Collision Between Mediation and Open Meeting Requirements

     L.A. Chung reports in the Los Altos Patch March 6, 2012 edition that the Los Altos School District abruptly cancelled a closed-door mediation with the Bullis Charter School 90 minutes before the session was to occur because of concerns about the Ralph M. Brown Act (Gov. Code sections 54950.5 et seq). 

     The facts of the dispute involving the charter school are somewhat obscure, at least to an outsider.  What caught our attention is the inherent conflict between the confidentiality demands of mediation and the Brown Act requirement of open meetings of local government bodies.  As Justice Louis Brandeis famously said, “sunlight is the best disinfectant.”

     For those of our readers who are interested, there actually is plenty of law on about local government bodies in California meeting to settle lawsuits with litigants, and whether such meetings have been conducted in such circumstances as would constitute a violation of the Brown Act.  See Page v. MiraCosta Community College Dist., 180 Cal. App. 4th 471 (2009) (holding public is entitled to monitor and provide input on the Board’s collective acquisition and exchange of facts in furtherance of a mediation or resolution of a litigant’s claims). 

     There is an important exception to the open meeting requirement:  local government bodies can meet with their counsel concerning litigation.  But it becomes a problem when local bodies meet in closed session and intermediaries start conducting shuttle diplomacy outside the room – which of course is typical of mediation.

     In Page, the court explained that the Brown Act:

“prohibits a legislative body from using "`personal intermediaries’" to exchange facts so as to reach a "`collective concurrence’" outside the public forum. (Wolfe v. City of Fremont, 144 Cal.App.4th 533, 544-547 (2006); see also 84 Cal.Ops.Atty.Gen. 30, 31, 32 (2001) [use of e-mails by a majority of board members to "`"exchange . . . facts,"’" "`advance or clarify a member’s understanding of an issue,’" or "`advance the ultimate resolution of an issue’" regarding an agenda item violates § 54952.2].) "To prevent evasion of the Brown Act, a series of private meetings (known as serial meetings) by which a majority of the members of a legislative body commit themselves to a decision concerning public business or engage in collective deliberation on public business would violate the open meeting requirement." (216 Sutter Bay Associates v. County of Sutter, 58 Cal.App.4th 860, 877 (1997)).”

     Based on Brown Act considerations, the Los Altos School District acted with prudence.