CC SR 20180501 01 - Brown Act Violations Investigation01203.0001/467744.5
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 05/01/2018
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action to (1) initiate a City proceeding to investigate possible
violation(s) of the “closed session privilege” codified in the Ralph M. Brown Act,
Government Code § 54963; (2) direct Staff and the Office of the City Attorney to conduct
such investigation; (3) task the recently created ad hoc subcommittee to oversee such
investigation and to report the results of the same to the full City Council as and when
appropriate; and (4) authorize the issuance of legislative subpoenas, if and as needed,
to aid in such investigation.
RECOMMENDED COUNCIL ACTION:
(1) Approve Resolution No. 2018-__, A RESOLUTION OF THE COUNCIL OF THE
CITY OF RANCHO PALOS VERDES, CALIFORNIA, DIRECTING CITY STAFF
AND THE OFFICE OF THE CITY ATTORNEY TO INVESTIGATE POSSIBLE
VIOLATION(S) OF THE RALPH M. BROWN ACT, GOVERNMENT CODE §
54963, TASK THE RECENTLY CREATED AD HOC SUBCOMMITTEE TO
OVERSEE SUCH INVESTIGATION AND REPORT THE RESULTS OF THE
SAME TO THE FULL CITY COUNCIL, AND AUTHORIZE THE ISSUANCE OF
LEGISLATIVE SUBPOENAS, IF AND AS NEEDED, TO AID IN SUCH
INVESTIGATION
(2) Alternately discuss and take such other action related to this item as the City
Council deems appropriate consistent with the requirements of law.
FISCAL IMPACT: Unknown
Amount Budgeted:
Additional Appropriation:
Account Number(s):
ORIGINATED BY: William Wynder, City Attorney
REVIEWED BY: Gabriella Yap, Deputy City Manager
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Resolution No. 2018- (page A-1)
BACKGROUND:
The Ralph M. Brown Act, Government Code §§ 54950 et seq., explicitly prohibits
the unauthorized disclosure of “confidential information” acquired in a closed session by
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any person present, and offers various remedies to address breaches of confidentiality.
(Government Code § 54963.) Confidential information is defined as “a communication
made in a closed session that is specifically related to the basis for the legislative body
of a local agency to meet lawfully in closed session . . . .” (Id.)
There exists, in the law, a mandatory duty upon all those attending a closed
session to protect the confidentiality of those discussions. The court, in Kleitman v.
Superior Court (1999) 74 Cal.App.4th 324, 327, has gone so far as to hold that
members of a legislative body cannot be compelled to divulge the content of closed
session discussions through the discovery process.
Only the legislative body acting as a body may agree to divulge confidential
closed session information and, with respect to attorney/client privileged
communications, the entire body is the holder of the privilege and only the entire body
may waive that privilege. (Roberts v City of Palmdale (1993) 5 Cal.4th 363, 373.)
Even prior to codification of Section 54963 the California Attorney General long-
ago opined that officials had a fiduciary duty to protect the confidentiality of closed
session discussions. The Attorney General issued an opinion that it was “improper” for
officials to disclose information received during a closed session. (80 Ops.Cal.Atty.Gen.
231 (1997).)
In any event, in 2002 the Legislature amended the Ralph M. Brown Act to codify
the common law regarding the confidentiality of closed sessions, and went further to
prescribe some of the possible remedies for breaches of that confidentiality. These
remedies include injunctive relief and, where the breach is a willful disclosure of
confidential information, the remedies include referral of a member of the legislative
body to the district attorney and/or the grand jury. Moreover, Government Code § 1222
makes it a misdemeanor for a public official to “wilful[ly] omi[t] to perform any duty
enjoined by law . . . .”
Government Code § 54963 is not violated by a person attending a closed
session who makes a confidential complaint to the district attorney or grand jury
concerning a possible violation of law. Accordingly, the City Council has the legal
authority to investigate potential violations of Section 54963 and report the same to “the
district attorney or grand jury.”
DISCUSSION
In privileged and confidential discussions between City staff and the Office of the
City Attorney there exist specific articulable facts and circumstances to suspect that,
over a substantial period of time, there have been circumstances in which confidential
information (known only in the context of a privileged “closed session”) has been willfully
and unlawfully shared outside of a privileged closed session and in violation of law.
Such circumstances have been shared, in privileged and confidential communication(s),
with the members of the City Council.
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Members of the City Council have, themselves, shared with the Office of the City
Attorney additional specific articulable facts and circumstances to suspect that, over a
substantial period of time, there have been circumstances in which confidential
information (know only in the context of a closed session) has been willfully and
unlawfully shared outside of a privileged closed session.
Moreover, such specific articulable facts and circumstances as are known or
suspected to exist indicate that disclosure(s) of privileged and confidential closed
session information (1) resulted in measurable harm to City in its various negotiations,
(2) disclosed litigation strategy and legal theories to parties adverse to the City, and (3)
hampered and interfered with the collection of, or resulted in the spoliation of, evidence
needed for the prosecution of Municipal Code violations.
Finally, such specific articulable facts and circumstances as are known or
suspected to exist may demonstrate that such disclosures were made with the specific
intent to cause injury and disruption in and to the City and, if confirmed through
investigation, may constitute evidence of actual malice adverse to the health, safety,
and general welfare of City interests.
As a consequence, Staff and the Office of the City Attorney recommend that the
City Council consider taking the following actions:
(1) formally initiate a City proceeding to investigate possible violation(s)
of the “closed session privilege” codified in the Ralph M. Brown Act,
Government Code § 54963, and common law principles of similar effect;
and
(2) direct Staff and the Office of the City attorney to conduct such
investigation; and
(3) task the recently created ad hoc subcommittee to oversee such
investigation and to report the results of the same to the full City Council
as and when appropriate; and
(4) authorize the issuance of legislative subpoenas, if and as needed,
to aid in such investigation.
The attached resolution, if adopted by the City Council, will accomplish these four (4)
recommended actions.
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RESOLUTION 2018-____
A RESOLUTION OF THE COUNCIL OF THE CITY OF RANCHO PALOS
VERDES, CALIFORNIA, INITIATING A CITY PROCEEDING TO
INVESTIGATE POSSIBLE VIOLATION(S) OF THE RALPH M. BROWN
ACT,GOVERNMENT CODE§§54950 ETSEQ.;DIRECTINGCITYSTAFF
AND THE OFFICE OF THE CITY ATTORNEY TO CONDUCT SUCH
INVESTIGATION; TASKING THE RECENTLY CREATED AD HOC
SUBCOMMITTEE TO OVERSEE SUCH INVESTIGATION AND TO
REPORT THE RESULTS OF THE SAME TO THE FULL CITY COUNCIL
ASANDWHENAPPROPRIATE;ANDAUTHORIZINGTHEISSUANCEOF
LEGISLATIVE SUBPOENAS, IF AND AS NEEDED, TO AID IN SUCH
INVESTIGATION
WHEREAS,in2002theLegislatureamendedtheRalphM.BrownAct,GovernmentCode§
54950 et seq., to prohibit the unauthorized disclosure of “confidential information” acquired in a
closed session by any person present (Government Code § 54963); and
WHEREAS, only the legislative body acting as a body may agree to divulge confidential
closedsessioninformationand,withrespecttoattorney/clientprivilegedcommunications,theentire
bodyistheholderoftheprivilegeandonlythe entirebody maywaivethatprivilege.(RobertsvCity
of Palmdale (1993) 5 Cal.4th 363, 373.); and
WHEREAS, the 2002 amendments to the Ralph M. Brown Act went further to prescribe
particular remedies for breaches of confidentiality. These remedies include injunctive relief; and
wherethebreachisawillfuldisclosureofconfidentialinformation,theremediesincludereferralofa
member of the legislative body to the district attorney or the grand jury; and
WHEREAS, Government Code § 1222 makes it a misdemeanor for a public official to
“wilful[ly] omi[t] to perform any duty enjoined by law . . . .”; and
WHEREAS,inprivilegedandconfidential discussions betweenCitystaffandtheOfficeof
the City Attorney there exist specific articulable facts and circumstances to suspect that, over a
substantial period of time, there have been circumstances in which confidential information (know
onlyin the context of a privileged “closed session”) that have been willfullyand unlawfullyshared
outside of the same and in violation of law; and
WHEREAS, members of the City Council have, themselves, shared with the Office of the
City Attorney additional specific articulable facts and circumstances to suspect that, over a
substantial period of time, there have been circumstances in which confidential information (know
only in the context of a closed session) have been willfully and unlawfully shared outside of the
closed session; and
WHEREAS, the City Council has the legal authority to investigate potential violations of
Section 54963 and report the same to the Public Integrity Division of the Los Angeles County
District Attorney and/or the Los Angeles County Criminal Grand Jury.
/ / /
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
Section 1.TheCityCouncilfindsanddeterminesthattheforegoingrecitalsaretrueand
correct, and adopt the recitals as findings in support of the actions taken herein.
Section 2.TheCityofRanchoPalosVerdesdoesherebyinitiatealegislativeproceeding
before the CityCouncil to investigate and determine whether and when the privilege of the “closed
session” mayhave been violated in contravention of Government Code § 54963 (and common law
principles ofsimilareffect)andtotakesuchaction, as maybewarrantedbylaw,includingpossible
reference of such violation(s) to the Public Integrity Division of the Los Angeles County District
Attorney and/or the Los Angeles County Criminal Grand Jury.
Section 3.TheCityCouncilherebytasksthe adhoc subcommittee,comprisedofMayor
ProTem JerryDuhovicandCouncilmemberEric Alegria, first created byResolutionNo.2018-22,
to oversee the legislative proceeding and investigation authorized in this resolution. The ad hoc
subcommittee shall have the authority, with the concurrence of the City Attorney, to determine if,
when,andtowhomanylegislativesubpoena(s)needbeissuedpursuanttothisResolutionrequiring
attendance of witnesses or production of books, records, or other documents for evidence or
testimony in this proceeding and in aid of the investigation authorized herein.
Section 4.The City Council hereby authorizes the issuance of such legislative
subpoena(s)asmaybedeemednecessaryorappropriatebythe adhoc subcommittee,CityManager,
and City Attorney to undertake the investigation and in aid of the proceeding authorized herein.
Section 5.TheCityCouncilherebyordersthatanylegislativesubpoenaissuedpursuant
to the authorityprovided by this Resolution shall be in a form provided by the CityAttorney, shall
be signed by the Mayor and attested to by the City Clerk in the manner required by law. The City
Council hereby declares that failure to comply with any subpoena(s) issued pursuant to this
Resolutionshallsubjectthesubpoenaedparty(ies)totheremediessetforthinGovernmentCode§§
37104 et seq. or such other remedies as is provided by law.
Section 6.TheCityCouncilherebyauthorizestheMayor,CityManager,CityClerkand
theCityAttorneytotake suchactions as maybenecessaryorpropertoissue,serveandenforceany
subpoena(s) issued pursuant to this Resolution. This authority includes the issuance of such
subpoena(s)toanypersonorentity,theirofficers,employeesandagents,infurtheranceofobtaining
publicrecords,testimonyand/orotherinformationthatwillassisttheCity,itsstaff,andattorneysin
their efforts to investigate possible violation(s) of the privilege of the “closed session” under the
RalphM. Brown Act.Shouldawitness fail toproducethesubpoenaeddocuments and/orevidence,
the Mayor is authorized to report such failure to abide by the subpoena to the Superior Court and
seek any and all lawful remedies including a ruling holding the subpoenaed witness in contempt.
Section 7.Severability.Ifanysection,subsection,subdivision,sentence,clause,phrase,
or portion of this resolution or the application thereof to any person, is for any reason held to be
invalidorunconstitutionalbythedecisionofanycourtofcompetentjurisdiction,suchdecisionshall
not affect the validity of the remainder of this ordinance. The City Council hereby declares that it
would have adopted this resolution, and each and everysection, subsection, subdivision, sentence,
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clause,phrase,orportionthereof,irrespectiveofthefactthatanyoneormoresections,subsections,
subdivisions,sentences,clauses,phrases,orportionsthereofbedeclaredinvalidorunconstitutional.
Section 8.TheCityClerkshallcertifytothepassageandadoptionofthisResolutionand
enter it into the book of original Resolutions. This Resolution shall be effective immediately upon
passage and adoption.
PASSED, APPROVED and ADOPTED this 1
st day of May, 2018.
_________________________
Susan Brooks, Mayor
Attest:
___________________
Emily Colborn, City Clerk
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. _________ was duly and regularly passed and adopted by the said City
Council at a regular meeting thereof held on April 17, 2018.
____________________________
Emily Colborn, City Clerk
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