74 Cal.App.4th 1231B, Kleitman v. Superior Court

• Decision Date: 18 August 1999
• Docket Number: No. H018276,H018276
• Citation: 74 Cal.App.4th 324,87 Cal.Rptr.2d 813
• Court: California Court of Appeals Court of Appeals
• Parties: B, 74 Cal.App.4th 324, 99 Cal. Daily Op. Serv. 6737, 1999 Daily Journal D.A.R. 8519, 1999 Daily Journal D.A.R. 8525, 1999 Daily Journal D.A.R. 8622 Joseph KLEITMAN, et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent; Gary B. Wesley, Real Party in Interest.

Page 813

87 Cal.Rptr.2d 813

74 Cal.App.4th 1231B, 74 Cal.App.4th 324,

99 Cal. Daily Op. Serv. 6737,

1999 Daily Journal D.A.R. 8519,

1999 Daily Journal D.A.R. 8525,

1999 Daily Journal D.A.R. 8622

Joseph KLEITMAN, et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent Gary B. Wesley, Real Party in Interest.

No. H018276.

Court of Appeal, Sixth District, California.

Aug. 18, 1999.

As Modified Sept. 9, 1999.

Olson, Hagel, Leidigh, Waters & Fishburn and N. Eugene Hill, George Waters, Sacramento; Michael D. Martello, C. Shelley Emerson, Jannie L. Quinn, for Petitioners.

No appearance for Respondent.

Melvin L. Emerich, San Jose, Gary B. Wesley, for Real Party in Interest.

ELIA, J.

I. INTRODUCTION

This original proceeding raises an issue of first impression under the Ralph M. Brown Act, Government Code section 54950 et seq. ¹ (hereafter, Brown Act or Act), concerning the right to discovery of the personal recollections of city council members as to proceedings which took place during an unrecorded closed session of city council. Petitioners are Joseph Kleitman and other members of the City Council of the City of Mountain View, who seek a writ of mandate directing respondent court to vacate its order compelling them to answer five special interrogatories regarding their personal recollections of an unrecorded closed session held by the City Council with respect to the negotiation of a lease of city property. ² Petitioners contend that the trial court erred because the order requires them to disclose the confidential proceedings of a closed session.

Real party in interest Gary B. Wesley is a resident of Mountain View who brought the underlying action against the City Council members, alleging that the closed session violated the Brown Act because the members discussed city property not properly identified by the closed session agenda item description. Wesley contends that these illegal discussions were not confidential under the Brown Act, and, therefore, discovery into the recollections of the City Council members regarding the unlawful closed session is proper.

However, the Brown Act does not provide for disclosure of the personal recollections of members of a legislative body with regard to the proceedings held in an unrecorded closed session. Instead, the Act provides only for the in camera review of minute books and the disclosure of the tape recordings of a closed session under certain specific circumstances. Accordingly, we find that the trial court cannot compel disclosure of the personal recollections of city council members with respect to a closed session, without improperly reading into the Act a discovery procedure which would violate the confidentiality of closed sessions which is inherent in the Act. We therefore issue a peremptory writ of mandate directing respondent court to vacate its order, and to enter a new and different order denying the motion to compel answers to interrogatories.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Closed Session Regarding the Lease of City Property

The Mountain View Chamber of Commerce (hereafter, Chamber of Commerce) leases the site for its office building from the City of Mountain View (hereafter, City). In 1997, the Chamber of Commerce leased a city owned site in Pioneer Park. However, the Chamber of Commerce was considering a move to a different site in Pioneer Park, and consulted with City staff in that regard. On March 25, 1997, the City Council of the City of Mountain View (hereafter, City Council) held a regularly noticed city council meeting which included a closed session with two agenda items. One of the closed session agenda items concerned renewal of the Chamber of Commerce lease. The agenda item read as follows:

"Conference with Real Property Negotiator (§ 54956.8)

Property: Chamber of Commerce

Negotiating Parties: City of Mountain View and Chamber of Commerce

Under Negotiation: Lease Terms" City Council took no action during the closed session with respect to the Chamber of Commerce lease. The closed session was not tape recorded and no minutes were taken.

Subsequently, City continued to negotiate renewal of the Chamber of Commerce's lease. The negotiations included the possibility that City would lease property outside Pioneer Park to the Chamber of Commerce. In July 1997 the City Council conducted an open workshop study session regarding the site leased to the Chamber of Commerce. During that session, the City Council considered and rejected a proposal by the Chamber of Commerce that City lease a different site with Pioneer Park.

B. The Brown Act Litigation Regarding the Closed Session

Gary B. Wesley (hereafter, Wesley) is a resident of the City of Mountain View, who contends that the City Council's closed session of March 25, 1997, was illegal. Wesley filed a complaint in respondent court which named the seven individual members of City Council as defendants, and sought declaratory and injunctive relief for violations of the Brown Act. In his first amended complaint, Wesley alleges three Brown Act violations occurred during the closed session held March 25, 1997. First, Wesley alleges that the agenda item descriptions for the closed session did not comply with Brown Act requirements, because the description regarding the conference with real property negotiator did not disclose that the City Council planned to discuss an alternate site in Pioneer Park not currently leased by the Chamber of Commerce. Second, Wesley alleges that the closed session was illegal under the Brown Act because City had not made a previous public policy determination to amend or exchange the existing Chamber of Commerce lease.

Third, Wesley alleges that correspondence he received from the City Attorney indicates that the City Council intends to continue violating the Brown Act with regard to real property lease negotiations. Wesley attached to his complaint the City Attorney's letter of September 4, 1997, in which the City Attorney denied that any violations of the Brown Act had occurred with respect to the City Council's meetings concerning the Chamber of Commerce lease. The letter states, in pertinent part, "One of the key purposes of Section 54956.8 of the Brown Act is to 'grant authority to its negotiator....' The closed session of July 15th [sic] was entirely consistent with that purpose."

C. Wesley's Motion to Compel Interrogatory Answers

Wesley initiated discovery in his Brown Act lawsuit against the City Council members. He served sixteen special interrogatories upon each council member defendant inquiring in detail about the March 25, 1997, closed session and related matters. The council members' responses included objections to answering interrogatory numbers one through six. These interrogatories state, "1. With regard to the March 25, 1997, closed session meeting of the Mountain View City Council, what is the full name of each person who attended all (or any part) of the session? [p] 2. At the March 25, 1997, closed session meeting of the Mountain View City Council, was there any discussion of any of the lease terms of the then-existing ground lease between the City of Mountain View and the Mountain View Chamber of Commerce? [p] 3. At the March 25, 1997, closed session meeting of the Mountain View City Council, was there any discussion of leasing to the Mountain View Chamber of Commerce a portion of Pioneer Park not currently leased to the Mountain View Chamber of Commerce? [p] 4. Fully describe, or attach a copy of, each document you ever received in connection with the idea and/or proposal that the Mountain View Chamber of Commerce would lease any portion of Pioneer Park not currently leased to the Mountain View Chamber of Commerce. [p] 5. Set forth everything that was said at the March 25, 1997, closed session meeting of the Mountain View City Council with regard to the Chamber of Commerce's existing lease. [p] 6. Set forth everything that was said at the March 25, 1997, closed session meeting of the Mountain View City Council with regard to entering into a lease for property in Pioneer Park not covered by the Mountain View Chamber of Commerce's existing lease."

The grounds for the City Council members' objections to interrogatory numbers one through six were that (1) the answers were privileged as official information, pursuant to Evidence Code section 1040; (2) the interrogatories sought information expressly protected by the Brown Act, section 54956.8, because the information concerned a closed session held for the purpose of giving instructions to a real property negotiator; and (3) disclosure would be against the public interest, because the public interest in confidentiality of the information outweighs the public interest in disclosure. The City Council members' response to interrogatory number four included the additional objection that the documents for which Wesley sought a description had already been produced to him.

Wesley then filed a motion to compel answers to interrogatory numbers one through six. He argued that no privilege protected the closed session information, because the official information privilege of Evidence Code section 1040 applies only to public employees, not to elected city council members. Even if such a privilege exists, Wesley asserted, the city council members waived the privilege by later disclosing a July 1997 staff report regarding the Chamber of Commerce's proposal for a different site in Pioneer Park. Wesley also argued that there is no authority, other than nonbinding opinions of the California Attorney General, for the proposition that it is improper for a city council member to disclose what was said in closed session meeting of city council.

The City Council defendants filed points and authorities in opposition to Wesley's motion to compel interrogatory responses. They argued that they are unable to disclose information obtained at a closed session because (1) Evidence...