wigim, LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE "Rs", BUREAU OF FRAUD AND CORRUPTION PROSECUTIONS PUBLIC INTEGRITY DIVISION STEVE COOLEY « Dist: IAGQUEL"N LACEY » Chi PATRICK, DIXON» Besl Ditror Aue January 24, 2011 ‘The Honorable Members of the Los Angstas County Board of Supervisors Hall of Administration 600 West Temple Street Los Angeles, Galfomia 90012 ‘Subject: Allegation of Brawn Act Violations by the Los Angeles County Board of Supervisors PID Case 11-0829, Dear Board Members: ‘The Public Integrity Division recefved @ complaint alleging that the Los Angeles County Board of Supervisors ("tha Board") violated the Brown Act when it met with a number of pubic offciala from state and local agencies, including the Governor of the State of California, in closed session on Septernber 26, 2011, to canduct a “conference regarding potential threats to public services or facilites" arising from tha impact of AB 109, legislation that is commonly referred to as “realignment” of the criminal sentencing and corrections system in California. We have concluded our inquiry, which involved review of a recording of the closed session conference that was made available to this office for the sole purpose of this review by county counsel, along with documentary evidence and the applicable law. Qur analysis and findings are set forth below. FACTUAL BACKGROUND ‘An agenda was posted on September 23, 2011, for a special meeting to be held on Monday. September 26, 2011, at 2:00 p.m. It provided NOTICE OF CLO’ CS-1. CONFERENCE REGARDING. SERVICES OR FACILITIES (Subdivision (a) Government Code Section 54957) Consultation with the Sherif, Chief Probation Officer, Department of Mental Health, Secratary of California Department of Corrections and Rehabilitation, and the Secretary of Calfomia Health and Human Servicos Agency, or their respective depulies, and other appropriate and necessary County and State atticials. on matters posing a potential thraat fo the public's right of access to public services or public facilities to the impact Of AB 109. (11-4498). SESSION TENTIAL THREATS TO PUBLIC 766 Hal af Records 20 Waet Temple Stet Loe Angele, CA 90012 (213) 24-6601 Fox: (215) 520-9688 lation of Brown Act Violaors bythe Loa Angeles Comty Hear of Superisrs PID Case 11-3828 Dunsry 34,2012, Page 2 até ‘The information reviewed demonstrates that the meeting was atlended by a ‘number of persons, incuding the Governor, the Honorable Jerry Brown. The ‘meeting was also publicized an the Governor's website: 9-26-2011 LOS ANGELES — Govemor Edmund G. Brown ur. today wil meet with Armenian Presidert Serzh Sargsyan ata luncheon hosted by Los Angeles City Gouncimember Paul Krckorian and will later meet wath the Los Angeles County Board of Supervisors ta discuss realignment and other issues impacting the county. Lunch with Armenian President ‘When: Today, Monday, September 26, 2011 at 12:80 p.m. ‘Whore: Les Angeles City Hall, 200 N. Spring St., Los Angeles, CA 90012 Maating with L.A: County Board of Supervisors ‘When: Today, Monday, September 26, 2011 at 2:00 p.m. ‘Where: Kenneth Hahn Hell of Administration, 600 W. Temple St., Los ‘Angales, CA S0012 NOTE: These meetings arc clased ta the press. ‘The information appearing on the Governor's website indicating that tha “meatings are closed ta the press’ is consistent with the official posting of the aganda item for the Board af Supervisors meeting in clased session on the subject of AB109, and the same date, place and time are identified On the date and time posted, the Board of Supervisors met with a variety of other government officials, including the Gavernar and other representatives from state agencies, In closed session. The general topic of discussion was realignment ANALYSIS. ‘The Los Angeles County Board of Supervisors is a legislative body as defined by Government Code Section 54962, All meotings of the legislative body of a local agency shall be open and public, and all persons shall be permitied to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter, Goverment Gode Section 54853. No closed session may be held by any legislative body of any local agency excapt as expressly authorized by the Brown Act or other statutory exceptions listed in Government Code Sectian 54982. Because the closed session exceptions limit the public's right of acess, the legal authority must be narrowly construed. See Shapiro v. San Diego City Council, 96 Cal.App.4th 904, 917, sae also Cal Const. art, section 3¢b}{2) Anepsigto Brown Act Violations bythe Fos Angels County Bord of Supervisors PID Case 11-0629 onary 24,2012 Page? of Govemmant Goda Section 54957 permits closed sessions with the Attomey General, district attorney, agency counsel, shelf, or chief of palice. or their respective deputies, of @ security consultant or a security operations manager, on matters posing a threat to the securty of public buildings, a threat to the securfly of essential public servicas, including water, drinking water, wastewater treatment, natural gas service, and electric sorvioa, or a threat to the public's right of access to public services or public facilites. In an opinion dated May 4. 1978, the Attorney General considered whether @ Board of Police Commissioners was permitted to meet in closed session to hear renorts from and ue instructions to the chief of police regarding the vonduct af confcential police investigations, the deployment of police personnel, the utlization of particular police tactios and similar matters, the public discussion of which would impair the ablity of the police force to effectively carry out its duties. in short, “the question is whether the Legistature has authorized the Board to conduct al its ‘sensitive’ business wilh the chief of pofioe in private, In our view, it has nal. Authority for executive session must therefore be found in the explicit terms of the Act, or impliad from some other confidentiality provision such as that which attaches to confidential records, Insofar ae this may be deemed an inadequate solution, the problem appears to be one for legislative resolution.” 64 Ops, Cat Atty.Gen, 220 (1978). A review of the legislative history of the Brown Act demonstrates the consistent intent of the legislature to permit closed session consideration by local legislative badies for recognized areas of privilege, such as the attorney-client privifege, real estale and labor negotiations, employee privacy rights, and matters related to the protection of critical public services and infrastructure, like water and electrical services, as well as public buildings and employees, from sacurity threats like riats, violent protests, of terrorist attacks. Notably, the Legistatura has never revised the law ta permit closed session consideration of ‘sensitive business” as discussed in the 1978 aninion of the Attamey General cited above. Rather, the Legistature has consistently adhered to narrow definitions of permissible closed session exceptions of the Brown Act, provided suggested language for purposes of ensuring sufficient pubfic notice of such matters, ‘and articulated the process by which public comment on such matters and public disclosure of actian taken in closed session must be accomplished, ‘Section 54957 of the Brown Act was amended in 19714 ($B 833) to authorize local legislative bodies to hold executive sessions with the Attomay General, district attorney, shariff or police chief or their respective deputies on matters posing a threat to the public's ight of access to public services oF public faciltles. Sponsors of the bill argued that high security trials, bombings af public buildings, and potentially violent mass protests all require planning far the protection of the public and public employeas, The Impetus for the amandment was the threat of violence facing the public and public employees from riots, violent protests, bombings, and other dangarous activities that, ‘marked the early part of the 1970's, particutarly in Alameda County, Allgatnn of Brown Act Volts by he Los Angles City Beard of Supeevians Pip ease 11-0500 Jarry 24,2012 Page or In 1993, legislation that significantly expanded the Brown Act closed session language was adopted (487426), which specifically articulated the exceptions for closed session ‘consideration previcusty established by the appellate courts regarding matters within existing, recognized tegal privileges (Government Cade Section 54986.9, 54957), and uwihich provided the “safe harbors” fanguage by which such matters should be agandized (Goverament Code Section 649545) ‘Section 84957 was amended In 2001, to pemmit a security consultant or security operations managar in closed session regarding a threat to the safety and delivery of essential public services, including water, drinking waler, wastewater treatment, natural {gas service, and electrical services. The expansion of this section came in response to the events on September 11, 2001. In his signing message, Governar Davis slated: “Lam signing Assembly Bill 2645, which expands the scope of closed ‘meetings for local government agencies under the Ralph M, Brown Act, to include matters involving the security of water and electricity infrastructure and services. In the wake of the terrorist attacks on September 11, 2001 greater Confidentiality for focal and state public meetings is warranted when issues cf public safety are being discussed. Though ! am signing this bif, | am concerned that state agencies cannot mest In closed session to address security issues relating to the state's critical infrastructure. Tharefore, | am directing the State and Consumer Services Agency, In consuttation with the Office af Emergency Services, to work with the Legislature on legislation that would permit all public entities to meet in closed session ‘when discussing certain security Issues that, if revealed, would ‘compromise public safety and the state's critical infrastructure.” Governor Davis's comments illustrate the true Intent of the legislature, not to provide closed session sanctuary for discussions of "sensitive business’, but rather to ensure, that public agencies, both local and state, have the ability fo adequately and securely prepare for impending threats to crilical infrastructure components and to the safely of the public Despite repeated amendments, many in response to appellate decisions upholding ‘closed session meetings on matters involving established areas of privilege like attorney-client discussions, and employee privacy rights, the Legislature has never ‘taken action to permit closed session consideration of “sensitive business" as discussed In the 1978 opinion of the Atarney General cited above. Rather, the legislature has consistently adopted statutory language that defines clased session exceptions of the Brown Act for recognized areas of privilege and matters of public necessity, like threats {o citical pubic services and public facilties. _Aisgatoa of Bown Act Volaons by the Le Aageles County Board of Ssperiors Pip ear 110625 Jarry 24,2012 Page Sor Itis indisputable that AB109, which mandates realignment of the eriminal justice system, is a matter of significant concem al the state and local level. There is no evidence that concems about implementation of AB109 included threats of rots, violent outbursts, terrorist activities, or other threats fo the security of public buildings, essential Public services, or the public's right of access to services or facilities. Realignment doos ot pose a threat to essential public services like the water upply, elactrical services, or accass to public buildings, nor has there been any indicia of any anticipated oil Uprising of violent pratest related to ABL109 that threatens publie sefety, public cemplayeas or public facilities By letter dated November 22, 2011, to Stove Cooley, District attorey, the office af ounty Counsel explained, on page 3, that the meeting in question was needed because "October 1 was quickly approaching and the inaclequate actions by the state in both describing the AB 109 population and in providing funcing for that population constituted a potential threat to the public's access to public services and facilities, which needed to be frankly discussad outside af a public meeting.” (Emphasis added). Na one can reasonably challenge the accuracy of thasa statements. But the inability to ssceurately predict how many prisoners, parolees, prabationers and potential defendants will be impacted by the Implementation of AB 109, and the likelihood that the County will ot have sufficient funds for the costs of the implementation ara financial Issues. Thare is no doubt that implementation of AB109 wil force the county to make hard budgetary choices, the Impact of which will ikely Impact the quality and quantity of services, available to residents. However unpredictable the population, and hawever likely a reduction in services may ba, such circumstances lack the urgency and magnitude of a threat to public access to services and faciities contemplated by Government Code Section $4957, Moreover, the matters discussed in closed session pertained to implementation of the nowy enacted laws, including budgetary matters, allocation af resources, and introduction of persons at the state level who will be responsible for handling the challenges, both practical and budgetary, that all parties anticipate will devolop as realignment of the criminal justice sentencing and corrections systems is implomented. Matters like the deployment of persannel and implementation of programs, and ‘concerns abgut the abilty of focal agencies fo adequately respond to this lagislative ‘everhaul of the criminal justice system of sentencing and corrections are “sensitive business," and the impact of this enormous change in the eriminel justice system wil undoubiedly be profound. However, implementation of the reatignment laws does not Constitute @ potential threat ta public services oF facilites. as articulated by Government Code Section 54857. Consequently, the closed session conducted was simply nat Permissible undar the law. ‘Miggation of row Act Violations by tb Los Angeles Coun ded of Supervisors PID Cae 11-0629 Samay 24, 2012 Page 088 We agree with County Counsel that the circumstances that gave rise lo this meeting ate unlikely to recur with regard to the subject of AB 109. We do not believe the risk of recurrence Is suffcient to warrant resort to further coun process, However, we strongly urge the Board to recall the public's absolute right to open meetings, even in Ihe face of “sensitive business’ like realignment. These are dificult and challenging times as the many permutations of AB 108 and the realignment of criminal sentencing and Corrections in California take shape. Nonetheless, “The pacple, in defedating authority, do not give their public servants the right to decide what fs gond for the peopfe to know and what is nol goad for them fo know.” Gavernment Code Section 54950, Itis imperative, that legislative bodies avoid the temptation of retreating behind closed doors ‘as a means of deflecting public access especially when faced with tha challenge of dealing with matters that involve "sensitive business" and instead be willing to tackle such issues in an open and public forum. By so doing, their actions encourage ‘vonfidence in the Integrity of the dacision making process, a orfical carmpenent of effective governance. We urge this Board to demonstrata a renewed commitmant to the letter and the spint of the Brown Act, especially in circumstances that involve “sensitive business,” very tmily yours, STEVE COOLEY District Attomay Fy WA, JgNNIFER LENTZ SNYDER aksistant Head Deputy Public Integriy Division