Response from
County Counsel
Re: 2000-2001
San Mateo County Grand Jury - Laguna Salada Union School District
County Counsel Advice Regarding Ralph M. Brown Act
A. Response
to Findings
The County Counsel's
Office respectfully disagrees with all of the Grand Jury's findings
in this report.
1. First Finding
(Meeting in Closed Session)
The Grand Jury's
finding that the District, instead of meeting in closed session to
discuss whether or not to waive the attorney-client privilege, should
have met "in open session in a way that would not reveal confidential
interviews or information" is, in the final analysis, not legally
required and not workable. Additionally, such a discussion in open
session is impractical and full of ethical pitfalls.
In summary, when
the Grand Jury requested to meet with the District's lawyer as part
of its investigation of the District, it did so without identifying
the subject matter of what would be discussed with the lawyer. Consequently,
the District was left guessing as to what the Grand Jury might ask
its lawyer. The Grand Jury, who has no particular interest in the
attorney-client relationship between the District and its lawyer,
could inquire into anything, including matters of advice the lawyer
gave in confidence to the district in closed session. Indeed, it is
reasonably foreseeable that the Grand Jury would in fact spend most
of its time asking the District's lawyer to discuss advice it gave
to the District, since the lawyer's exclusive role with the District
is to provide advice, all of which is attorney-client privileged.
Knowing this, the lawyer cannot just sit down with the Grand Jury
and discuss advice it gave to the District. If the lawyer did this,
the lawyer would violate the attorney-client privilege, which could
lead to the lawyer being sanctioned by the State Bar. As a matter
of law, the only way the lawyer could speak with the Grand Jury is
either by court order, or if the client-District took action to waive
the attorney-client privilege.
Therefore, when
faced with the Grand Jury's request to meet with its lawyer, the District
had three options: (1) ignore the Grand jury request thus necessitating
the Grand Jury to obtain a court order, (2) hold an open session to
discuss waiving the attorney-client privilege, or (3) hold a closed
session to discuss waiving the attorney-client privilege. Each option
is discussed below.
The first option--ignoring
the Grand Jury's request and thereby forcing that body to subpoena
the District' lawyer, causing the district to file a motion to quash
the subpoena, and thereby further forcing the Grand Jury to obtain
a court order authorizing them to speak with the lawyer-- would have
been a highly litigious and unnecessary avenue. In addition, the District
had to consider the negative publicity of the media reporting that
the District was subpoenaed to testify because they refused to cooperate
with the Grand Jury.
The more difficult
and legally complex choice was to decide between the second and third
options, to discuss a waiver in open versus closed session. Ultimately,
our advice to the District to meet in closed session to act on whether
to waive the attorney-client privilege so that their attorney could
meet with the Grand Jury was communicated only after a great deal
of discussion both in and outside the office. Specifically, this was
a well-thought out recommendation to the school board that was made
after hours of legal research on the Brown Act and the Attorney-Client
Privilege, followed by a lengthy meeting between five lawyers in the
County Counsel's office who got together to review and discuss the
matter, followed by a discussion with James Fox, the San Mateo County
District Attorney, who agreed with the County Counsel's legal interpretation
and recommendation. Only after this comprehensive process, was the
recommendation made to the school board that it was permissible to
meet in closed session.
The interpretation
of statutes is an ongoing and difficult process that requires a decision
based on an analysis of the facts and law. Lawyers don't always agree
on interpretations, and this is why there are thousands upon thousands
of cases every year involving lawyers on both sides of a case arguing
different interpretations of statutes to judges. In fact, even judges
disagree on interpretations, and this is why it is necessary to have
higher courts to resolve differing legal interpretations by lower
court judges. Based on the facts and law of this particular legal
question, we came to the conclusion that meeting in closed session
was permissible. The Office of the Legislative Counsel came to a different
conclusion, but they did so based, in part, on a misunderstanding
of the facts. The Legislative Counsel was misinformed that the County
Counsel's Office recommendation for closed session was based on the
"pending litigation" exception to the open meeting requirements. This
was not the case. In addition, the Legislative Counsel wrote an extremely
mechanical, overly simplistic opinion that offered no recognition
of the complex legal issue presented, or any suggestion for how they
would approach the very real legal problem at issue. The County Counsel's
Office, on the other hand, was representing a real client with a real
legal dilemma that needed a real and immediate solution.
Indeed, there
are many public body meeting issues that are not specifically covered
under the Brown Act. In some cases, such as the instant case, the
legislature simply never anticipated the question. With respect to
school boards as public bodies, for example, it is axiomatic that
when a school board holds an expulsion hearing, such hearing is held
in closed session, in order to protect the privacy of the minor pupil.
Under those circumstances, it is not the Brown Act that authorizes
the closed session, it is the Education Code. Likewise, when a school
board meets to consider an interdistrict transfer, the meeting with
the minor and the minor's parents is held in closed session. The authority
is held in state and federal student privacy laws, not in any permissible
closed session exemption under the Brown Act. Likewise, when a school
board needs to meet with its lawyer to determine if the Board should
waive the attorney-client privilege, it is necessary that this meeting
take place in closed session.
As the attorney
for the school district, any communications between the school board
and the County Counsel's Office are protected by the attorney-client
privilege. In order for the County Counsel's Office to communicate
the subject matter of an attorney-client privileged communication
to a third party, including the Grand Jury, it must obtain a waiver
from the client, who is the holder of the privilege. It takes a simple
majority of the school board (three members) to act to waive the privilege.
If a public body meets in open public session to discuss whether or
not it should waive the privilege, it runs the risk of, in fact, waiving
the privilege by discussing the matter publicly. This is because,
pursuant to the Evidence Code, any voluntary or inadvertent disclosure
of a significant part of a communication to a third party (e.g. the
public) waives the privilege. How does the school board have a candid,
well-informed, well-considered, comprehensive discussion of whether
to waive the attorney-client privilege, in whole or in part, in open
session without making inadvertent disclosures that both waives the
privilege and exposes the district to potential liability for revealing
matters of privacy? As a practical matter, how would the District
execute the Grand Jury's suggestion that the waiver discussion be
held "in open session in a way that would not reveal confidential
interviews or information?" If the sole purpose in meeting is to consider
whether to waive confidential communications, how can the Board have
a public conversation about what particular confidential communications
they are willing to waive, when the communications are confidential.
They can't.
For this reason,
it would potentially be legal malpractice to advise a board to discuss
their decision to waive an attorney-client privilege publicly. This
is why the second option was not recommended. The only alternative
was to meet in closed session. Indeed, meeting in closed session under
these circumstances does not violate the spirit of the Brown Act,
which is that the public's business is to be conducted publicly. Here,
what was being discussed by Board members is not, by definition, public
business since the discussion is limited only to whether or not the
Board should waive previous communications between the lawyer and
the school board, none of which were public in the first place!
Moreover, pursuant
to state law, the Grand Jury process itself is supposed to be secret.
The legislature has determined that the public does not have a right
to know what a grand jury is investigating or that it has called certain
witnesses to testify in the investigation. If the meeting were held
publicly, the public would be made aware of the Grand Jury investigation
and the witnesses they are seeking to speak with (in this case, the
attorney), thus violating the intent of the legislature and compromising
the secrecy of the Grand Jury process.
The fact of that
matter is, if the Grand Jury report were correct, then no public lawyer
could ever meet with their public body client to obtain a waiver of
the attorney-client privilege, unless there was anticipated or pending
litigation. Certainly, the legislature never intended such a result.
The County Counsel's Office gave a practical solution to a practical
legal problem that complies with Attorney-Client Privilege law, Grand
Jury law, and the Brown Act. Consequently, we respectfully submit
that the Grand Jury report was misguided and legally incorrect.
2. Second
Finding (Notice Requirements)
The County Counsel's
Office also respectfully disagrees with the second finding, that the
notice of the closed session was improper because "the Brown Act (Government
Code 54956.9)... directs the only form in which the notice can be
presented." This is legally incorrect.
The Brown Act
specifically states: