HomeMy WebLinkAboutAgenda Report - September 17, 2003 I-02OF 1
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CITY OF LODI
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COUNCIL COMMUNICATION
AGENDA TITLE: Discuss Engagement Of An Additional Opinion Regarding The PCEITCE
(Environmental Abatement Program) Matter
MEETING DATE: September 97, 2003
PREPARED BY: City Clerk
RECOMMENDED ACTION: That Council discuss the matter of obtaining an additional opinion
regarding the environmental abatement program relative to PCE[TCE
groundwater contamination and take appropriate action, if desired.
BACKGROUND INFORMATION: At the August 6 and August 20, 2003 City Council meetings,
Council Member Hansen requested that this matter be placed on the
agenda for discussion and possible action. Additionally, Mayor Hitchcock noted at the meeting of August 6
that she had previously made several requests for this topic to be placed on an agenda. Pursuant to these
requests, the matter now appears before Council for consideration.
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None required.
APPROVED:
H. Dixon Flynn --
Susan J. Blacksto
City Clerk
Jennifer Perrin
From: Pixler, Susan [PixierS@saccourt.com]
Sent: Wednesday, September 17, 2003 3:30 PM
To: Susan Blackston; Susan Hitchcock; Emily Howard; Keith Land; John Beckman; Larry Hansen
Subject: 9/17/03 Agenda Item 1-2
Honored Mayor and Councilmembers: Unfortunately, I will be unable to attend tonight's
council meeting. I am very concerned about the open session discussion regarding the
groundwater contamination litigation. I attach at the end of this message portions of the
recent California Supreme Court decision regarding litigation, settlement., and the Brown
Act, for your review.
This should not be construed as legal advice. Mr Hays, or possibly Mr. Beckman, can cite
you the state of the law on this. My own thoughts are that a second opinion is not the
correct solution to concerns raised recently by council members. Think of the council as
the "control" group of a corporation, i.e, the Board of Directors, officers, etc. Your
duty of disclosing information to the Lodi public is similar to their duty to
shareholders. However, once litigation is involved, the obligations of the control group
are to direct the litigation in a manner that holds the best interests of the respective
constituency as the tantamount goal. That is why there exists a litigation exception. If
you are unhappy with the way counsel (both Mr. Hays and Mr. Donovan) is handling the
litigation, or with the lack of information that is being provided to you about the
litigation, your first recourse should be to demand a comprehensive written status report
from counsel answering all of your questions. If you are not satisfied with what you
receive, you don't believe further warnings will work, and you believe that you are being
misled by your counsel, fire them. (In the case of Mr. Hays, you could remove him from
the case.) I am not suggesting that you do so, but that this is the better procedure.
You should be prepared for litigation over your contract with Mr. Donovan. You interview
other counsel - in private, under the litigation exception to the Brown Act - and obtain
their perspectives and how they would handle the litigation should they be selected to
represent the City of Lodi. As I understand it at this time, there is no purpose to
asking another attorney to review the past work of your attorneys.
I see the problems with asking for simply a second opinion as follows:
You could get 50 second opinions from different counsel and they are not going to agree.
Of course, only counsel with a detailed understanding of the facts and the specialized
body of law is going to have an opinion worth any weight.
I am assuming that the second opinion would not be public? See the Supreme Court case
excerpt below.
What are you asking a second opinion of? The merits of the lawsuit, the conduct of
counsel, a risk/benefit analysis?
One related thought - from what I have read in the newspaper, it seems to me that opposing
counsel are ethically barred from talking to council members about the subject matter of
the litigation - which includes all aspects. Councilmembers are represented by counsel,
and all communications from opposing counsel must go through Mr. Hays, just as Mr. Hays
cannot go out to discuss the lawsuit with one of the named defendants or insurers. the
subject of the litigation should be strictly off limits. Councilmembers also hold the
attorney client privilege for the benefit of the City of Lodi. That privilege should not
be waived by discussing the lawsuit with third parties. Again, I am sure that Mr. Hays
has so advised you.
There is a lot at stake here. I urge you all to treat this in the best interests of Lodi,
and to leave politics out of it. This is a complex situation, the law is not set, and the
decision must be made by you, our elected representatives. This is simply not a situation
where the voters of Lodi should be telling you what you should do based on less than all
of the facts.
From Southern California Edison co. v. Peevey (2003) CA S.Ct.: PUC contends taking this
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action in closed session did not violate the Bagley -Keene Act, but, rather, was permitted
under an exception to the law's open meeting requirement, Government Code section 11126,
subdivision (e)(1), which provides as follows. "Nothing in this article shall be construed
to prevent a state body, based on the advice of its legal counsel, from holding a closed
session to confer with, or receive advice from, its legal counsel regarding pending
litigation when discussion in open session concerning those matters would prejudice the
position of the state body in the litigation." We agree. On its face, subdivision (e)(1)
permits a body only to "confer with" and "receive advice from" its attorney regarding
litigation. But subdivision (e)(1) must be read in light of its purposes and in consonance
with a closely related provision of the Bagley -Keene Act, Government Code section 11126.3,
subdivision (a), which allows a body to withhold the identity of litigation to be
considered in closed session if to identify it would "jeopardize its ability to conclude
existing settlement negotiations to its advantage." (Italics added.) Read in light of its
purposes and in that statutory context, Government Code section 11126, subdivision (e)(1)
was, as will be seen below, clearly intended to permit the body not only to deliberate
with counsel regarding a settlement, but actually to settle the litigation in a closed
session when closure is deemed necessary to avoid prejudice to a favorable settlement.
Settlement discussions with counsel are obviously an aspect of litigation particularly
vulnerable to prejudice through public exposure and are thus one of the areas Government
Code section 11126, subdivision (e)(1) was centrally intended to shelter from public
revelation. In Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968)
263 Cal. App. 2d 41 , the court held that the enactment of the Ralph M. Brown Act (Gov.
Code, H 54950-54962; hereafter Brown Act), the open meeting law applicable to local
public entities, was not intended to remove protection of the attorney-client privilege
from local government bodies' deliberations with their attorneys concerning litigation.
Public entities have as great a need for confidential counsel from their attorneys as
private litigants and should not be put at a disadvantage in litigation by depriving them
of that essential assistance. (Sacramento Newspaper Guild, supra, at p. 55.) In
particular, the court explained, a public entity's discussion with counsel about possible
settlement must occur in private, for such conferences require a frank evaluation of the
case's strengths and weaknesses, and "[i]f the public's 'right to know' compelled
admission of an audience, the ringside seats would be occupied by the government's
adversary, delighted to capitalize on every revelation of weakness." (Id. at p. 56;
accord, Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373-374 .) The Legislature
subsequently added protective provisions to both the Bagley -Keene and Brown Acts,
vindicating the view expounded in Sacramento Newspaper Guild. Both new provisions were
phrased in the language of current Government Code section 11126, subdivision (e)(1). (See
Stats. 1981, ch. 968, § 12, p. 3690, adding former subd. (q) to Gov. Code, § 11126; Stats.
1984, ch. 1126, § 3, p. 3802, adding Gov. Code, § 54956.9.)
In 1992, the California Attorney General's Office construed Government Code section
54956.9, the Brown Act provision paralleling Government Code section 11126, subdivision
(e)(1), as authorizing a public entity to act on a settlement proposal, as well as
deliberate on it, in closed session with its counsel. (75 Ops.Cal.Atty.Gen. 14 (1992)_)
The Attorney General noted, first, that the Brown Act's "personnel exception" (Gov. Code,
§ 54957) has been construed to permit closed -session action on appointments and dismissals
(see Lucas v. Board of Trustees (1971) 18 Cal. App. 3d 988, 991), even though on its face
the statute authorizes only a closed session to "consider" such personnel matters. "The
parallel between section 54957 ('to consider') and section 54956.9 ('to confer') warrants
similar treatment." (75 Ops.Cal.Atty.Gen., supra, at p. 19.)
The same parallel may be drawn between the corresponding provisions of the Bagley -Keene
Act. HN11Subdivision (a)(1) of Government Code section 11126 permits closed sessions "to
consider" personnel matters. Though case law has not yet addressed the point, we note that
the immediately following provision, subdivision (a)(2), refers to " any disciplinary or
other action taken against any employee at the closed session," indicating that the
Legislature intended, in the Bagley -Keene Act as (according to the Attorney General) in
the Brown Act, that the government body could not only deliberate, but act, in closed
session. The language used in Government Code section 11126, subdivision (e)(1),
permitting a body "to confer" with counsel on settlement of pending litigation, is not so
dissimilar to that in subdivision (a)(1) ("to consider") as to warrant a different
interpretation.
Interpreting the Brown Act counsel provision, the Attorney General also reasoned that
consultation with counsel in the course of litigation often focuses on possible action--
e.g., whether to file a suit or countersuit, what claims and defenses to plead, what
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parties to join. Conferring with counsel on these matters necessarily includes deciding on
a course of action and instructing or authorizing counsel to pursue it. The same applies
to settlement discussions. "Unless a local agency is to be a 'second class citizen' with
its opponents 'filling the ringside seats' (Sacramento Newspaper Guild v. Sacramento
County Ed. of Suprs., supra, 263 Cal. App. 2d at p. 56), it must be able to confer with
its attorney and then decide in private such matters as the upper and lower limits with
respect to settlement, whether to accept a settlement or make a counter offer, or even
whether to settle at all. These are matters which will depend upon the strength and
weakness of the individual case as developed from conferring with counsel. A local agency
of necessity must be able to decide and instruct its counsel with respect to these matters
in private." (75 Ops.Cal.Atty.Gen., supra, at pp. 19-20.)
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