We are all for a proposal to be considered next Tuesday by the Palo Alto City Council that would require an affirmative vote to authorize any closed session, whether born out of last year's scathing Grand Jury report, a sincere belief in greater transparency or pure political grandstanding.
It is impossible to know whether such a rule would have resulted in any past closed sessions not happening, but it's a reasonable and harmless step toward greater transparency and individual accountability.
Under the current practice, used by most local agencies, a decision to have a closed session is made unilaterally by the city manager and the city attorney and is guided by the state open-meeting law, the Brown Act, which spells out the limited circumstances when meetings may exclude the public. The most common exceptions are for personnel matters, labor or real estate negotiations and litigation.
The law is permissive, not prescriptive; nothing requires a public body to meet in closed session except in a very few cases that, in general, involve individual privacy rights.
But the practice in most cities is to take full advantage of the Brown Act's exceptions and to meet in closed sessions whenever the city manager and city attorney believe it is legally permissible.
A notice of the closed meeting and the topic(s) to be discussed must appear on the agenda and by law the public must be given an opportunity to comment prior to the commencement of the closed meeting.
Since the closed meetings are often set to happen prior to the start of the open public meetings, however, no members of the public are usually present, and often neither are most council members.
The proposal to change this process was made by Councilman Greg Scharff in the wake of the Grand Jury report, which found that the City Council inappropriately noticed and held closed meetings to discuss developer John Arrillaga's unsolicited interest in purchasing a city-owned parcel that was not for sale next to his property near Foothills Park. The discussions did not involve negotiations nor any other legitimately exempt matters and was a clear violation of the law. Every council member, and especially lawyers Scharff and Larry Klein, should have recognized the problem, raised objections and, if necessary, left the meeting.
Scharff now proposes that the City Council vote in public prior to going into closed session, primarily as a way to make council members assume the responsibility for affirmatively determining a closed session is in compliance with the Brown Act and in the public interest.
Former councilman Klein, who opposed the idea when it was proposed and again when it was considered last October by the council's Policy and Procedures Committee, argued that the proposal was a solution in search of a problem and that under the current process any council member may make a motion in closed or open session not to close the meeting to the public.
Klein is right, but so is Scharff.
Although Klein successfully argued that there should be a public discussion about the city's Cubberley lease negotiations with the school board when legally the council could have avoided doing so under the Brown Act's real estate negotiation exception, such action is virtually unprecedented, and the council willingly defers to city staff on closed-session determinations. While an individual council member can object to a closed session, either before or after it has started, we know of no instance where this has occurred and then led to the reversal of the staff's decision.
Elected officials are well-known to use closed sessions, especially those noticed as performance reviews of the city manager or school superintendent, to discuss matters the Brown Act prohibits, but there is no effective enforcement mechanism.
In considering Scharff's proposal last October, the Policy and Procedures Committee split 2-2, with now retired Klein and Gail Price opposing it and Scharff and now-Vice Mayor Greg Schmid favoring it.
The idea therefore comes to the council next week with no recommendation from the committee, but also without two opponents.
It is not likely that imposing the requirement for a vote prior to going into closed session will dramatically change the number of closed sessions held by the City Council, but it does achieve greater transparency and will, on occasion, cause both staff and council members to think twice about it.
Had this proposal been the policy back in 2013 when the Arrillaga discussions took place, we hope that a council member would have raised objections prior to a vote to go into closed session, sparing the council the embarrassment that later followed.
Editor's note: A correction removing a reference to Councilmember Marc Berman was made to the above editorial, reflecting the fact that he was not on the City Council when it discussed the Arrillaga proposal in closed session.