Wednesday, November 23, 2005
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C.A. Nixes Closed-Door Meetings Between City Entity, Counsel
Agency’s Right to Meet Privately With Its Lawyers Cannot Be Delegated, Panel Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
The board of a non-profit corporation created by a city to assist its redevelopment agency in acquiring real estate cannot meet privately with the agency’s lawyers to discuss pending eminent domain litigation, the Fourth District Court of Appeal ruled yesterday.
Overturning a San Diego Superior Court judge’s contrary ruling, Div. One said the Ralph M. Brown Act’s exemption of certain attorney-client discussions from the requirement that local government bodies meet in public must be strictly construed.
Because San Diego’s Centre City Development Corporation is not, and cannot be, a party to the San Diego Redevelopment Agency’s eminent domain suits, the attorney-client exemption of Government Code Sec. 54956.9 does not apply to the corporation or its board, Justice Joan Irion wrote for the court.
San Diego created a redevelopment agency in 1958, and created the CCDC in 1975. A redevelopment plan approved by the City Council in 1992 covers much of the city’s downtown area, and the agency and the CCDC have entered into an operating agreement under which the corporation provides “general management and other staff services for Agency” with respect to the redevelopment projects in the Centre City area.
Entity Approves Settlements
The City Council serves as the governing board of the agency and appoints the board of the CCDC. The agency in turn provides the CCDC with a annual budget for real estate acquisition, and authorizes the corporation to negotiate potential purchases.
If an eminent domain action is necessary, the CCDC is authorized to make a final settlement offer. All settlements—which dispose of 90 percent of the agency’s eminent domain actions—are subject to the CCDC board’s approval.
Irion noted that redevelopment agencies are authorized to bring condemnation suits, but that the San Diego agency has not purported to delegate that authority to the corporation, nor could it likely do so absent a change in state law. Consequently, while the corporation plays a role in the process, all eminent domain suits are brought by the agency.
San Diego resident Melvin Shapiro sued the agency and the CCDC for declaratory, injunctive and mandamus relief under the Brown Act, alleging that the corporation’s board was routinely violating the act by meeting in secret with the outside law firm that represents the agency in eminent domain suits.
Legal Advice
The defendants acknowledged that the meetings took place, but claimed that they were exempt from the Brown Act under Sec. 54956.9. The section allows “a legislative body of a local agency” to hold “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.”
A 1987 amendment to the section states that “all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated” and that “[t]his section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter.”
Superior Court Judge E.L. Strauss ruled for the defendants, reasoning:
“Plaintiff’s interpretation of this exception as narrowly limited to parties actually named in a lawsuit is not persuasive. Here, CCDC plays an important role in the City’s redevelopment projects and the Agency may delegate the evaluation of the eminent domain issues to CCDC for purposes of ensuring that the overall aspects of the redevelopment plan are consistently applied.”
But Irion said the expansion of the exemption beyond actual parties is inconsistent with the principle that exemptions from the Brown Act must be strictly interpreted.
“We have independently reviewed the legislative history of section 54956.9 and have found no indication that the Legislature intended to permit the practice engaged in by CCDC,” she wrote.
Irion distinguished a 1984 attorney general’s opinion that gave a green light to secret meetings between county counsel and an airport commission to discuss airport-related litigation to which the county, but not the commission, was a party.
The opinion, Irion explained, was based on the premise that since county counsel had an attorney-client relationship with all county entities, it could meet with all such entities in private.
That reasoning is no longer persuasive, Irion said, since the 1987 amendment makes clear that “general attorney-client principles have no bearing on whether a legislative body may meet in closed session with legal counsel pursuant to section 54956.9.”
The defendants, Irion went on to say, made reasonable arguments that allowing the CCDC board to meet with agency counsel in closed session would promote governmental efficiency. But it “is not our role, but rather that of the Legislature, to strike an appropriate balance between the competing interests of openness and efficiency in the context of the Brown Act,” she said.
The case is Shapiro v. Board of Directors of the Centre City Development Corporation, 05 S.O.S. 5169.
Copyright 2005, Metropolitan News Company