Was the closed meeting legal?

MONTEREY — Highland supervisors held a closed session following their monthly meeting April 9. County attorney Melissa Dowd requested the session, and the board cited "pending litigation regarding wind energy" as the reason for closing the meeting to the public.

No specific, threatened or potential lawsuit was mentioned at the time, but Dowd told The Recorder this week that aside from discussions about Highland New Wind Development's proposal for an electric utility, she was also asking the board about whether she should pursue another legal matter involving an individual's failure to pay the county's trash fees.

The Freedom of Information Act says governing bodies can close a meeting for legal reasons. This exemption for open meetings states, "Consultation with legal counsel … pertaining to actual or probably litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body."

It also defines "probable litigation" as that which has been "specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a know party."

Also, it adds, nothing in this section of the law "shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter."

When asked about the meeting, supervisor David Blanchard said all three supervisors asked Dowd at the time why the meeting should not be open to the public.

"The question was raised by all three of us (supervisors) as to why the discussion was not in public," he said. "But she (Dowd) felt the county could get sued either way."

Beyond that, he said, "There was no good reason (to close the meeting) other than the board of supervisors has gotten gun-shy from all the controversy over this issue."

The decision to discuss the wind energy project behind closed doors was her call, Dowd explained. "The Freedom of Information Act gives legal counsel enough discretion to call for a closed meeting," she said, "and on this one, I felt I had enough experience; I felt there was more than a 90 percent chance the county could get sued." She said supervisors had asked for her interpretation of the new laws affecting special use permits, and she felt it was important for them to have all the potential scenarios to weigh. "But I didn't want to announce our legal strategies publicly," she said.

The law also says that following a closed meeting, governing bodies must reconvene in open session, and take a roll call vote — something supervisors failed to do April 9.

Each official must vote as to whether he or she believes the meeting was held legally, discussing only those issues it felt were legal under FOIA exemptions. The law states, "At the conclusion of any closed meeting, the public body holding such a meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge: i) only public business matters lawfully exempted from open meeting requirements … and ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered … Any member of the public body who believes that there was a departure from the requirements … shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body."

"I didn't know that," Blanchard told The Recorder. "I know that's no excuse," he added, "but I'm surprised we didn't do that … I know our procedure is being watched closely on this.

"I'd like to find out why (no vote was taken)," he added. "I'd like to know what procedure we missed. Was I not paying attention? … It's so easy to fall into lockstep and maybe I was just following along. But again, that's absolutely no excuse."

Dowd agreed the board did not follow legal procedure. "And I was complicit in that," she said.

County administrator Roberta Lambert, who was also present that night, said one supervisor needed to leave before the meeting was over, and another was "out the door shortly thereafter."

"I did not get them back so that we would have the necessary quorum," Lambert said. "I will ask them to certify the closed meeting at a future meeting since there was no other action arising from their discussion."

Blanchard said after he took office more than a year ago, Dowd and Lambert provided him with a copy of the Freedom of Information Act, as required by law, but a lot of time has gone by since he familiarized himself with the procedures. "It's just one of those pieces of information I'd forgotten, I think," he said. "I had no knowledge of what we were going to discuss," he added.

What does it mean for the board's discussion? Nothing, unless a citizen chooses to make a legal issue of it.

The law states, "Failure of the certification … to receive the affirmative vote of a majority of the members of the public body present during a meeting shall not affect the validity or confidentiality of such meeting … The recorded vote and any statement made in connection therewith, shall upon proper authentication, constitute evidence in any proceeding brought to enforce the provisions (of this law)."

The board has not yet held another meeting to certify the April 9 closed session. Asked how he would vote when the time comes to do so, Blanchard said, "I don't want to comment on that right now."