While discussing a proposed downtown baseball stadium and adjoining redevelopment project, the San Diego City Council repeatedly violated the California open meeting law because the council's descriptions of closed door negotiations were too general and because some topics should have been discussed in public, the Fourth District Court of Appeal has ruled. The appellate court also ruled that a trial court judge was correct to issue an injunction detailing how the council should comply with the law in the future. The unanimous three-judge panel upheld the decision of Superior Court Judge Judith McConnell (who has since been elevated to the appellate bench) that the city failed to adequately describe closed-session topics on its agenda and that the council improperly discussed side issues not on the agenda during private sessions. Both the appellate court and McConnell found that the City Council violated the letter and the spirit of the Brown Act open meeting law in the past and appeared unwilling to change its practices. "The City Council is attempting to use the Brown Act as a shield against public disclosure of its consideration of important public policy issues, of the type that are inevitably raised whenever such a large public redevelopment real estate transaction is contemplated," Justice Richard Huffman wrote for the appellate panel. In November 1998, voters approved Proposition C, which authorized the city, the redevelopment agency and the Padres baseball team to enter into a partnership to build a new stadium and to redevelop the surrounding area (see CP&DR Places, January 2002). Proposition C also provided for substantial city bond funding to build the ballpark. Passage of the ballot measure, however, appeared to increase the level of controversy regarding the proposed stadium and the city's funding of it — a political conflict that had simmered for years. Soon, the City Council's implementation of Proposition C came under scrutiny, and project detractor Melvin Shapiro filed a lawsuit. Shapiro alleged that the City Council's posted agendas for 18 closed sessions from December 1998 through October 1999 did not comply with the Brown Act (Gov. Code § 54950 et seq.) because the agendas did not designate specific parcels under consideration or describe what transaction was being considered. In 16 of the instances the agendas stated: "In the matter of authorizing the city manager to negotiate with designated representatives from the San Diego Padres and the San Diego Unified Port District regarding real property interests in the East Village area of downtown San Diego, and at Qualcomm Stadium in the City of San Diego." Twice, the agendas were less descriptive. Shapiro also claimed that City Council discussions strayed from the scope of the agendas. During a trial, Judge McConnell privately examined confidential minutes of the closed City Council meetings before she ruled for Shapiro. She ruled that the Brown Act required the city to identify separate items of business to be discussed, that the agenda must name the negotiators involved, and that the City Council must provide those names in open session before going behind closed doors. McConnell also found 10 instances when the City Council discussed topics that should have been addressed in public. Those topics included transient occupancy tax, architectural design work, parking, the need to hire a project director, an environmental impact report, financing, naming the ballpark and the project's impact on homeless people. McConnell then issued a detailed injunction for how the City Council must comply with the Brown Act. The City Council agreed to post more detailed agendas. But the council still appealed McConnell's decision, saying she lacked a legal or factual basis for the injunction. The council also argued that McConnell insisted on more disclosure than required under the Brown Act's "safe harbor provision," and that the council should be able to discuss matters "reasonably related" to posted agenda items. The Fourth District upheld McConnell's decisions, ruling that the injunction was proper, that the City Council's reading of the safe harbor provision was too broad, and that councilmembers should stick to the agenda. The injunction was necessary because the Brown Act violations were a continuing practice, Justice Huffman wrote. "[S]o long as the allegations and proof of the legislative body's practices extend to ‘past actions and violations that are related to present and future ones,' the Brown Act provisions are brought into play to authorize and justify injunctive relief. That is the case here, where the City Council has staked out a position that the trial court had no authority to prescribe the manner in which it should comply with the Brow Act. … Also, the City Council continues to resist any judicial direction not to discuss topics in closed sessions which go beyond instructions to its negotiators regarding purchase or sale price and terms of payment [for] specific real property," Huffman wrote. Next, the court addressed the Brown Act's safe harbor provision (Gov. Code § 54954.5), which sets minimum standards for what the City Council must disclose from closed sessions. "The City Council contends that simply because the ballpark project is a complex real estate based transaction, many complex issues will inevitably arise, and it cannot reasonably be foreseen when or where they will require discussion," Huffman wrote. That view, the court ruled, is inconsistent with the Brown Act's disclosure requirements. The City Council must identify a specific transaction regarding a specific piece of real estate. "A negotiator has to be pursuing some specific transaction, which itself is the subject item of business that should be disclosed. A negotiator does not negotiate in a vacuum," Huffman wrote. As for the discussion of related topics in closed session, the court said it recognized the practical need — and the legal authority — to conduct real estate negotiations in private. But the court ruled the City Council discussions had gone too far afield. "The City Council cannot claim substantial compliance under the safe harbor provisions of § 54954.5, subdivision (b), when its anticipated project discussions exceed the scope of the safe harbor provisions, and do not involve a specific and identifiable piece of property under discussion, but rather range far afield of a specific buying and selling decision that the negotiator is instructed to work toward," Huffman wrote. "If we were to accept the City's interpretation of the Brown Act in this respect, we would be turning the Brown Act on its head, by narrowly construing the open meeting requirements and broadly construing the statutory exemptions to it." The Case: Melvin Shapiro v. San Diego City Council, No. D037323, 02 C.D.O.S. 2142, 2002 DJDAR 2627. Filed March 5, 2002. The Lawyers: For Shapiro: Charles Wolfinger, (858) 272-8115. For the City Council: Leslie Girard, assistant city attorney, (619) 533-5800.