Shapiro v. San Diego City Council

project, which contain a single item agenda description (‘In the matter of authorizing the City Manager to negotiate with a designated representative from the San Diego Padres regarding real property interests in the East Village area of downtown San Diego, and at Qualcomm Stadium in the City of San Diego’) and which do not identify the separate items of business to be discussed in the closed session, and its continuing contention that such practice complies with the Brown Act, violate its duty under section 54954.2, subdivision (a) to post an agenda containing a ‘brief general description of each separate item of business to be transacted or discussed at the meeting.’

“2. The defendant City Council’s practice of posting agendas for closed sessions pursuant to the safe harbor provision in section 54954.5, subdivision (b), which do not contain the names of the negotiators for the City to be attending the closed session and its continuing contention that such practice complies with the Brown Act, violate its duty under section 54954.5, subdivision (b) to specifically name the negotiators for the City of San Diego attending the closed session.

“3. The defendant City Council’s practice of failing to identify in an open and public session before each session closed pursuant to section 54956.8, its negotiators, the real property under negotiation and the persons with whom its negotiators may negotiate for each item of business, and its continuing contention that such practice complies with the Brown Act, violate its duties under section 54956.8[, second paragraph] and section 54957.7, subdivision (a) to identify its negotiators, the real property under negotiation and the persons with whom its negotiators may negotiate for each item of business in an open and public session before each session closed pursuant to section 54956.8.

“4. The defendant City Council’s practice of discussing the topics in sessions closed pursuant to section 54956.8 that are not instructions to its negotiators regarding price and terms of payment for the purchase, sale, exchange or lease of specific real property by or for the City of San Diego and its continuing contention that such practice complies with the Brown Act, violate its duty to limit discussions at such a closed session to instructions to its negotiators regarding price and terms of payment for the purchase, sale, exchange or lease of specific real property by or for the City of San Diego under section 54956.8.

“5. The defendant City Council’s discussion of the following topics in closed sessions on the dates specified, is outside the scope of and so violates its duty under section 54956.8 to limit topics to instructions to its negotiators

regarding the price and terms of payment for the purchase, sale, exchange or lease of specific real property by or for the City of San Diego:

“Closed session Improper topics

“Dec. 1, 1998 - briefing on land acquisition matters, design work of architect engineers, and infrastructure and parking developments

“Dec. 8, 1998 - general MOU discussion

“Jan. 11, 1999 - authority to hire ballpark manager

“Jan. 19, 1999 - need to hire a project director for the ballpark project

“Feb. 16, 1999 - capping interim expenses and environmental impact report (EIR), issues of alternative sites, traffic and parking

“Mar. 30, 31, 1999 - financing of the ballpark project

“Jun. 29, 1999 - naming rights in the ballpark, pending litigation

“Aug. 3, 1999 - EIR

“Sept. 14, 1999 - homeless and effects of redevelopment on homeless

“Sept. 28, 1999 - obtaining consultants.”

The judgment then includes a prohibitory injunction that closely tracks each of the specific declaratory relief findings. First, the City Council is enjoined from violating its duty under section 54954.2, subdivision (a) to post an agenda containing a “brief general description of each item of business to be transacted or discussed at the meeting.” Second, the City Council is enjoined from violating its duties under section 54956.8, second paragraph and section 54957.7, subdivision (a) to identify its negotiators, the real property under negotiation and the persons with whom its negotiators may negotiate for each item of business, in an open and public session before each closed session, pursuant to section 54956.8. Third, the City Council is enjoined from violating its duty to limit discussions at such a closed session to instructions to its negotiators regarding price and terms of payment for the purchase, sale, exchange or lease of specific real property by or for the City under section 54956.8. Also, certain violations were found through the City Council’s previous discussions of certain enumerated topics, as listed in the statement of decision, as outside the scope of and thus a

A

Standards of Review and Contentions on Appeal

The trial court’s decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. (San Diego Union v. City Council (1983) 146 Cal.App.3d 947 , 952 [ 196 Cal.Rptr. 45 ].) Such continuing relief by injunction operates in the future. (Ibid.) A reviewing court will exercise its independent judgment when it is required to interpret and apply a statute where the underlying facts are not in dispute. (Ibid.)

However, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard. Our power in this regard “begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782 , 784-785 [ 59 Cal.Rptr. 141 , 427 P.2d 805 ].)

In this case, although the majority of the facts are undisputed, the trial court had to examine the minutes of the closed sessions and receive a declaration from an assistant city attorney in order to evaluate the City Council’s continuing contention that its practices comply with the Brown Act, with respect to the amount of information required to be posted before it may hold a closed session regarding real property negotiations, and what the proper scope of discussion in such a session may be. These continuing contentions were relevant to the trial court’s assessment of the need for continuing relief by injunction, to operate in the future, in order to assure the City Council’s compliance with the letter and spirit of Brown Act requirements. As defined by Code of Civil Procedure section 525, an injunction is a writ or order requiring a person to refrain from a particular act. This action was brought under section 54960 by Shapiro, as an “interested person,” for injunctive or declaratory relief “for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body . . . .” (Ibid.)

It is true that the City Council has agreed to change its practices regarding the amount of information to be posted prior to a closed session in this real estate negotiation context. Specifically, the City Council agrees it must post the names of its specific negotiators on the agenda preceding a closed session, and must hold an open session before each closed session to disclose certain information. (§ 54956.8.) It no longer contests that it must disclose whether price, terms of payment, or both are under negotiation in a specific context. (§ 54954.5, subd. (b).)

Nevertheless, the City Council continues to contend on appeal, as it did at trial, that injunctive relief is not justified to prevent the City from posting agendas for closed session that fail to comply with the requirements of a brief general description of each item of business to be transacted or discussed. (§§ 54954.2, subd. (a), 54954.5, subd. (b).) Similarly, the City Council continues to contend the trial court had no authority to prohibit it from discussing topics in closed sessions which go beyond instructions to its negotiators regarding purchase or sale price and terms of payment of specific real property. (§ 54956.8.) Also, the City Council contends the court could not properly prohibit it from discussing any topic within a closed session that was not contained as a separate item of business in the posted agenda for that section. (§ 54954.2, subd. (b), referring to emergency situations, previous items of business that were continued within five days for action at a particular meaning, or a need for immediate action subsequent to the posting of the agenda.) Accordingly, this dispute is not moot, and issues remain as to the degree of compliance required under the Brown Act.

In reaching its conclusions, the Supreme Court examined previous case law arising under the Brown Act, pertaining to section 54960, subdivision (a), the enforcement section. The Supreme Court stated that previous Court of Appeal decisions interpreting this section have assumed or asserted that this provision extends to past actions and violations as well as present and future ones—but, evidently, “only as to past actions and violations that are related to present or future ones. [ Citations.] None, however, actually considers whether it does so.” (Regents, supra, 20 Cal.4th at p. 526, fn. 6, italics added.) The Supreme Court then commented, “Be that as it may, there is no indication that any assumption or assertion in these decisions that section 54960(a) possesses a past orientation gave rise to a belief on the part of the Legislature that section 11130(a) possesses one as well.” (Ibid.)

From the above discussion we may conclude that (1) our case is factually distinguishable, because it involves not a one-time “offense” or alleged violation, but a legislative body’s continuing contention that its practices comply with the Brown Act, with respect to the amount of information required to be posted before it may hold certain closed sessions, as well as what the proper scope of discussion in such sessions may be; and (2) so long as the allegations and proof of the legislative body’s practices extend to “past actions and violations that are related to present or future ones,” the Brown Act provisions are brought into play to authorize and justify injunctive relief. That is the case here, where the City Council has staked out a position that the trial court had no authority to prescribe the manner in which it should comply with the Brown Act, by posting agendas for closed sessions containing brief general descriptions of each item of business to be transacted or discussed. (§§ 54954.2, subd. (a), 54954.5, subd. (b).) Also, the City Council continues to resist any judicial direction not to discuss topics in closed sessions which go beyond instructions to its negotiators regarding

We believe that the trial court was justified in concluding that the City Council’s conduct in pursuing its contentions that it may interpret and adjust the requirements of the Brown Act as it sees fit, in dealing with a particular project, clearly demonstrates that more than past violations have occurred or will reasonably probably occur in the immediate future. We conclude the Brown Act authorizes injunctive relief that is based on, in relevant part, a showing of “past actions and violations that are related to present or future ones,” and there was no abuse of discretion in the trial court’s grant of injunctive relief against future such actions and violations. (Regents, supra, 20 Cal.4th at p. 526, fn. 6, italics added.) We accept the trial court’s implied factual findings that there was a likelihood that such conduct would recur in the future and that injunctive relief was warranted. Moreover, our independent interpretation of the statutory scheme confirms that on an adequate factual basis, under section 54960, subdivision (a), injunctive relief may be issued “for the purpose of stopping or preventing violations or threatened violations of’ the act, and therefore the section authorizes the injunctive relief afforded here.

Propriety of Injunctive and Declaratory Relief Regarding Agenda Disclosures and Scope of Discussions in Closed Session

Statutory exceptions authorizing closed sessions of legislative bodies are construed narrowly and the Brown Act “sunshine law” is construed liberally in favor of openness in conducting public business. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 , 682 [ 98 Cal.Rptr.2d 263 ].) Statutory language “must be construed in the context of the statutory framework as a whole, keeping in mind the policies and purposes of the statute [citation], and where possible the language should be read so as to conform to the spirit of the enactment. [Citation.]” (Rudd v. California Casualty Gen. Ins. Co., supra, 219 Cal.App.3d at p. 952.)

A reviewing court exercises its independent judgment when it interprets and applies a statute to underlying facts that are not in dispute. (San Diego Union v. City Council, supra, 146 Cal.App.3d at p. 952.) Here, the parties

We first address the City Council’s contention that the trial court erroneously ordered that disclosure of agenda items take place in excess of the safe harbor provisions of section 54954.5. We then turn to the argument that the legislative body’s discussions that take place in a closed session should be able to include all matters “reasonably related” to those specified in the posted agenda items.

A

Posted Agenda Information

As explained in Kleitman, supra, 74 Cal.App.4th 324 , a legislative body must meet certain notice requirements in the Brown Act before it may hold a closed session regarding real property negotiations: A public session must be held prior to the closed session, in which the real property which is the subject of the negotiations and the person with whom the negotiator will negotiate are both identified. (§ 54956.8.)

Next, section 54954.5, the “safe harbor” provision, provides that “For purposes of describing closed session items pursuant to section 54954.2, the agenda may describe closed sessions as provided below,” and section 54954.2 shall not be deemed to have been violated if the closed session items were described in substantial compliance with the information provided for by the section, irrespective of format. Pursuant to section 54954.5, subdivision (b), as relevant to section 54956.8 (the “Conference with Real Property Negotiators” section), the following items must be disclosed:

“Property: (Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation)

“Agency negotiator: (Specify names of negotiators attending the closed session) (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator so long as the name of the agent or designee is announced at an open session held prior to the closed session.)

“Negotiating parties: (Specify name of party (not agent))

“Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment, or both).” (§ 54954.5, subd. (b).)

Section 54954.5, subdivision (b) is referred to as a “safe harbor” provision, to set certain minimum standards for disclosure of closed session agenda items. After the legislative body holds such a closed session, it must “reconvene into open session and make a public report of the actions taken during the closed session.” (Kleitman, supra, 74 Cal.App.4th at p. 332, citing §§ 54957.1, 54957.7, subd. (b).)

The issue presented here is whether the City Council’s compliance with the safe harbor provisions of section 54954.5, subdivision (b), precludes any requirement that further disclosures be made with regard to particular agenda items set for a closed session. The City Council’s position is that the public could not have been misled about the subject of the closed session discussions here, due to the high profile nature of the ballpark project. It also takes the position that it was not possible at the time period that the closed sessions were held to include street addresses for parcel numbers, because the exact definition of the ballpark project had not yet been identified. The City Council claims that it used the most unique reference possible, i.e., a reference to a specific neighborhood with specific boundaries, in the agenda. It contends that since the safe harbor language of section 54954.5, subdivision (b) does not expressly require the City to identify topics that go beyond a purchase or sale transaction into related areas, such as transient occupancy taxes or environmental impact report mitigation requirements, then no such disclosures should be required before closed sessions may be held to discuss different aspects of a complex overall real estate based transaction.

As a matter of statutory interpretation, all these closed session rules must be read in conjunction with the more general rules in the Brown Act applicable to the conduct of public business. (See Rudd v. California Casualty Gen. Ins. Co., supra, 219 Cal.App.3d at p. 952.) For example, section 54954.2, subdivision (a), applicable to regular meetings, requires the legislative body to post an agenda containing a “brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” (Italics added.) It also provides that no action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of the legislative body or its staff may ask questions for clarifications or report on related activities, etc. (Ibid.)

An opinion of the Attorney General sheds some light on the sunshine law in this context. In 1990, the Attorney General was asked to comment on

This analysis leads us to conclude that the City Council’s argument is flawed. The City Council contends that simply because the ballpark project is a complex real estate-based transaction, many complex issues will inevitably arise, and it cannot be reasonably be foreseen when or where they will require discussion. The City Council says that since the safe harbor language of section 54954.5, subdivision (b) does not require the City to identify topics that go beyond a purchase or sale transaction into related areas, then it need not provide any such notice, even if such things will inevitably come up in discussion as part of the overall consideration of whether to purchase certain properties, as part of the overall redevelopment transaction. The City Council contends it is unreasonable to require notice to be given of such topics as transient occupancy taxes or environmental impact report mitigation requirements, even though such factors are often important considerations in the decision of whether to carry out such a purchase transaction of real property, and are reasonably related to the subject purchase decisions.

We believe the City Council’s view that no detailed disclosures should be required before closed sessions may be held to discuss a complex overall real estate based transaction is inconsistent with the express statutory requirements of section 54956.8 (real property which is the subject of the

We reject the City Council’s argument that the particular “item of business” specified in section 54954.2, subdivision (a) is not a particular purchase transaction of specified real property, but instead is the giving of instructions to a negotiator. The City takes the position that the safe harbor provisions of section 54954.5, subdivision (b) are a more specific section and therefore control over the general section, section 54954.2, subdivision (a). However, this is so specific as to be meaningless. A negotiator has to be pursuing some specific transaction, which itself is the subject item of business that should be disclosed. A negotiator does not negotiate in a vacuum.

Moreover, this argument by the City Council concerning the required scope of disclosure on posted agendas for closed sessions under section 54956.8 is inextricably intertwined with its other argument, that merely because of the complexity of the transaction, a “rule of reason” must be applied to enable it to discuss in closed session any and all related topics that may arise in conjunction with a purchase or sale decision, where that purchase or sale decision has only generally been identified to the public through the agenda procedure. We therefore turn to that argument to complete our reasoning process.

B

Scope of Discussions in Closed Sessions

As presented here, the issue is whether it is a reasonable construction of the Brown Act to prohibit the City Council from discussing topics in closed

In order to evaluate whether a proper scope of relief was afforded in this matter, we must focus upon the factual context and purpose of the closed sessions that were held here. In pertinent part, section 54956.8, provides: “Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. [¶] However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate. [¶] For purposes of this section, negotiators may be members of the legislative body of the local agency.”

This section accordingly authorized the City Council to hold a closed session with its negotiator, prior to the purchase or other transaction of real property, to the extent that the local agency wished to grant authority to its negotiator regarding the price and terms of payment for the purchase/ transaction. On its face, section 54956.8 appears to grant a rather narrow scope of authority to the City Council in conducting such business, to determine what discussions are germane to the particular transaction in real property.

Also, section 54957.7, subdivision (a) specifies that a legislative body in a properly noticed closed session may consider only those matters covered in its statement at an open meeting of the item or items to be discussed in closed session. Subdivision (b) of the same section states that after any closed session, the legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by section 54957.1 of action taken in the closed session (e.g., approval of an agreement concluding real estate negotiations, as dependent on the stage of the approval process).

To support its position, the City Council refers to the need for a confidential bargaining position when dealing with sophisticated buyers and sellers in a high profile project, in order to give adequate instructions to the negotiator acting for the city. (§ 54956.8.) In support, the City Council relies largely upon a concurring opinion of Justice Brown in Regents, supra, 20 Cal.4th 509 , suggesting that in the Brown Act context, the public need for access to information must be balanced against the public’s right to the efficient administration of public bodies. There is a perceived value of confidentiality in effective policy deliberations, and the courts must draw fine lines in order to promote these equally important values. (Id. at pp. 541-543.)

Even assuming such a balancing process is appropriate in this instance, when we compare, as did the trial court, the published agendas with the confidential minutes for the closed sessions, we can only conclude that such a balance should be struck in favor of public disclosure in this instance, in compliance with both the letter and the spirit of the Brown Act. As found by the trial court, the agenda items noticed related only to City negotiations with designated representatives from the Padres and the Port District regarding real property interests in the East Village area, or Qualcomm Stadium, or the Centre City East area. Under the plain language of section 54956.8, the City Council gave notice of its intent to hold a closed session with its negotiator, prior to the purchase or other transaction of real property, to the extent that the local agency wished to grant authority to its negotiator regarding the price and terms of payment for the purchase/transaction. Under section 54954.2, subdivision (a), members of the legislative body or its staff may ask questions for clarifications or report on related activities, etc. However, there is nothing in the statutory scheme that grants an unlimited scope of authority to the City Council, in conducting such business, to determine what discussions it may deem to be related background information that is essential to the particular transaction in real property, for purposes of giving instructions to a negotiator about that transaction.

In this case, the actual discussions in closed session extended to topics such as briefing on land acquisition matters, design work of architects, engineers, and infrastructure and parking developments. Also, such topics as

Rather, the closely related issues of the agenda items to be disclosed, including for a closed session, and the scope of the legislative body’s discussions that may take place within such specific closed sessions, must be considered together. The scope of the permissible discussion in the closed sessions should be defined by the notice given in the agenda and the public announcements, together with the rule against discussing items not identified in the agenda. (§§ 54954.2, subd. (a)(2), 54957.7, subd. (a).) Those statutory constraints must be read together with section 54956.8, which provides a narrowly defined exception to the rule of open meetings, for the purpose of giving instructions to the negotiators concerning a particularized and realistically anticipated transaction that the City may complete, whether as an individualized transaction or as part of a larger one. The City Council cannot claim substantial compliance under the safe harbor provisions of section 54954.5, subdivision (b), when its anticipated project discussions exceed the scope of the safe harbor notice provisions, and do not involve a specific and identifiable piece of property under discussion, but rather range far afield of a specific buying and selling decision that the negotiator is instructed to work toward.

If we were to accept the City’s interpretation of the Brown Act in this respect, we would be turning the Brown Act on its head, by narrowly construing the open meeting requirements and broadly construing the statutory exceptions to it. (See Bell v. Vista Unified School Dist., supra, 82 Cal.App.4th 672 , 682.) That would be incorrect. We do not denigrate the important consideration of confidentiality in negotiations. However, we believe that in this case, the City Council is attempting to use the Brown Act as a shield against public disclosure of its consideration of important public policy issues, of the type that are inevitably raised whenever such a large public redevelopment real estate based transaction is contemplated. The important policy considerations of the Brown Act, however, must be enforced, even where particular transactions do not fit neatly within its statutory categories. In this case, the trial court reached an appropriate balance in applying the Brown Act to this particular set of circumstances.

The judgment is affirmed. Costs are awarded to plaintiff and respondent.

Kremer, P. J., and Nares, J., concurred.