Untitled California Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
:
OPINION : No. 89-903
:
of : January 9, 1990
:
JOHN K. VAN DE KAMP :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
THE HONORABLE JAMES P. FOX, DISTRICT ATTORNEY, COUNTY
OF SAN MATEO, has requested an opinion on the following question:
Would the adoption by the Midpeninsula Regional Open Space District of a
resolution listing all parcels of real property larger than twenty acres within its planning area
as the potential subject of negotiation for purchase satisfy the disclosure prerequisite for a
closed session regarding the purchase of any one or more of such parcels?
CONCLUSION
The adoption by the Midpeninsula Regional Open Space District of a
resolution listing all parcels of real property larger than twenty acres within its planning area
as the potential subject of negotiation for purchase would not satisfy the disclosure
prerequisite for a closed session regarding the purchase of any one or more of such parcels.
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ANALYSIS
A regional open space district is a public agency created pursuant to law
(§§ 5500, 5501)1, and governed by a legislative body consisting of a board of directors
(§§ 5527, 5537). A district is comprised of contiguous territory of three or more cities, or of
one or more cities having a combined population of 50,000. A district may operate and
maintain a system of public parks and open space preserves for public recreation, use, and
enjoyment, and for such purposes may select, designate, and acquire land. (§ 5541.) A district
may acquire the land by grant, purchase, or condemnation. (§§ 5540, 5542, 5544.2.)
The Midpeninsula Regional Open Space District was created in 1972,
consisting of a precisely defined 330 square mile area south of San Francisco and northwest
of San Jose. More than 30,000 acres of large, undeveloped or sparsely developed parcels of
foothill and bayland open space adjacent to urbanized areas have been acquired. The
Midpeninsula board of directors conducts a meeting twice monthly, in each of which a closed
session is held. In each such closed session, a prescheduled list of one to five specific parcels
is considered for purchase. The district has prepared a list, updated annually, of
approximately 700 parcels that might be discussed at any time during the year, with specific
criteria so that owners will know whether their properties may be considered. The list
consists of properties within the district’s planning area that are larger than twenty acres.
Only a small percentage of the listed parcels are discussed in one year. Thus, the fact that a
parcel is on the list does not in any way indicate an interest in the property, but rather that the
property could possibly be discussed in a closed session during the year. Negotiations with
an owner may transpire in this respect without the knowledge and interference of third
parties, e.g., real estate brokers, developers, and competitive bidders.
We are asked whether the listing by the district of all parcels of real property
larger than twenty acres within its planning area satisfies the disclosure prerequisite for a
closed session regarding the purchase of any one or more of such parcels. Section 5535
provides that all legislative sessions of the board, which shall be held at least once each
month, shall be open to the public. However, section 5536, subdivision (b), provides that a
“meeting”, for purposes of per diem, includes closed sessions of the board.
We have recently reviewed the basic tenets of the principal statute governing
the conduct of open meetings of local agencies. (71 Ops.Cal.Atty.Gen. 96 (1988).) The
public policy underlying the Ralph M. Brown Act is expressly declared at the outset (Gov.
1
Unidentified statutory section references herein are to the Public Resources Code, unless otherwise
noted.
2
Code § 54950).2
“In enacting this chapter, the Legislature finds and declares that the
public commissions, boards and councils and the other public agencies in this
State exist to aid in the conduct of the people’s business. It is the intent of the
law that their actions be taken openly and that their deliberations be conducted
openly.
“The people of this State do not yield their sovereignty to the agencies
which serve them. The people, in delegating authority, do not give their public
servants the right to decide what is good for the people to know and what is
not good for them to know. The people insist on remaining informed so that
they may retain control over the instruments they have created.”
Section 54953, subdivision (a), contains the principal operative provision of the Act:
“All meetings of the legislative body of a local agency shall be open
and public, and all persons shall be permitted to attend any meeting of the
legislative body of a local agency, except as otherwise provided in this
chapter.” (Emphasis added.)
The board of directors of a regional open space district is a “legislative body” within the
meaning of section 54952:
“As used in this chapter, ‘legislative body’ means the governing board,
commission, directors or body of a local agency, or any board or commission
thereof, and shall include any board, commission, committee, or other body on
which officers of a local agency serve in their official capacity as members and
which is supported in whole or in part by funds provided by such agency,
whether such board, commission committee or other body is organized and
operated by such local agency or by a private corporation.”
(And see, Pub. Resources Code, ¶ 5537: “The board of directors is the legislative body of the
district and shall determine all questions of policy.”) Further, a district is a “local agency”
within the meaning of section 54951:
“As used in this chapter ‘local agency’ means a county, city, whether
general law or chartered, city and county, town, school district, municipal
2
Hereafter, all undesignated section references are to the Government Code.
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corporation, district, political subdivision, or any board, commission or agency
thereof, or other local public agency.” (Emphasis added.)
Two additional sections may be pertinent to this analysis. Section 54958
provides that:
“The provisions of this chapter shall apply to the legislative body of
every local agency notwithstanding the conflicting provisions of any other
state law.”
Section 54962 provides:
“Except as expressly authorized by this chapter, . . . no closed session
may be held by any legislative body of any local agency.” (Emphasis added.)
We are now prepared to consider whether section 54956.8 constitutes such an
express authorization. That section provides as follows:
“Notwithstanding any other provision of this chapter, a legislative body
of a local agency may hold a closed session with its negotiator prior to the
purchase, sale, exchange, or lease of real property by or for the local agency
to give instructions te its negotiator regarding the price and terms of payment
for the purchase, sale, exchange, or lease. However, prior to the closed session,
the legislative body of the local agency shall hold an open and public session
in which it identifies the real property or real properties which the
negotiations may concern and the person or persons with whom its negotiator
may negotiate.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
This statute authorizes the holding of a closed session by a local agency for the purpose of
giving instructions to its negotiator regarding the price and terms of purchase of real
property, provided that the agency first identify in open session the property or properties
which the negotiations may concern. It has been suggested that the phrase “real properties
which the negotiations may concern,” is a proper reference to the whole universe of
properties which the agency is permitted by law to consider for purchase. Under this
interpretation, the district’s list of 700 parcels would satisfy the requirement for a closed
session even though the two parcels scheduled for review and instruction at a particular
closed session have not been otherwise disclosed.
Selected rules of statutory interpretation were recently summarized in Beaty
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v. Imperial Irrig. Dist. (1986) 186 Cal. App. 3d 897, 902:
“The fundamental rule of statutory construction is ascertaining the
intent of the Legislature so as to effectuate the purpose of the law. (Moyer v.
Workmen’s Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230.) The court looks
first to the language of the statute, attempting to give effect to the usual,
ordinary import of that language and seeking to avoid making any language
mere surplusage. Significance if possible should be attributed to every word,
phrase, sentence and part of an act in pursuance of the legislative purpose.
(Ibid.) The various parts of a statutory enactment must be harmonized by
considering the particular clause or section in the context of the statutory
framework as a whole. (Select Base Materials v. Board of Equal. (1959) 51
Cal. 2d 640, 645.) The provisions must be given a reasonable and
commonsense interpretation consistent with the apparent purpose and intention
of the Legislature, practical rather than technical in nature, and which, when
applied, will result in wise policy rather than mischief or absurdity. (United
Business Com. v. City of San Diego (1979) 91 Cal. App. 3d 156, 170, City of
Costa Mesa v. McKenzie (1973) 30 Cal. App. 3d 763, 770.)”
We begin with the consideration that each word should be significant rather than superfluous,
and accorded its usual and ordinary import. In this regard, the statute requires that an open
session be held in which the public agency “identifies” the property or properties which may
be considered in the closed session. In People v. Weger (1967) 251 Cal. App. 2d 584, 593, the
court considered the words “identify” and “identity”:
“Here, again, we may look to the commonly accepted meaning of the
words. According to the American College Dictionary, ‘identify’ means to
‘establish as being a particular person or thing; attest or prove to be as
purported or asserted. ‘Identification,’ according to College Law Dictionary
means ‘Proof that a person or thing is the person or thing [he or] it is supposed
or represented to be.’
“State v. Evjue, 253 Wis. 146 [33 N.W.2d 305], involved a statute
which prohibited the publication of ‘the identity of a female who may have
been raped or subjected to any similar criminal assault . . .’ (P. 308 [33 N.W.
2d].) In holding that the word ‘identity’ as there used was not
unconstitutionally vague or indefinite the court said (p. 309 [33 N.W. 2d]):
‘The word “identity” is not a word of art in the law. “Identity” is a noun and
from it the adjective “identical” is derived. Things are said to be identical
when they are the same, equivalent, equal. To identify is to establish the
identity of; to prove the same with something described, claimed, or asserted.
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Identity is defined as sameness of essential or generic character in different
examples or instances; the limit approached by increasing similarity; sameness
in all that constitutes the objective reality of a thing. (Webster) . . . .’ ”
In our view, the publication of a list of 700 parcels fails to particularly establish, and
therefore to identify, the subject matter of the closed session, consisting of not more than six
prescheduled parcels. It must be noted in this regard that the property or properties must be
identified “prior to the closed session,” and with the degree of specificity required to
effectuate the statutory purpose. (Cf. Davis v. City of Berkeley (1988) 47 Cal. 3d 512,
516–517.) The apparent purpose of the enactment was to provide the members of the public
an opportunity to comment or to take pertinent action in favor of or opposition to a particular
acquisition, such as by communication with other members of the public, one or more
members of the board, its staff, or the owner of the property or the agents of the owner. In
order for any such comment or action to be relevant and appropriately directed, however, the
property to be considered at a particular closed session of the board, as well as “the person
or persons with whom its negotiator may negotiate,” must be specifically identified. In
accordance with this statutory purview, a public disclosure must be made identifying with
particularity the properties to be considered in each closed session.
Further, the proposed publication is not reasonably consistent with the general
purpose and intent of the Legislature. As expressed in its declaration of public policy
(§ 54950, supra), the legislative purpose was to foster the right of the people to remain
informed so that they may retain control over the instruments they have created. In this
regard, we fail to perceive the practical utility of the proposed list of properties and owners.
It is, of course, well established that the Brown Act should be interpreted liberally in favor
of its open meeting requirements, while the exceptions to its general provisions must be
strictly, or narrowly, construed. (San Diego Union v. City Council (1983) 146 Cal. App. 3d
947, 954–955.) Section 54956.8, beginning with the words, “[n]otwithstanding any other
provision of this chapter,” is an exception within the meaning of sections 54953, subdivision
(a), and 54962, both supra, to the general rule that the meetings of legislative bodies of local
agencies shall be open and public.
It is concluded that the listing by the district of all parcels of real property
larger than twenty acres within its planning area does not satisfy the disclosure prerequisite
for a closed session regarding the purchase of any one or more of such parcels.
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