City says closed meeting on Measure V was legal — read the Post’s letter to the city and the city’s response

BY EMILY MIBACH
Daily Post Staff Writer

Menlo Park’s city attorney has declined to disclose information that supports her decision to hold a closed council meeting to discuss Measure V.

Measure V is a citizen’s intiative on the November ballot that would make it difficult for apartments to be built in single-family neighborhoods.

Here’s what happened

In early August, before Measure V was put on the ballot, Councilman Drew Combs wanted to pitch to his colleagues on council a compromise with the residents backing the ballot measure.

But council didn’t discuss the compromise publicly.

However, on Aug. 4 council held a closed-door meeting to discuss that the agenda said was “anticipated litigation” related to the measure. The state law regulating open meetings, the Brown Act, allows closed sessions under very specific circumstances.

After the meeting, the measure continued its path to the ballot, and will be voted upon in the Nov. 8 election.

Dave Price, the Daily Post’s editor, sent the city what the law calls a “cure notice,” saying the Aug. 4 meeting was held in violation of the Brown Act. Price contends that in order to close the meeting from the public, the city needed an actual lawsuit threat, not speculation about a possible threat.

Price’s letter calls on the council to remedy the violation.

‘Significant exposure to litigation’

The city’s attorney, Nira Doherty, responded in a letter to the Post saying the closed session on Aug. 4 was on the agenda “because a point had been reached where, in the opinion of the City Council based on advice from the city attorney, and based on ‘existing facts and circumstances,’ there was significant exposure to litigation against the city.”

Doherty said that the city isn’t required to disclose the “facts and circumsances” that led to the closed meeting because that would give a potential plaintiff an advantage in a future lawsuit.

Doherty said in her letter that it is not yet known who will sue the city, and therefore the city cannot release any written legal threats, as Price had requested.

Doherty also said that since the council did not tell her to enter into any litigation, defend the city from a lawsuit or settle any lawsuits, it was not required to publicly make a report on its action after the Aug. 4 meeting.

The compromise concerned the former site of Flood School, which the Ravenswood City School District wants to turn into a housing project to generate money from the rents.

The backers of Measure V hoped that the initiative would have passed in order to stop the school district’s housing project.

New state law

However a state new law passed last month, AB2295, allowing school districts to build housing on surplus properties so long as the developments meet local zoning standards for things like height.

The compromise that went to council would have reduced the number of apartment on the Flood School site from 80-90 to 60. The deal also called for adding a second access point to the site to reduce traffic.

Below is Price’s letter to the city about the closed meeting and the city attorney’s response

Subject: Notice of Cure under Brown Act

Sept. 19, 2022

Mayor Betsy Nash
Menlo Park City Council members
Menlo Park City Clerk Judi Herren
Menlo Park City Attorney Nira Doherty

Dear Mayor Nash,

This letter is to call your attention to what I believe were substantial violations of the Ralph M. Brown Act.

On Aug. 4, City Council held an executive session to discuss, as the agenda put it, “anticipated litigation” — one potential case.

Based on statements Councilman Drew Combs made to a Daily Post reporter, a proposed compromise involving the Measure V initiative was discussed during this meeting.

During the executive session, I believe council considered the choice of accepting the compromise or letting Measure V go to the voters.

If council had accepted the compromise, it would have resulted in the removal of Measure V from the ballot. However, Measure V remains on the ballot.

I believe three violations of the Brown Act occurred.

1. Discussion of a political issue, i.e. a ballot initiative, does not fit the definition of “anticipated litigation” as described in Government Code Section 54956.9 (a)-(e).

2. If there was a threat of litigation, the city was required to provide the threat to the public with the meeting packet, according to Government Code Section 54956.9 (e)(5) and affirmed by Fowler v. City of Lafayette (2020). No such document was provided by the city.

3. A decision was made by council to reject the compromise, but the action was not reported to the public. Government Code Section 54952.6 defines “action taken” as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”

As you are aware, the Brown Act creates a remedy for illegal meetings.

Pursuant to that provision (Government Code Section 54960.1), I demand that the Menlo Park City Council cure and correct the illegally taken action as follows:

• Release any threat of litigation made to the city that was discussed during the Aug. 4 meeting.

• Hold a public meeting so members of council can report the positions they took, by vote or otherwise.

As provided by Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so.

Sincerely,

Dave Price
Editor and co-publisher
The Daily Post and padailypost.com
385 Forest Ave., Palo Alto CA 94301
(650) 328-7700
price@padailypost.com

Response from City Attorney Nira Doherty

September 28, 2022

Re: City of Menlo Park, Alleged Brown Act Violations

Dear Mr. Price:

I am in receipt of your letter to the Menlo Park City Council dated September 19, 2022 in which you allege that the City violated the Brown Act, California Government Code Section 54950, et seq. (the “Act”) in connection with a closed session held on August 4, 2022.1

Specifically, you have alleged that the following violations occurred which are collectively referred to herein as the “Complaint”:

1. Discussion of a political issue, i.e. a ballot initiative, does not fit the definition of “anticipated litigation” as described in Government Code Section 54956.9 (a)-(e).

2. If there was a threat of litigation, the city was required to provide the threat to the public with the meeting packet, according to Government Code Section 54956.9 (e)(5) and affirmed by Fowler v. City of Lafayette (2020). No such document was provided by the city.

3. A decision was made by council to reject the compromise, but the action was not reported to the public. Government Code Section 54952.6 defines “action taken” as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”

We have reviewed your Complaint and have confirmed that the City has not violated the Act in conducting the closed session on August 4, 2022. Therefore, the City will not be taking any of the actions requested in your September 19th letter as there is no violation to cure or correct.2

We also note at the outset that we cannot disclose confidential information that is discussed in closed session.3 Therefore, this letter does not respond to your assumptions regarding anything that was discussed in closed session.

Our response to the specific allegations in your Compliant is set forth below.

1. The Anticipated Litigation Closed Session Was Appropriate

Your Complaint alleges:

“Discussion of a political issue, i.e. a ballot initiative, does not fit the definition of “anticipated litigation” as described in Government Code Section 54956.9 (a)-(e).”

The August 4, 2022, the City Council meeting agenda included an item for closed session discussion pursuant to Government Code Section 54956.9 – Anticipated Litigation, “Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Section 54956.9: One potential case.”

Closed sessions are permitted under the Act to confer with or to receive advice from legal counsel regarding pending litigation when discussion in open session would prejudice the agency’s position in the litigation.4 Section 54956.9 is applicable to all phases of litigation, from pre-litigation strategy discussions to a lawsuit’s final disposition. While the general purpose of the Brown Act is to ensure open and public meetings, the Act recognizes the need at times to both deliberate and act in private when necessary due to important policy considerations.5

Pending Litigation

Determining whether the pending litigation exception in the Act applies requires application of the various statutory definitions set forth in Section 54956.9. “Litigation” is defined as including any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.6

Pursuant to Section 54956.9(d), litigation is considered “pending” in the following circumstances:

(1) Litigation, to which the local agency is a party, has been initiated formally.

(2) 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.

(3) 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 (2).

(4) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

As indicated in the agenda title for the closed session held on August 4th, this matter was agendized under Section 54956.9(d)(2) because a point had been reached where, in the opinion of the City Council based on advice from the City Attorney and based on “existing facts and circumstances,” there was significant exposure to litigation against the City.

Existing Facts and Circumstances

For purposes of Section 54956.9(d)(2), “existing facts and circumstances” consist of one of the following:

(1) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.

(2) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.

(3) The receipt of a claim pursuant to the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5.

(4) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.

(5) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicly disclosed.7

In this case, the City held the closed session pursuant to section 54956.9(e)(1), on the basis of facts and circumstances that the City believed could result in litigation against the City but which were not yet known to the potential plaintiff or plaintiffs. Contrary to your assertions, and as explained in greater detail below, such “facts and circumstances” do not trigger any requirement that the City produce documentation or publicly provide any details regarding the nature of the potential litigation. In fact, the Act specifically provides that facts and circumstances that might result in litigation but which the local agency believes are not yet known to a potential plaintiff “need not be disclosed.”8 Such a requirement would run afoul of the important public policy that cities are entitled to effective and confidential legal counsel in all phases of litigation.

The City properly agendized and held the August 4th closed session related to anticipated litigation in compliance with the provisions of the Act described above.

2. The City Was Not Required to Provide Any Documentation of the Pending Litigation

The second allegation in your Complaint is that:

“If there was a threat of litigation, the city was required to provide the threat to the public with the meeting packet, according to Government Code Section 54956.9(e)(5) and affirmed by Fowler v. City of Lafayette (2020). No such document was provided by the city.”

Your reliance on Section 54956.9(e)(5) is misplaced given that the closed session on August 4th was held on the basis of the existing facts and circumstances described in Section 54956.9(e)(1), not on the basis of a statement threatening litigation made by a person outside an open and public meeting described in Section 54956.9(e)(5). As expressly stated in Section 54956.9(e)(1), when the existing facts and circumstances are not known to the potential plaintiff or plaintiffs, those facts and circumstances need not be disclosed.
Your reliance on the court’s decision in Fowler v. City of Lafayette is also misplaced. The Fowler decision applies to closed session discussions held pursuant to Sections 54956.9(e)(2) and (5) not to Section 54956.9(e)(1).9

The City did not hold the August 4th closed session in reliance on Section 54956.9(e)(2) or (5). Additionally, the Fowler decision does not, as you suggest, apply to all categories of “existing facts and circumstances” set forth in Section 54956.9(e). Specifically, Fowler does not suggest the city must provide the “threat to the public with the meeting packet” where the “existing facts and circumstances” forming the basis for a closed session discussion fall under subdivisions (e)(1), (e)(3), or (e)(4) of section 54956.9(e).

Accordingly, the City was not required to provide any documentation regarding the pending litigation.

3. There Was No Reportable Action from the August 4, 2022 Closed Session

The third and final allegation in your Complaint is that:

“A decision was made by council to reject the compromise, but the action was not reported to the public. Government Code Section 54952.6 defines “action taken” as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”

There are limited reporting requirements under the Act related to closed session matters which require the legislative body to reconvene into open session and make certain disclosures regarding actions taken in the closed session.10

With regard to litigation, Section 54957.1(a) requires disclosure only when approval is given to legal counsel to: (i) defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation; or (ii) a settlement of pending litigation. Because neither of those circumstances were present in connection with the closed session held on August 4th, the City was not required to publicly make a report following closed session.

In summary, the allegations in the Complaint are inaccurate and the closed session held on August 4, 2022 was conducted appropriately and in conformance with the Brown Act.

Sincerely,
Nira Doherty, City Attorney
Cc: Justin Murphy, City Manager

1. All statutory references herein are to the California Government Code.
2. See section 54960.1(c)(2).
3. Section 54963(a); 75 Cal. Op. Att’y Gen. 14 (1992).
4. Section 54956.9(a); see also Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 55-56 [“. . . Government should have no advantage in legal strife; neither should it be a second-class citizen. . . . 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.”].
5. 75 Cal. Op. Att’y Gen. 14 (1992)
6. Section 54956.9(c).
7. Section 54956.9(e).
8. Section 54956.9(e)(1).
9. Fowler v. City of Lafayette (2020), 46 Cal. App. 5th 360, 367.
10. Govt. Code Section 54957.7(b)

7 Comments

  1. Every single member of Menlo’s City Council opposes Measure V yet it will pass in a landslide.
    Ray Mueller opposes Measure V.
    Cecilia Taylor opposes Measure V.
    Betsy Nash opposes Measure V.
    Jen Wolosin opposes Measure V.
    Drew Combs opposes Measure V.

  2. “Price contends that in order to close the meeting from the public, the city needed an actual lawsuit threat, not speculation about a possible threat.”

    If the attorney intends to clarify the city’s exposure from potential litigation, that information would be devastating to the city’s position.

  3. That took a long time to say “We will do what we want to do, you can’t prove anything since it was secret, now go away.” That’s pretty par for the course with this city council. Earlier this week they appointed a lackey to the planning commission, shutting out a Measure V supporter. So much for “listening” and transparent process.

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