Update: September 10: The Council reported out of closed session that they decided the topics for discussion about the Sheriff service did not meet the criteria for a closed session, so they would have it at a future public meeting.
At the August 11, 2011 City Council Meeting, the Council agreed to discuss the recently slashed Sheriff services in closed session at the September meeting.
The Sheriff Budget was cut $175,000, which according to Councilmember Westerhoff, reduced in city patrols 5 hours per day.
The Agenda for the September 8th meeting includes a Closed Session item:
C.THREAT TO PUBLIC SERVICES OR FACILITIES Consultation with: Captain Michael Claus, Los Angeles County Sheriffs Department
The Brown Act governs what is allowed to be discussed behind closed doors and prefers open meetings.
On August 12th, the Whittier Daily News had an article about the proposed closed session. In the article City Manager Shauna Clark is quoted saying, "We were told by the sheriff's that (the cuts) are not something we should talk about in open session."
However the article also said, "Jim Ewert, general counsel for the California Newspaper Association, said Friday it wouldn't be legal for the City Council to discuss the sheriff's budget cuts in secret."
The Brown Act section in question, 54957a, reads:
"(a) Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions with the Attorney General, district attorney, agency counsel, sheriff, or chief of police, or their respective deputies, or a security consultant or a security operations manager, on matters posing a threat to the security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service, and electric service, or a threat to the public's right of access to public services or public facilities."
The clear language of the Act does not appear to allow discussion of public safety services or budgets, except where they might intersect with a threat to a public building, public services, or the public's right of access to those.
In 1978, the Attorney General's office wrote an opinion on the question of Brown Act exemption of ,
"does it permit the Board to go into executive session to hear reports from and issue instructions to the Chief of Police regarding the conduct of confidential police investigations, the deployment of police personnel, the utilization of particular police tactics, and similar matters, the public discussion of which would impair the ability of the police force to effectively carry out its duties?
The Attorney General concluded,
"The Ralph M. Brown Act would not permit the board to go into executive session to conduct its usual business with the chief of police. To sanction an executive session, it would be necessary to fall within one of the express provisions of the Act or be necessary to protect another confidentiality provision of the law such as those which specifically relate to certain public records," adding, "However, despite this conclusion, executive sessions of a limited nature could be sanctioned where necessary to maintain the confidentiality of confidential public records, or the confidentiality of matters which will later be memorialized in confidential public records."
The Opinion stated,
"[L]ong tradition preceding the Brown Act discloses a strong public policy against government conducted in secret and has led this office to conclude, as a matter of general policy, that doubtful cases should be resolved in favor of open and public meetings."
It ended with:
"In so concluding we note that the result reached herein may appear harsh. However, the question is whether the Legislature has authorized the board to conduct all its sensitive business with the chief of police in private. In our view it has not. (Cf. Bailey v. Superior Court (1977) 19 Cal.3d 970, 977.) Authority for executive sessions must therefore be found in the explicit terms of the Act, or implied from some other confidentiality provision such as that which attaches to confidential records."
In 2002 after the events of September 11, 2001, an Assembly Bill offered an Amendment to the Brown Act at the request of Water Districts adding additional language to the section.
It's purpose is described in the Legislative's Counsel Digest for the Bill as:
"Under the act, if certain information is disclosed in an open and public session prior to holding a closed session, the legislative body of a local agency may hold closed sessions with the Attorney General, district attorney, sheriff, or chief of police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the publics right of access to public services or public facilities.
This bill would also permit these closed sessions to include a security consultant or security operations manager.
This bill would also provide that the legislative body of a local agency may hold closed sessions with those law enforcement officials, agency counsel, or a security consultant or security operations manager on a threat to the safety and delivery of essential public services, including water, drinking water, wastewater treatment, natural gas service, and electric services."
The legislative history of the Bill and the Brown Act section indicate its purpose associated with actual or potential threats to public services or buildings.
A 2003 Brown Act Handbook written by the Attorney General's Office states, on page 30:
"In 61 Ops.Cal.Atty.Gen. 220, 226 (1978), we concluded that meetings of the Board of Police Commissioners could not, as a general proposition, be held in closed session, even though the matters to be discussed were sensitive and the commission considered their disclosure contrary to the public interest."
As reported about a Montebello City Council Meeting in November 2010 by the Pasadena Star News,
"Richard McKee, vice president of open government compliance for advocacy group Californians Aware, demanded on Wednesday the Council correct violations of the Ralph M. Brown Act, which regulates government transparency."
The paper reported his letter said,
"On October 27, November 10, and November 22, 2010, the Council agenda listed a Closed Session item:
THREAT TO PUBLIC SERVICES OR FACILITIES
(Pursuant to Government Code Section 54957)
Discussion with Acting Chief of Police
However, it is reported City officials have revealed that the actual discussions in these closed sessions have concerned reassignment of police personnel, the elimination of the crime suppression unit, and the reduction of expenditures such decisions could produce. Yet, 54957 does not authorize the closed session discussion of any of these items of business. Thus, these closed sessions violate 54953, 54954.2/54956, 54957, 54957.7, and 54962."
In response to a query, District Attorney Steve Cooley said on September 6th,
"To the extent that budget restrictions may have an impact on the Sheriff's ability to protect the City, then any discussion about threats to public safety arising from budget reductions may appropriately be considered in closed session."
However, there is no language in the Brown Act indicating an exemption for "threats to public safety".
The Brown Act exemptions are permissive, not mandatory.
Even if the discussion of threats to public safety was allowed in closed session, the City Council could decide to discuss it openly with the public that is affected.
Will the City Council and City Attorney offer an explanation of how cuts to Sheriff Services can be discussed behind closed doors?