A Los Angeles Superior Court Judge yesterday ruled, in a case brought by Californians Aware against the Pasadena Community College (PCC) district board, that the board violated the Brown Act last year when it failed to spell out what “existing facts and circumstances” created a “significant exposure to litigation” against the district to warrant a closed session with counsel.  The unprecedented penalty: an order declaring null and void the board’s $400,000 plus severance payment to the college’s outgoing President/Superintendent, Dr. Mark Rocha.

The Brown Act’s normally required disclosure of who has created a litigation threat against against the local agency—and why— in order to warrant a closed door consultation with legal counsel can be disregarded if the body asserts that those facts and circumstances are not yet known to the potential plaintiff, i.e. that revealing them might tip the potential plaintiff off that he, she or it has an actionable grievance.  The PCC’s legal counsel took this route in refusing to identify the threatening facts and circumstances justifying two closed sessions August—falsely, as it turns out, since the potential plaintiff, Dr. Rocha, already knew those facts and circumstances, having created them by quietly threatening to sue for defamation based on some unflattering remarks allegedly made by one of the trustees.

The legal counsel’s refusal to disclose that much—that Rocha had threatened to sue on those grounds—was an indisputable Brown Act violation, Judge Joanne O’Donnell concluded in the tentative ruling prompting her order nullifying the board’s decision to pay Rocha more than $400,000 to settle his defamation claim, and directing the board and Rocha to correct that violation and report back to the court.  The board’s choice is to either appeal the judge’s decision or re-do the settlement award—this time with full disclosure of the facts justifying it, allowing the public to comment before the action is repeated.

Judge O’Donnell’s voiding of the severance agreement appears to be the first instance of such a sanction against a local body for having acted in violation of the Brown Act.

The judge found that CalAware’s other major complaint—that the settlement payout was actually a compensation matter which should have been approved publicly—was inapplicable, since there clearly was a litigation threat.  But the decision was probably sufficient to warrant payment by the college district to CalAware of its court costs and attorney’s fees.  It was also a clear warning to other local bodies to avoid offering bogus reasons for withholding information the public is entitled to, and more specifically, for failing to reveal the facts justifying a closed litigation session when the potential plaintiff is fully aware of them.  Doing just that appeared to be a habit of the PCC board at prior meetings, CalAware alleged.

Litigating for CalAware was Kelly Aviles, its Vice President for Open Government Compliance. Coincidentally her father, the late Richard McKee, retired several years ago from his longtime post as professor of chemistry at PCC, after co-founding CalAware and serving as its first president.