
they could be an essential witness with personal knowledge relevant to a particular closed
31
See Gov. Code, § 54957.2.
32
Cal. Const. art. I, § 3(b)(2) (mandating that a statute be “broadly construed if it furthers
the people’s right of access, and narrowly construed if it limits the right of access”);
Shapiro v. Board of Directors (2005) 134 Cal.App.4th 170, 174.
33
We note that we are not presented with a situation where an individual member has a
disability who requires assistance in order to participate in a closed session, which would
be a separate inquiry and entail a different analysis.
7
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session matter. 34 Like anyone else, however, without a qualifying role in the meeting,
their presence would undermine the Act’s rationale for the closed session and transform
the meeting into an unlawful semi-closed session.
2. If legislative support staff of individual city councilmembers are not permitted to
attend a closed session as described in Question 1, may the members share
information obtained in closed session with their individual support staff to assist
the members in performing their legislative duties?
As a threshold matter, we assume that the legislative body has not already
disclosed the information asked about here. After a legislative body’s closed session, it
must make certain disclosures. 35 In addition, the body may authorize, by a vote of the
body, certain other disclosures. 36 Absent such authorization, and for the reasons
explained below, we conclude that the Act prohibits a councilmember from disclosing
closed-session information to the member’s own support staff.
This conclusion flows from our conclusion in Question 1 that individual support
staff generally may not attend closed sessions. If someone is not authorized to attend a
closed session, it follows that they are likewise not authorized to obtain information from
that closed session. A contrary conclusion would undermine the confidentiality of the
closed-session proceedings. Each one of the Act’s closed-session exceptions reflects a
legislative determination that confidentiality outweighs the ideal of open government in
that circumstance. 37 That confidentiality would evaporate if closed-session information
could be shared with individuals excluded from the closed session.
Our conclusion is also compelled by two specific sections of the Act that reflect a
general intent for closed-session information to be kept confidential. The first provision,
34
See 88 Ops.Cal.Atty.Gen., supra, at pp. 23–24 (observing 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,” quoting
80 Ops.Cal.Atty.Gen. 308, 311, fn. 5 (1997)); 46 Ops.Cal.Atty.Gen., supra, at p. 34.
35
Gov. Code, §§ 54957.1, 54957.7.
36
See Gov. Code, § 54963, subd. (a) (“A person may not disclose confidential
information that has been acquired by being present in a closed session authorized by
Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8, or
54957.10 to a person not entitled to receive it, unless the legislative body authorizes
disclosure of that confidential information”).
37
63 Ops.Cal.Atty.Gen. 153, 154 (1980) (explaining with reference to exceptions that
Act recognizes “certain situations where this basic policy of ‘government in the sunshine’
is outweighed by the necessity for confidentiality”).
8
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Government Code section 54963, protects the confidentiality of information from certain
closed sessions by prohibiting disclosure to those who are “not entitled to receive it.” 38
And individual support staff are not “entitled to receive” confidential information from
those closed sessions. Thus, section 54963 prohibits a member from disclosing
confidential information from those closed sessions to their individual staff. Indeed, the
section contains provisions prescribing punishment to members for willful unauthorized
disclosures. 39
We recognize that section 54963, in the context of prescribing punishment for
unauthorized disclosures, contemplates that such disclosures may occur by employees (as
well as by members). 40 This contemplates that there may be circumstances when an
employee will receive closed-session information. But that does not mean that all
employees have a blanket authorization to receive closed-session information. We
believe that it instead simply accounts for situations when an employee receives closed-
session information, whether authorized (such as in the case of an authorized closed-
session attendee) or not, and the employee improperly discloses it. We see nothing
indicating that staff who are not authorized to attend the closed session in the first place
may nevertheless receive confidential information from the closed session. 41
The second relevant provision, Government Code section 54957.2, provides that
the minutes of closed sessions “shall be kept confidential” and are “available only to
members of the legislative body.” 42 This provision evinces a clear intent to keep closed
38
Gov. Code, § 54963, subd. (a) (“A person may not disclose confidential information
that has been acquired by being present in a closed session authorized by Section
54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8, or 54957.10
to a person not entitled to receive it, unless the legislative body authorizes disclosure of
that confidential information”).
39
Gov. Code, § 54963, subd. (c) (providing that violation of section “may be addressed
by the use of such remedies as are currently available by law, including, but not limited
to” injunctive relief and referral of legislative member to grand jury).
40
Gov. Code, § 54963, subd. (d) (stating that prerequisite to employee discipline is notice
of section’s requirements or training on them).
41
We note that the section does not apply to certain disclosures, such as confidential
inquiries to prosecutors concerning a perceived violation and disclosures made of a
perceived illegal action in closed session, but as these have no apparent connection to
members’ staff, they do not affect our analysis. (Gov. Code, § 54963, subds. (e) & (f).)
42
Gov. Code, § 54957.2. If a violation of the Act at the closed session is alleged, then
the recording is also available to a court. (Ibid.)
9
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sessions confidential. It would be undermined if staff could gain information from the
closed session from their member after the session concludes.
A Court of Appeal decision, which predated section 54963, held that section
54957.2’s protection of closed-session minutes and recordings precludes discovery
requests of member recollections of a closed session. 43 The court found nothing in the
Act providing for that type of disclosure. 44 The court observed that, even though the Act
did not at that time expressly provide for the confidentiality of closed-session
proceedings, a confidentiality requirement “may be strongly inferred from the various
provisions of the Act pertaining to the recording of closed sessions.” 45 The court
explained:
In particular, the Act provides that a legislative body has the option of
keeping a minute book for closed sessions, in which the “topics discussed
and decisions made” may be recorded. (§ 54957.2 [legislative body “may”
keep a minute book].) The minute book is expressly made confidential:
“The minute book made pursuant to this section is not a public record
subject to inspection pursuant to the California Public Records Act ... and
shall be kept confidential. The minute book shall be available only to
members of the legislative body or, if a violation of this chapter is alleged
to have occurred at a closed session, to a court of general jurisdiction
wherein the local agency lies.” (§ 54957.2, subd. (a); see also Register
Division of Freedom Newspapers, Inc. v. County of Orange (1984) 158
Cal.App.3d 893, 907, 205 Cal.Rptr. 92.)[46]
43
Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 326–327; see Stats. 2002, ch.
1119, § 1 (enacting section 54963), Stats. 1981, ch. 968, § 31 (enacting current version of
section 54957.2).
44
Kleitman v. Superior Court, supra, 74 Cal.App.4th at pp. 326–327 (“[T]he Act
provides only for the in camera review of minute books and the disclosure of the tape
recordings of a closed session under certain specific circumstances. Accordingly, we find
that the trial court cannot compel disclosure of the personal recollections of city council
members with respect to a closed session, without improperly reading into the Act a
discovery procedure which would violate the confidentiality of closed sessions which is
inherent in the Act”).
45
Id. at p. 332.
46
Ibid.
10
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The court then agreed with prior opinions of ours concluding that disclosure of
closed-session proceedings would destroy the confidentiality inherent in the Act. 47 First,
because “the recording of a closed session discussion must be kept in confidence, it
follows that oral communications of such information may not be made to the public.” 48
And further, “the statutes authorizing closed sessions and making records thereof
‘confidential’ would be rendered meaningless if an individual member could publicly
disclose the information . . . received in confidence.” 49
The reasoning in these prior opinions remains true. 50 And applying that reasoning
here supports the conclusion that councilmembers may not disclose closed-session
information to their staff who were not authorized to attend the closed session.
3. Would it violate the Ralph M. Brown Act for a city council acting as the city’s
housing authority to meet jointly in closed session with a board of housing
commissioners, which the housing authority oversees, provided that statutory
authorization exists for both entities to go into closed session?
We are given no context for this question other than that it pertains to the City of
San Diego’s Housing Authority, which oversees a Board of Housing Commissioners. 51
Publicly available information indicates that the latter advises the former on items
including “proposed changes to housing policy, property acquisitions, other financial
47
Id. at p. 334.
48
Ibid., quoting 76 Ops.Cal.Atty.Gen. 289, 291 (1993).
49
Id. at p. 334, quoting 76 Ops.Cal.Atty.Gen., supra, at p. 290 and citing
80 Ops.Cal.Atty.Gen. 231, 239 (1997).
50
Cf. County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1105–1107
(rejecting discovery of closed-session minutes because Legislature made them exempt
from disclosure); 86 Ops.Cal.Atty.Gen., supra, at p. 214 (concluding that, under similar
state open meetings law, legislative body’s appointee to board could not disclose board’s
closed-session information to appointing body or its counsel) & id. at p. 215 (stating that
under similar state open meetings law, “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”).
51
These entities are subject to the Brown Act. (See Gov. Code, §§ 54951 [“local
agency” includes general and charter cities], 54952, subd. (a) [“legislative body” includes
“governing body of a local agency”]; Torres v. Board of Commissioners (1979) 89
Cal.App.3d 545, 547 [Brown Act applies to housing authority].)
11
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commitments, and agency operations, including allocation of resources, revisions to
personnel policies and annual administrative and operating budgets.” 52
The question assumes that statutory authorization exists for each body to go into
closed session. As explained below, we see nothing in the Brown Act to prohibit two
bodies from jointly meeting in closed session, as long as each body qualifies under the
same set of facts for the same express exception authorizing a closed session. Each one
of the Act’s closed-session exceptions reflects a circumstance where the need for
confidentiality outweighs the ideal of open meetings. If legislative bodies could not meet
together in closed session when they jointly satisfy an exception, it would thwart the
Act’s intent to allow closed sessions under that exception.
One commenter asserts that the Act precludes joint closed sessions because the
Act does not expressly provide for them. This view is based on section 54962, which
states “[e]xcept as expressly authorized . . . no closed session may be held by any
legislative body of any local agency.” 53 In the commenter’s view, the absence of an
express reference to joint closed sessions means they are never authorized. We disagree.
The Legislature added this “expressly authorized” language at the same time that it
amended the pending-litigation exception to make that exception the sole basis for a
closed session to protect the attorney-client privilege. 54 As we have explained in our
Brown Act manual:
Under the Brown Act, closed sessions must be expressly authorized by
explicit statutory provisions. Prior to the enactment of section 54962, the
courts and this office had recognized impliedly authorized justifications for
52
According to its website, the San Diego Housing Commission Board of
Commissioners reviews and advises on those items for the Housing Authority of the City
of San Diego, which is composed of the City’s nine-member City Council.
(https://www.sdhc.org/governance-legislative-affairs/sdhc-board-of-commissioners/ [as
of May 13, 2022]).
53
The section in full provides:
Except as expressly authorized by this chapter, or by Sections 1461, 1462,
32106, and 32155 of the Health and Safety Code, or by Sections 37606,
37606.1, and 37624.3 of the Government Code as they apply to hospitals,
or by any provision of the Education Code pertaining to school districts and
community college districts, no closed session may be held by any
legislative body of any local agency.
Gov. Code, § 54962.
54
Stats. 1987, ch. 1320, §§ 5 & 6.
12
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closed sessions. . . . However, that legislation made it clear that closed
sessions cannot be conducted unless they are expressly authorized by
statute. Although confidential communication privileges continue to exist
in other statutes such as the Public Records Act and Evidence Code section
1040, these provisions no longer can impliedly authorize a closed
session.[55]
In our view, the amendment prohibiting closed sessions “except as expressly
authorized,” made in tandem with the attorney-client privilege amendments, merely
reflects an intent to prohibit implied exceptions based on confidentiality protections. 56 In
light of that apparent purpose, we do not believe that exceptions expressly authorizing
closed sessions must be disregarded when they are met jointly by two legislative bodies
rather than one.
Finally, we acknowledge that the various exceptions in the Act authorize “a
legislative body” to meet in closed session, which could be read to suggest that no more
than a single legislative body may meet in closed session. 57 But we believe that these
references to “legislative body” in the singular merely reflect a legislative drafting
technique that uses the singular, rather than reflect an intent to preclude two legislative
bodies from meeting under an exception. 58 “[U]nder the general rules of statutory
construction, the use of a word in the singular form is interchangeable with the use of the
word in the plural form.” 59 And the Government Code expressly instructs at the outset
that the singular includes the plural. 60
55
California Attorney General’s Office, The Brown Act: Open Meetings for Local
Legislative Bodies (2003), p. 30, internal citations omitted.
56
See, e.g., 88 Ops.Cal.Atty.Gen., supra, at p. 18 (“The Legislature’s addition of section
54962 has effectively eliminated the possibility of finding an implied authorization for a
closed session”); California Attorney General’s Office, The Brown Act: Open Meetings
for Local Legislative Bodies (2003), p. 37.
57
See, e.g., Gov. Code, §§ 54956.7 (authorizing “a legislative body” to meet in closed
session), 54956.8 (same), 54956.81 (same).
58
See Martineau, Drafting Legislation and Rules in Plain English (3d. reprint, 1998)
p. 67 (“A traditional principle of drafting legislation or a rule is to make the subject of a
sentence singular rather than plural”).
59
Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 907.
60
Gov. Code, § 13 (“The singular number includes the plural, and the plural the
singular”).
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Determining whether two legislative bodies together satisfy a closed-session
exception in any particular situation would, of course, be a fact-specific inquiry. But we
offer by way of illustration the pending-litigation exception, which could be jointly
invoked by two agencies that share an attorney and are on the same side of litigation. 61
Indeed, a published case illustrates that the two agencies identified in this question were
both plaintiffs together in the same case and represented by the same attorneys. 62 We
believe that in that particular circumstance, or other circumstances where two bodies
together meet the requirements of a closed-session exception, they may jointly meet in
closed session for the limited purposes of the exception.
61
See Gov. Code, § 54956.9. As prior opinions indicate, two agencies would not satisfy
the pending-litigation exception if, for instance, they were not on the same side,
(62 Ops.Cal.Atty.Gen. 150 (1979)), or one of them was not a party to the litigation (see
Shapiro v. Board of Directors (2005) 35 Cal.Rptr.3d 826; see also Gov. Code, § 54956.9,
subds. (d) (defining pending litigation) & (h) (defining when local agency is a “party”)).
62
San Diego Housing Com’n et al v. Industrial Indem. Co. (1998) 68 Cal.App.4th 526,
530 (stating that case is brought “by plaintiffs and respondents San Diego Housing
Commission and San Diego Housing Authority”); see https://www.sdhc.org/governance-
legislative-affairs/sdhc-board-of-commissioners/ [as of May 13, 2022] (referring to “The
San Diego Housing Commission (SDHC) Board of Commissioners (Board)”).
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21-1102