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FROM: CITY ATTORNEY, CITY MANAGER and ASSISTANT CITY MANAGER
DATE: OCTOBER 3, 2006
SUBJECT: MINUTES OF CLOSED SESSIONS
Give direction regarding whether the City Council would like the City Attorney to prepare a resolution directing the City Clerk to deputize one or more individuals as deputy City Clerks and designating the individuals as the persons who will attend closed session meetings of the City Council to prepare verbatim minutes of the closed sessions.
Councilmember Gardiner requested that an item be placed on an agenda concerning the preparation of verbatim minutes for closed sessions. On August 1st, the item was continued due to the late hour and the departure of Councilmember Clark. However, prior to continuing the matter, Councilmember Gardiner stated that his request for the preparation of closed session minutes pertained to discussion in closed session of pending litigation and not to other discussion of other topics that are permitted under the Brown Act, such as potential litigation or the price and terms of payment for the purchase of real property. Due to the length of the agendas on August 15th and September 19th and Councilman Stern’s scheduled absence from the September 5th meeting, the item was continued to this evening’s meeting.
Government Code Section 54957.2(a), which is part of California’s open meeting law, the Ralph M. Brown Act (“the Brown Act”), provides that a legislative body may adopt an ordinance or resolution to require an officer or employee of the agency to keep a minute book of topics that are discussed and decisions that are made in closed session. That section states:
“(a) The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1), 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. Such a minute book may, but need not, consist of a recording of the closed session. “
Thus, pursuant to this Section, legislative bodies have the ability to designate one or more individuals as clerks to prepare minutes or tape recordings of closed sessions. Because minutes or tape recordings of closed sessions are not required, they do not eliminate or replace the other requirements of the Brown Act regarding closed sessions, including the listing of the topics on the agenda and the announcements by the City Attorney before and after the closed sessions.
If the City Council wishes to have minutes of closed sessions prepared, there are several policy issues that need to be addressed, each of which is discussed below.
A. First, is the issue of whom the Council should designate as the person to take the minutes.
Because the City Clerk is not a court reporter and frequently has other duties before and during the closed sessions, Staff recommends that a professional minute taker or court reporting service be used. Staff has contacted three different individuals to obtain estimates of the cost to prepare verbatim minutes of closed sessions. One person, who currently assists with the preparation of minutes of City Council meetings, is working towards becoming an official court reporter and has the necessary equipment. The other two individuals are court reporters in the South Bay; one of those reporters also has prepared minutes of Council meetings for the City. All three individuals have stated that they will sign confidentiality agreements. However, the person who currently assists with the preparation of City Council minutes, but is not a court reporter, recently informed the City Clerk that she is no longer available to take minutes for the City. Therefore, unless a new recruitment is conducted, the City would be limited to the two court reporters previously contacted by staff.
It is likely that the same person will not always be available to cover every Council meeting. Accordingly, Staff recommends that the City Council adopt a resolution that would designate the two court reporters as deputy clerks who could perform the duty of taking the closed session minutes. The City Clerk then could deputize each of these individuals so that they would be officers of the City and, accordingly, would be authorized to take the minutes of the closed session under the provisions of Government Code Section 54957.2(a).
B. Second, is the issue of cost.
Based on the estimates received from the three individuals noted above, it appears that the average cost of preparing the minutes for a one-hour closed session will be approximately $500.00. If one calculates that there will be 26 closed sessions during a one-year period, the total cost for preparing the closed session minutes for all of these meetings will be approximately $13,000. However, since Dr. Gardiner has clarified that his request only concerns discussion of pending litigation in closed session, and because pending litigation is not an item that is listed on every closed session agenda, the total estimated cost of $13,000 probably would be higher than the actual cost of preparing minutes for only those closed sessions.
Minutes that are prepared for the open session of City Council meetings are summary minutes. It is our understanding that Dr. Gardiner is requesting that verbatim minutes be prepared for the closed sessions. The three individuals who were consulted by the City Clerk’s office in connection with the preparation of this report all have said that it is less time consuming (and therefore less expensive) for them to prepare verbatim minutes than it is to prepare the summary minutes, due to the time it takes to decide what should be included or eliminated from the minutes or how the speakers’ remarks should be described.
D. The fourth issue concerns attempts to obtain minutes of closed sessions.
As stated in Section 54957.2(a), the minutes or tape recordings of closed session meetings are not public records and shall be kept confidential. However, Section 54957(a) also states that if someone alleges that a violation of the Brown Act occurs during a closed session, the minutes or tape recordings of the closed session can be required to be produced to a court for review by the judge. (See, Kleitman v. Superior Court, 74 Cal.App.4th 324 (1999).)
Requests for judicial review of closed session minutes has occurred in lawsuits filed by city residents (Id.); lawsuits filed by newspapers (Register Division of Freedom Newspapers, Inc., v. County of Orange, 158 Cal.App.3d 893 (1984)), and lawsuits filed by city council members (Hamilton v. Town of Los Gatos, 213 Cal.App.3d 1050 (1989)). Local agencies also have provided copies of minutes or recordings of closed sessions to the District Attorney’s office pursuant to a confidentiality agreement when the District Attorney is investigating a claim of a Brown Act violation that allegedly occurred during a closed session. (See, County of Los Angeles v. Superior Court, 130 Cal.App.4th 1099 (2005).
Thus, the fact that the Statute states that minutes of closed sessions are not public records does not mean that someone will not try to use those minutes in litigation against the City that includes allegations of Brown Act violations.
The decision whether to prepare tape recordings or minutes of closed session meetings is a policy decision for the City Council. Accordingly, Staff is seeking direction from the City Council regarding this issue. If the Council would like minutes of closed sessions to be taken, then the City Attorney will prepare a resolution implementing that action for adoption at the next City Council meeting.
If the City Council directs Staff to prepare minutes of closed session, it is estimated that it will cost the City approximately $13,000 annually to do so.
Letter from Councilman Stern