The Ralph M. Brown Act is short, old, and deceptively simple. Most of the closed-session problems we are asked to clean up are not the product of bad faith. They are the product of an agenda description written in a hurry.
1. The agenda description is too thin
Government Code section 54954.5 supplies safe-harbor language for the common closed session categories. Agencies that depart from it to be more concise frequently end up describing the item so generally that the public cannot tell what will be discussed, which is the whole point of the description.
2. Treating anticipated litigation as a catch-all
The anticipated-litigation exception requires facts and circumstances creating a significant exposure to litigation, and in most cases those facts should be documented before the meeting. A general sense that someone is unhappy is not enough.
3. Letting the discussion drift
A closed session is bounded by the item as noticed. When a real estate negotiation item drifts into a personnel evaluation, the body has held an unnoticed closed session, regardless of how related the topics felt in the room.
4. Serial communications outside the meeting
Section 54952.2 reaches indirect communications. A chain of individual emails, or a staff member relaying positions from member to member, can constitute a meeting even though the members were never in a room together.
5. Skipping the report out
Certain closed session actions must be reported in open session, sometimes immediately. Missing the report out converts a defensible closed session into a documented violation.
The cure period under section 54960.1 is a genuine opportunity. Agencies that respond to a demand letter with a careful factual review, rather than a reflexive denial, resolve most of these matters without litigation.
What we recommend
Use the statutory safe-harbor language, and resist the urge to shorten it.
Document the basis for an anticipated litigation closed session before the meeting, not after.
Give the presiding officer a short script for keeping discussion within the noticed item.
Calendar the report-out obligations with the agenda, so they are not left to memory.
If your agency has received a cure and correct demand, the response deadline is short. We are available to review the agenda, the record, and the demand together.
