In response to a request by a member of the public, the Council has asked that staff look at the issue of how much identifying information can and should be provided on the agenda for the benefit of the public in relation to Council Closed Sessions for real estate transactions.

The basic statutory authority for holding Closed Sessions for a local legislative body to discuss real estate transactions is found in Government Code �54956.8:

�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 grant authority to 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 its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate.   ��

In Government Code �54957.7 (a) the legislature adds:

�Prior to or after holding any closed session, the legislative body of the local agency shall disclose in an open meeting, the item or items to be discussed in the closed session.  The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda.  In the closed session, the legislative body may consider only those matters covered in its statement. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law.�

In practice in the City of Burbank as the Council meets in public prior to Closed Sessions, the items to be discussed in Closed Session are read.  If there are no members of the public present then the items to be discussed are only referenced by the number or letter on the agenda as allowed in �54957.7.  If members of the public are present then a more complete description of the matters to be discussed is given.

As to how such matters are to be disclosed on the agenda the Brown Act provides what has come to be known as �Safe Harbor� language.  It provides that if this Safe Harbor language is substantially followed �No legislative body or elected official shall be in violation of� the disclosure provisions of the Act.  (See Government Code �54054.5.)  As to the language on the agenda for real property discussions the Brown Act provides this Safe Harbor language:

�(b) With respect to every item of business to be discussed in closed session pursuant to Section 54956.8:

�CONFERENCE WITH REAL PROPERTY NEGOTIATORS

�Property: (Specify street address, or if no address, the parcel number or other unique reference, of the real property under negotiation)

�Agency Negotiator: (Specify names of negotiators attending the closed session)  (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator, so long as the name of the agent or designee is announced at an open session held prior to the closed session.)

�Negotiating parties: (Specify name of party (not agent))

�Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment, or both)� (Government Code �54954.5(b).)

After discussion of real property matters in Closed Session, the Brown Act requires public disclosure as follows:

�(a)  The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention of every member present thereon, as follows:

(1)  Approval of an agreement concluding real estate negotiations pursuant to Section 54956.8 shall be reported after the agreement is final, as specified below:

(A)  If its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting during which the closed session is held.

(B)  If final approval rests with the other party to the negotiations, the local agency shall disclose the fact of that approval and the substance of the agreement upon inquiry by any person, as soon as the other party or its agent has informed the local agency of its approval.�   (Government Code �54957.1(a).)

In the specific discussions that led to this request two issues were raised.  First, can and should the agenda disclosure include more information relative to the location of a corporation or other business entity when such entity is the prospective seller or buyer of real property.  Specifically, should the city where the office is located be disclosed, and should the exact address of the office be provided.  Secondly, should the names of any or all individual contacts in such business entity with whom the City is working on such project be disclosed.

With reference to both issues, we need to be cautious that in attempting to provide more information we don�t end up misleading the public.  Very often when we begin discussions with a corporation on the purchase or sale of a piece of property, before the negotiations are concluded we will have had contacts with several offices of that company.  The initial disclosure of the location or address, or even the last disclosure may not be currently accurate.  Likewise, the disclosure of a contact person at a corporation may change often during ongoing negotiations.

In addition, the Brown Act itself specifically states that agents should not be listed.  (See Government Code �54954.5(b).)  This makes it clear that the legislature wanted to have the actual parties to the transaction listed on the agenda and not the different and varied individuals with whom the discussions might take place.

It has been suggested that the individuals must be listed to assist the Council in knowing whether or not potential conflicts existed.  In reality this is a specious argument.  A conflict would only be revealed if it happened to be that specific individual that had given a gift or provided some other financial benefit.  If a financial benefit came from anyone else in the company, such disclosure would do nothing to assist the Council or others in being aware of a possible conflict.  The best guide to a potential conflict is the name of the company itself.

For any number of reasons the subject companies may not want their individual employees named on the City�s agenda, including that they certainly wouldn�t want individual citizens contacting them to express their views on the potential agreement.  That is something the Council and other public officials accept by virtue of serving the public.  It is not something that private entities must face because they do business with the public.

It is recommended that the disclosure of information on the agenda relating to real property negotiations remain as specified by the �Safe Harbor� provisions of the Brown Act.

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