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Council members wary of revealing strategy in pollution lawsuit

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Posted: Tuesday, August 20, 2002 10:00 pm

If the Lodi City Council takes up the possibility of getting a second opinion in its high-profile pollution lawsuit, should those talks be public or behind closed doors?

The city attorney and some members of the council say the discussion must be private to avoid giving legal advantage to the opposition.

But an expert in the field of open meeting law and one council member say otherwise, maintaining that the discussion should properly be held before a public audience.

The question appears to fall into legal gray zone, with each side taking different interpretations of the Brown Act, the state law governing public access to meetings.

The city is suing local businesses and their insurers, hoping to make insurance companies pay to clean up widespread pollution. The News-Sentinel and Guild Cleaners are among those named in the original federal case filed in November 2000.

But after millions have been spent on the litigation that started more than five years ago, Vice Mayor Susan Hitchcock has called publicly for a second opinion on the way the lawsuit it being handled.

She was told it would have to be heard in closed session, which means the public is not invited.

According to a specialist in this field of law, the seeking of such an opinion should be discussed openly, as long as it does not give away tactics or strategy.

Jim Ewert, an attorney for the California Newspaper Publishers Association, said he sees nothing in state law that would allow the City Council to seek a second opinion in a closed session.

"The only time they can go into closed session is if they're seeking legal advice," he said. He said the decision to move the discussion behind doors is "a political decision, not a legal one."

The Ralph M. Brown Act, a law that governs the public's access to meetings and documents, describes issues which can be heard in closed session. It includes labor negotiations and other personnel discussions. Closed sessions are permitted if discussion of a legal case in open session would prejudice the body's position.

"The pending litigation exemption permits the body to go into closed session to discuss with its legal counsel situations that could give rise to litigation. But here, none of that comes into play," Ewert said. "When it comes to the point of whether to seek a second opinion, it would be appropriate for them to adjourn into open session and make that decision. The underlying issue is whether to hire an additional attorney to get a second opinion."

Hitchcock, who in the past has voiced concerns about the way the litigation is being handled, maintains that she believes the discussion of obtaining a second opinion should be held at a public meeting because it is not discussing the case's strategy.

"If you're discussing the actual legal strategy, it should be in closed session. But if it's just a matter of discussing if we like the way this is going, it should be in public."

Councilman Alan Nakanishi wants all litigation issues discussed in closed session.

"When a City Council member speaks up, I find the defense uses it in their arguments. It just costs the city money," he said. "As far as getting a second opinion, some think it might be wise. But I'm not going to initiate it. The council members in 1997 made a decision … to stop right now would cost the city a lot more money."

Hitchcock disagrees.

"We need a second opinion because we've spent so much money," she said. "I think the cost of that would be minuscule since we have spent $15 million. It's just something that needs to be done. It's a small price to pay for the comfort," she said. "It has to do with the amount of money we're paying, not the strategy. I don't understand why that would be a closed session."

Mayor Phil Pennino at a City Council meeting earlier this month recommended the discussion be set for a closed session.

"We are in litigation," he said. "We have a strategy that has been approved by the council."

City Attorney Randy Hays agreed that a discussion of a second opinion must be in a closed session.

"In order to thoroughly discuss the need for additional opinions, we would be placed in the position of discussing the strategy," he said. "I will counsel against the City Council discussing that in open session."

Pennino is worried if information is discussed openly during regular public meeting, defense attorneys will use the information to their advantage.

Councilwoman Emily Howard has similar feelings.

"A request for a second opinion makes it clear you're not happy with the direction things are going or with the leadership. The discussion around that would include strategy," she said. "When you open something up to the public, it allows them to provide input. But in this case, there is strategic planning that needs to be discussed in closed session first."

Ewert said the City Council would be free to discuss in closed session, in the future, the information received from a second counsel should the members decide to do that.

"But they're not going to be discussing that with legal counsel," he said. "That decision is going to require a discussion of things that may bleed over into the existing litigation, but again, there are some things that can be discussed publicly that wouldn't prejudice the city.

"If they want to discuss with their city attorney the merits of the case and the merits of seeking a second opinion, that's probably OK in closed session. As far as making the decision to go forward with that second opinion, that has to be in open session."

But Councilman Keith Land said getting a second opinion is considered strategy because the City Council members would be second guessing themselves and deciding if they're happy with how the case is currently being handled.

"Whenever we're in litigation, the other side is not disposing their strategy to us. What we have is a good plan," Land said.

"We already have second and third opinions," he said, referring to attorneys from Lehman Bros., the financial backers of the lawsuit, who examined the case. Private contract attorney Michael Donovan is also considered a second opinion.

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