Confusion surrounds closed session rules
GILROY
Council members disagree on what they can and cannot say after closed sessions, so much so that some are holding their tongues during the private meetings lest one of their colleagues repeat the conversation, according to council members who also said the mayor has recently reminded them about the legal consequences of having a big mouth.
Repeating confidential information learned during a closed session is illegal, according to state code, and all council members said they agree with this. But after a controversial closed session vote last December was not reported, some council members wonder if they can talk about information only loosely related to the topic of the meeting: What if a council member says something about the police station or cruisers in a closed session concerning the hiring of the police chief? Should tangential conversations related to the topic at hand remain sealed, too? What does “related to” even mean? These are questions a council with new blood needs to answer, according to Councilman Craig Gartman.
“There are differing opinions among council members, and that’s why we’ll discuss it further,” Gartman said. “If we talk about the police chief, does this mean we can’t say anything as it relates to the hiring of the police chief? Are we trying to put a gag in the mouth of council members? I don’t believe that’s the intent, but that’s how it’s written.”
Gartman was referring to the attendance sheet every council member signs at closed sessions. It reads, “I understand that I cannot disclose confidential information learned in this closed session and related to the topic of this closed session.” Confidential information is defined on the reverse side as “communication made in a closed session that is specifically related to the basis” of the closed session. So what exactly is information that is related to confidential information?
Nothing – just don’t say anything, said Councilman Bob Dillon.
“I think that’s all just wordsmithing,” said Dillon, who has received ethics and open government training like all of his colleagues. “I won’t disclose anything … I’d rather stay on the safe side.”
Mayor Al Pinheiro and Councilmen Dion Bracco and Peter Arellano agreed.
“I don’t think there’s much confusion,” Pinheiro said. “If we start talking about baseball, that doesn’t have to do with closed session, so that’s open, but anything related to the closed session item is not.”
“The way it’s written is good enough for me,” Arellano said. “I’d rather not say something and be OK than say something I thought was not related and then get in trouble and get sued.”
“That sign-in sheet is real simple,” Bracco said, “but now closed sessions are pretty quiet because there are people in there who don’t want to say anything because there are other people who can’t keep their mouths shut.”
Never mind how things were done before, though, Councilman Perry Woodward said. He disliked the “and related to …” clause – which Bracco said has worked fine since the first sheet Oct. 2, 2006 – so much that he struck his pen through it before agreeing to sign the sheet at the Jan. 14 closed session concerning the next city administrator. Nearly all cities use similar attendance-cum-oath sheets during closed sessions, according to City Clerk Shawna Freels, but Woodward’s no fan.
“If somebody says something in closed session that’s not related to the topic at hand, then I am not obliged to keep that confidential,” Woodward said. “(The sign-in sheet) does no harm if it does not expand the government code, but ‘related to the topic of the closed session’? That doesn’t make any sense,” Woodward said.
Pinheiro tried to straighten out any confusion before the Jan. 14 meeting, Woodward said, by threatening to refer suspected leakers to a grand jury, which the state code governing closed sessions allows.
“(Pinheiro) was confrontational enough that I said, ‘You know what? This (sign-in sheet) is flawed, and this is why I’m not signing it,’ ” Woodward said.
Pinheiro would not comment on anything discussed during the closed session, but did say “if anybody is caught, I have no qualms in making sure we get an investigation going.”
“Until the laws are changed – until we have sunshine law that says otherwise – we are to follow the (state open government law known as the) Brown Act,” Pinheiro said. “I respect Woodward, but he wants to bring certain things that he, as an attorney, has more of a passion for. His profession comes into play when he’s doing his job as a councilman.”
Veteran councilmen said the sheet has worked for years because whenever they do, in fact, veer off the conversational path, they quickly stop themselves.
“We catch ourselves and say, ‘Whoa, whoa, whoa – we’re getting too deep in this,’ and then we stop,” said Arellano, adding that discursive conversations usually continue later in an open session.
State law allows closed sessions to discuss personnel and legal matters as well as land deals. Any action, or vote, taken requires reporting, but in a controversial move last December, the council took an informal “straw” vote to direct then-City Administrator Jay Baksa to hire Denise Turner, and Pinheiro never reported the action. Woodward and Councilwoman Cat Tucker said at the time that they thought they were voting, which contributed to the air of confusion surrounding what can and cannot be reported after a closed session.
