July 24, 2014
Final Reports
San Mateo Courts - Civil Grand Jury

2000 Final Report:

LAGUNA SALADA UNION SCHOOL -
DISTRICT COUNTY COUNSEL ADVICE
REGARDING RALPH M. BROWN ACT

Summary | Background | Findings | Recommendations | Responses

Summary:

On October 11, 2000, the Laguna Salada Union School District (LSUSD) Board of Trustees held a closed session to consider a waiver of attorney-client privilege by the board for a scheduled meeting of their attorney, a deputy county counsel, with members of the grand jury. The deputy county counsel recommended the closed session after conferring with county counsel who also serves as legal advisor to the grand jury. In meeting with members of the grand jury, the county counsel stated that a closed session to discuss a possible waiver of the attorney-client privilege was appropriate and not in violation of the Brown Act based upon his knowledge, his interpretation of the act, and his consultation with other attorneys. He also stated that the limited notice of the closed session on the agenda and the failure to report the action taken in the closed session during the public meeting were not violations of the Brown Act.

The grand jury concludes that the written and published intent of the Brown Act, as well as the individual sections of it, strongly provides that all business except that specifically excluded shall be conducted openly. The grand jury sought an independent opinion of this interpretation of the Brown Act from the Legislative Counsel of California. He concurred with the grand jury's conclusion that county counsel incorrectly advised the board of trustees of the LSUSD to meet in closed rather than open session and that public noticing of the closed meeting did not conform to the Brown Act provisions.

The grand jury also finds that the county counsel in serving two clients regarding the same issue has an inescapable conflict of interest and that his actions most reasonably can be interpreted to favor secrecy rather than openness.

The county counsel's charge is to educate and inform LSUSD boards to the requirements and guidelines of conducting open and closed meetings. The grand jury recommends that the county counsel renew his efforts and those of his staff to properly advise the LSUSD that all business be conducted in the open, as required by the Brown Act. The grand jury also recommends that the San Mateo County Board of Supervisors continue to provide annual funding solely for the purpose of obtaining separate counsel when it is investigating an entity or district represented by county counsel.

Background:

Prior to October 11, 2000, members of the 2000-2001 grand jury were investigating procedures and conduct of the Laguna Salada School District School (LSUSD) Board of Trustees including whether all aspects of its business were being carried on openly and in compliance with the Brown Act. In the course of an investigation, statements were taken from the board members and deputy county counsel. This request presented the question of whether the board members should waive the possible attorney-client privilege of the board relative to confidential discussions board members may have had with the deputy county counsel. The LSUSD held a closed session on October 11, 2000, to discuss this waiver. The agenda presented notice of the closed session with only the words "Conference with Legal Counsel."

When meeting with the grand jury, the deputy county counsel advised that prior to the closed session he had conferred with and was advised by county counsel that such a closed session was not in violation of the Brown Act. County counsel serves as legal advisor to the grand jury. In meeting with members of the grand jury, he stated that a closed session to discuss a possible waiver of the attorney-client privilege was appropriate and not in violation of the Brown Act based upon his knowledge, his interpretation of the act, and his consultation with other attorneys. He also stated that the limited notice of the closed session on the agenda as described above and the failure to report the action taken in the closed session during the public meeting were not violations of the Brown Act.

The grand jury believes that the provisions of the Brown Act do not authorize a closed session for this purpose. Since the grand jury does not have its own independent counsel, it requested through Assemblyman Louis J. Papan a legal opinion from the Legislative Counsel of California. (A copy of that legal opinion dated December 8, 2000, may be obtained from the grand jury by calling 650.599.1711). It states (p. 8) that, "Accordingly, we conclude that the notice for the closed session, as described in the Facts, does not comply with the Brown Act." The opinion states (p. 5) that §54956.9 of the Government Code (Brown Act) provides: "…all expressions of lawyer-client privilege other than those provided in this section are hereby abrogated." The legal opinion emphasizes that this §54956.9 takes precedence over the traditional law of lawyer-client privilege in determining whether a closed session is permissible. The opinion holds (pp. 11-12) that,

Moreover, no provision of the Brown Act authorizes a closed session specifically to address matters related to a pending grand jury proceeding. Although it is the case that grand jury proceedings sometimes may be conducted in secrecy, and that individuals testifying before a grand jury are prohibited from disclosing evidence adduced before a grand jury, unless ordered to make that disclosure…, the confidentiality of the grand jury proceeding does not extend to require closed sessions that would otherwise be required to be held in open session under the Brown Act.

In his interview with members of the grand jury, county counsel stated that, when a member of his office is advising the school district, discussing a possible waiver of the attorney-client privilege in open session would violate the secrecy to which grand jury investigations are entitled. In so doing, he claimed he was giving advice to one client (the school district) which was beneficial to another client (the grand jury).

In the situation described above, as in others the grand jury has experienced, county counsel was serving two clients; i.e., the grand jury and the LSUSD, concerning the grand jury's investigation of the LSUSD.

Additionally, in his interview with members of the grand jury, county counsel said the situation was equivalent to "pending litigation" as that phrase is used in the Brown Act because, if the deputy county counsel did not respond voluntarily to the request of the grand jury to be interviewed, he would have been subpoenaed, and then county counsel could have moved to have a court quash the subpoena. County counsel stated that this series of events, had they occurred, would have been "litigation" or "pending litigation." In this situation a closed session is, however, not permissible under the "pending litigation" exception as described in the Brown Act according to legislative counsel (pp. 3-7).

Findings:

The grand jury finds that county counsel erroneously and contrary to the very specific provisions of the Brown Act advised the Board of Trustees of the LSUSD to do the following:

  • Convene in closed session rather than open session on October 11, 2000, to consider whether or not to waive the attorney-client privilege of the board for the scheduled meeting of deputy county counsel with members of the grand jury.
  • Prepare an agenda noticing the closed meeting in a manner that did not advise the public of the general subject or reason for the closed meeting. This is contrary to the very specific provisions of the Brown Act (Government Code §54956.9) that illustrate and direct the only form in which the notice can be presented.

The grand jury also finds that San Mateo county counsel in serving two clients regarding the same issue has an inescapable conflict of interest and that his actions most reasonably can be interpreted to favor secrecy rather than openness.

It appears to members of the grand jury that county counsel was confronted with two conflicting areas of law: the attorney-client privilege governed by the California Evidence Code and the California Government Code as it appears in the Brown Act. The provisions of the Brown Act specifically provide that they are to be narrowly and strictly construed. The grand jury concludes that, because the written and published intent of the Brown Act, as well as the individual sections of it, so strongly provide that all business except that specifically excluded shall be conducted openly, county counsel should have advised the LSUSD board to discuss the subject of waiver in open session in a way that would not reveal confidential interviews or information.

Regarding advice given to the LSUSD board of trustees dealing with the content of the notice on the October 11, 2000, agenda closed session, county counsel gave erroneous advice that is contrary to existing law of the Brown Act in the California Government Code as that law is interpreted by legislative counsel. The notice of closed session should have contained descriptive language such as "Conference with Legal Counsel - Waiver of Attorney-Client Privilege."

The grand jury notes that the specific provisions of the Brown Act command openness in the proceedings of public bodies and that the printed spirit of the Act states, "It is the intent of the law that …actions be taken openly and that…deliberations be conducted openly…." This printed spirit further states, "The people insist on remaining informed…" concerning what is good and not good for them.

Recommendations:


Recommendation 4.1

County counsel should renew his efforts and those of his staff to advise the Laguna Salada Union School District Board of Trustees that all business be conducted in the open unless such business is excluded by a specific provision of the Brown Act.

Recommendation 4.2

County counsel and the Laguna Salada Board of Trustees shall in the future properly place on the agenda or publicly announce the subdivision of Government Code §54956.9 authorizing closed sessions of the board of trustees and make a public announcement of the action taken in closed session pursuant to Government Code §54957.1.

Recommendation 4.3

County counsel should recuse himself and his staff from serving each of the parties in a situation where an issue between them occurs when his office is or has been counsel for the parties.

Recommendation 4.4

The San Mateo County Board of Supervisors should continue to provide adequate annual funding to the grand jury solely for the purpose of obtaining separate counsel when it is investigating an entity or district represented by county counsel.

Response from the Laguna Salada Union School District

Re: Grand Jury Findings and Recommendations

The Brown Act was first enacted in 1961. Since that time, for the past forty years, the District has sought and received sound legal advice from the County Counsel's office in interpreting and advising on the Brown Act. This case is no different. The County Counsel's office advised the Board of Trustees on the meeting requirements and the Board followed the advice. The Board supports the position of County Counsel in this matter and will continue to seek, support and follow the legal advice provided by County Counsel on Brown Act matters, as it has for the past forty years. Since the Grand Jury findings are based on legal conclusions that are the subject of substantial legal debate among lawyers, we will defer to the separate explanation provided by County Counsel's office.

Furthermore, as to the four recommendations outlined in the Grand Jury Report, only one (Recommendation 4.2) applies to the District. Since the Board of Trustees always follow the Brown Act and will continue to do so, Recommendation 4.2 will be implemented.

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Response from County Counsel

Re: 2000-2001 San Mateo County Grand Jury - Laguna Salada Union School District County Counsel Advice Regarding Ralph M. Brown Act

A. Response to Findings

The County Counsel's Office respectfully disagrees with all of the Grand Jury's findings in this report.

1. First Finding (Meeting in Closed Session)

The Grand Jury's finding that the District, instead of meeting in closed session to discuss whether or not to waive the attorney-client privilege, should have met "in open session in a way that would not reveal confidential interviews or information" is, in the final analysis, not legally required and not workable. Additionally, such a discussion in open session is impractical and full of ethical pitfalls.

In summary, when the Grand Jury requested to meet with the District's lawyer as part of its investigation of the District, it did so without identifying the subject matter of what would be discussed with the lawyer. Consequently, the District was left guessing as to what the Grand Jury might ask its lawyer. The Grand Jury, who has no particular interest in the attorney-client relationship between the District and its lawyer, could inquire into anything, including matters of advice the lawyer gave in confidence to the district in closed session. Indeed, it is reasonably foreseeable that the Grand Jury would in fact spend most of its time asking the District's lawyer to discuss advice it gave to the District, since the lawyer's exclusive role with the District is to provide advice, all of which is attorney-client privileged. Knowing this, the lawyer cannot just sit down with the Grand Jury and discuss advice it gave to the District. If the lawyer did this, the lawyer would violate the attorney-client privilege, which could lead to the lawyer being sanctioned by the State Bar. As a matter of law, the only way the lawyer could speak with the Grand Jury is either by court order, or if the client-District took action to waive the attorney-client privilege.

Therefore, when faced with the Grand Jury's request to meet with its lawyer, the District had three options: (1) ignore the Grand jury request thus necessitating the Grand Jury to obtain a court order, (2) hold an open session to discuss waiving the attorney-client privilege, or (3) hold a closed session to discuss waiving the attorney-client privilege. Each option is discussed below.

The first option--ignoring the Grand Jury's request and thereby forcing that body to subpoena the District' lawyer, causing the district to file a motion to quash the subpoena, and thereby further forcing the Grand Jury to obtain a court order authorizing them to speak with the lawyer-- would have been a highly litigious and unnecessary avenue. In addition, the District had to consider the negative publicity of the media reporting that the District was subpoenaed to testify because they refused to cooperate with the Grand Jury.

The more difficult and legally complex choice was to decide between the second and third options, to discuss a waiver in open versus closed session. Ultimately, our advice to the District to meet in closed session to act on whether to waive the attorney-client privilege so that their attorney could meet with the Grand Jury was communicated only after a great deal of discussion both in and outside the office. Specifically, this was a well-thought out recommendation to the school board that was made after hours of legal research on the Brown Act and the Attorney-Client Privilege, followed by a lengthy meeting between five lawyers in the County Counsel's office who got together to review and discuss the matter, followed by a discussion with James Fox, the San Mateo County District Attorney, who agreed with the County Counsel's legal interpretation and recommendation. Only after this comprehensive process, was the recommendation made to the school board that it was permissible to meet in closed session.

The interpretation of statutes is an ongoing and difficult process that requires a decision based on an analysis of the facts and law. Lawyers don't always agree on interpretations, and this is why there are thousands upon thousands of cases every year involving lawyers on both sides of a case arguing different interpretations of statutes to judges. In fact, even judges disagree on interpretations, and this is why it is necessary to have higher courts to resolve differing legal interpretations by lower court judges. Based on the facts and law of this particular legal question, we came to the conclusion that meeting in closed session was permissible. The Office of the Legislative Counsel came to a different conclusion, but they did so based, in part, on a misunderstanding of the facts. The Legislative Counsel was misinformed that the County Counsel's Office recommendation for closed session was based on the "pending litigation" exception to the open meeting requirements. This was not the case. In addition, the Legislative Counsel wrote an extremely mechanical, overly simplistic opinion that offered no recognition of the complex legal issue presented, or any suggestion for how they would approach the very real legal problem at issue. The County Counsel's Office, on the other hand, was representing a real client with a real legal dilemma that needed a real and immediate solution.

Indeed, there are many public body meeting issues that are not specifically covered under the Brown Act. In some cases, such as the instant case, the legislature simply never anticipated the question. With respect to school boards as public bodies, for example, it is axiomatic that when a school board holds an expulsion hearing, such hearing is held in closed session, in order to protect the privacy of the minor pupil. Under those circumstances, it is not the Brown Act that authorizes the closed session, it is the Education Code. Likewise, when a school board meets to consider an interdistrict transfer, the meeting with the minor and the minor's parents is held in closed session. The authority is held in state and federal student privacy laws, not in any permissible closed session exemption under the Brown Act. Likewise, when a school board needs to meet with its lawyer to determine if the Board should waive the attorney-client privilege, it is necessary that this meeting take place in closed session.

As the attorney for the school district, any communications between the school board and the County Counsel's Office are protected by the attorney-client privilege. In order for the County Counsel's Office to communicate the subject matter of an attorney-client privileged communication to a third party, including the Grand Jury, it must obtain a waiver from the client, who is the holder of the privilege. It takes a simple majority of the school board (three members) to act to waive the privilege. If a public body meets in open public session to discuss whether or not it should waive the privilege, it runs the risk of, in fact, waiving the privilege by discussing the matter publicly. This is because, pursuant to the Evidence Code, any voluntary or inadvertent disclosure of a significant part of a communication to a third party (e.g. the public) waives the privilege. How does the school board have a candid, well-informed, well-considered, comprehensive discussion of whether to waive the attorney-client privilege, in whole or in part, in open session without making inadvertent disclosures that both waives the privilege and exposes the district to potential liability for revealing matters of privacy? As a practical matter, how would the District execute the Grand Jury's suggestion that the waiver discussion be held "in open session in a way that would not reveal confidential interviews or information?" If the sole purpose in meeting is to consider whether to waive confidential communications, how can the Board have a public conversation about what particular confidential communications they are willing to waive, when the communications are confidential. They can't.

For this reason, it would potentially be legal malpractice to advise a board to discuss their decision to waive an attorney-client privilege publicly. This is why the second option was not recommended. The only alternative was to meet in closed session. Indeed, meeting in closed session under these circumstances does not violate the spirit of the Brown Act, which is that the public's business is to be conducted publicly. Here, what was being discussed by Board members is not, by definition, public business since the discussion is limited only to whether or not the Board should waive previous communications between the lawyer and the school board, none of which were public in the first place!

Moreover, pursuant to state law, the Grand Jury process itself is supposed to be secret. The legislature has determined that the public does not have a right to know what a grand jury is investigating or that it has called certain witnesses to testify in the investigation. If the meeting were held publicly, the public would be made aware of the Grand Jury investigation and the witnesses they are seeking to speak with (in this case, the attorney), thus violating the intent of the legislature and compromising the secrecy of the Grand Jury process.

The fact of that matter is, if the Grand Jury report were correct, then no public lawyer could ever meet with their public body client to obtain a waiver of the attorney-client privilege, unless there was anticipated or pending litigation. Certainly, the legislature never intended such a result. The County Counsel's Office gave a practical solution to a practical legal problem that complies with Attorney-Client Privilege law, Grand Jury law, and the Brown Act. Consequently, we respectfully submit that the Grand Jury report was misguided and legally incorrect.

2. Second Finding (Notice Requirements)

The County Counsel's Office also respectfully disagrees with the second finding, that the notice of the closed session was improper because "the Brown Act (Government Code 54956.9)... directs the only form in which the notice can be presented." This is legally incorrect.

The Brown Act specifically states:

54954.5 Safe Harbor agenda for closed sessions "For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format."

What this means is that as long as an agency lists closed sessions on the agenda in the precise model format suggested by the Brown Act, the agency is in a "safe harbor" and is per se in substantial compliance with the statute. This is also to say that an agency is authorized to deviate from the safe harbor language when the agency, in its discretion, deems it appropriate. The Grand Jury's finding that the notice of the closed session should had included the additional words "Waiver of Attorney-Client Privilege" is merely one opinion of one approach to the listing, it is not a legal requirement.

3. Third Finding (Alleged Conflict of Interest)

The Grand Jury's third finding is that the County Counsel cannot serve two clients, the District and the Grand Jury, simultaneously as this creates "an inescapable conflict of interest and that his actions most reasonably can be interpreted to favor secrecy rather than openness."

The County Counsel's Office also respectfully disagrees with this finding. First, there was no conflict of interest. There was no adversarial relationship. Just because the County Counsel is a legal advisor to the Grand Jury who is investigating another client of the County Counsel does not ipso facto mean that the County Counsel has a conflict of interest.

Since the Grand Jury's statutory function is to investigate the operation of local government, it is quite often the case that the Grand Jury is investigating a client of the County Counsel, since the County Counsel represents all of the County agencies and commissions, many special districts and the school districts. It is not uncommon for Grand Jury's to allege that the County Counsel has an inherent conflict in representing both the Grand Jury and a client the Grand Jury is investigating. This is not a conflict. In fact, the legislature has specifically designated the county counsel as one of the legal advisors to the Grand Jury. See Penal Code section 934. If the Legislature was concerned about this "conflict" they would not have made the County Counsel the advisor to the County and the Grand Jury simultaneously. As it stands, on all Grand Jury matters, the County Counsel maintains an ethical wall of secrecy between the Grand Jury and any client the Grand Jury might be investigating. If an actual conflict of interest arose, the County Counsel would raise the conflict and recommend the retention of independent counsel.

The claim that the County Counsel's office "favors secrecy rather than openness" is unjustified. The County Counsel's Office is constantly advising and training its clients on the importance of the Brown Act and particularly the fundamental public principle that the public's business be conducted in public. The County Counsel's Office has represented the Laguna Salada Union School District since the Brown Act was first enacted in 1961. To this office's memory, this is the first time in over 40 years of providing legal advice to the District on the Brown Act that the Office's advice has been called into question— and even on this one occasion, there is a fundamental disagreement in interpreting the law and applying it to a complex and unusual factual circumstance.

B. Response to Recommendations

1. Recommendation 4.1

The County Counsel's Office always uses its best efforts to advise its clients as to the legal requirements of the Brown Act, and will continue to make every effort to ensure that its client follows the law.

2. Recommendation 4.2

The County Counsel's Office agrees that the Laguna Salada Board of Trustees should comply with the Brown Act, but disagrees to the extent the Grand Jury is implying that the Board has not followed the Brown Act in the past.

3. Recommendation 4.3

The County Counsel's Office agrees that it should recuse itself when appropriate. The Office is uniquely aware of conflict of interest law and recusal requirements and will certainly avail itself of the recusal process if and when the circumstances justify such an action.

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