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.

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).

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.

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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