Council closed session illegal?
Tonight, the City Council/Alameda Reuse and Redevelopment Authority/Community Improvement Commission is set to hold a closed-door meeting to talk about the terms of an agreement between presumptive Alameda Point developer SunCal Companies and D.E. Shaw, the New York hedge fund SunCal hopes to partner with on the project. But at least one free speech advocate we talked with indicated the closed-door discussion may not comply with the state’s open meeting law.
City attorney Teresa Highsmith says the session is legal under a Brown Act provision exempting real estate negotiations from public meeting requirements. She says the terms of the agreement between SunCal and D.E. Shaw will ultimately affect the terms of the purchase of Alameda Point.
But Terry Francke, an attorney and longtime free speech advocate who now heads Californians Aware, says the Brown Act would only allow the city to close its doors to the public in this case if leaders are meeting specifically to discuss the price and terms for the purchase, sale, lease or exchange of the land. And he says 2004’s Proposition 59 requires the city to interpret exceptions to open meeting laws narrowly.
The test for inclusion in closed session discussion is not whether an issue is relevant to, or might somehow affect, the city’s interests in a given negotiation. The test is whether the closed session is “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.”
Even the council – which had to fight SunCal to get a copy of the agreement – has stated concerns about discussing this behind closed doors. It debated this very issue two months ago when this deal between SunCal and D.E. Shaw was first discussed. (Marie Gilmore, who we believe is one of the two lawyers on the council, said the agreement could be discussed in closed session, per the minutes of the meeting; Frank Mattarese and Douh deHaan wanted the document and the discussion to be in public.)
A number of details about the deal between SunCal and D.E. Shaw are laid out in a staff report referenced in our earlier item here.