HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
April 13, 2021
Closed Session
April 13, 2021, City Council Special Meeting Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher (iimmosher(o-)-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item IV.A. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED
LI TI GA TION
I will likely comment in person on this item, but want to supplement those comments with some
background information that cannot easily be provided orally.
The Council should be aware the open meeting exemption the City Attorney is asking them to
meet in closed session under is one of the most easily misused.
This exception to discussing the public's business in public applies only in the rare circumstance
that a city has committed some act over which it could be sued, but those who could sue are
completely unaware of what the city has done, and council finds it in the public interest to shield
the injured parties from knowledge of their injury. And even then, as with all closed sessions
regarding litigation, the discussion during the closed session must be confined to the handling of
the potential litigation and not range into "ancillary" matters.
Last year, in at least two court cases I am aware of related to this exemption, courts found the
exemption had been misused.
In January 2020, a superior court in Kern County found that the Bakersfield City staff had
misused this exemption to present information to their Council about their response to the
possible financial impact of undisclosed hypothetical lawsuits. See the press release from the
First Amendment Coalition, and the Court's ruling -- particularly "The Brown Act Claim" starting
at the bottom of page 6 (page 8 of the PDF). It is possible the ruling could be overturned on
appeal, but I am unable to find any record of such happening.
Similarly, in February 2020, although it agreed with the trial court that the error did not prejudice
the final outcome, in the partially published case of Fowler v. City of Lafayette, 46 Cal. App. 5th
360, a California appeals court nonetheless found the City of Lafayette had violated the Brown
Act by using the "anticipated litigation" open meeting exemption without disclosing to the public
the nature of the anticipated litigation, when staff in fact knew an applicant's attorney had
threatened to sue if their project was not approved (and that was the subject of the closed
session).
In matters of this sort, assuming this is a legitimate Government Code Section 54956.9(d)(2)
(e)(1) closed session on a matter unknown to the potential plaintiffs, the public in Newport
Beach would be better informed if the agenda listing went beyond the bare minimum required by
Section 54954.5 and, as Newport Beach agendas once did, added something like "The Council
will be meeting to discuss potential litigation that could arise based on existing facts and
circumstances not yet known to the potential plaintiffs, and revelation of the nature of which
would prejudice the City's position." See, for example, the announcement of Item Il.b on the
Council's May 11, 2010, agenda.