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Home My WebLink About98.04-26-2017 Board Supplemental ONLINE Agenda.pdf Orange County Sanitation District Wednesday, April 26, 2017 Regular Meeting of the 6:00 P.M. BOARD OF DIRECTORS Board Room 10844 Ellis Avenue Fountain Valley, CA 92708 (714)593-7433 SUPPLEMENTAL AGENDA The following item will be added to the Agenda: NON-CONSENT ITEMS: 14. CLOSED SESSION ATTENDANCE BY DIRECTORS SERVING ON THE BOARD OF AN ADVERSE PARTY (Jim Herberg) RECOMMENDATION: Adopt Resolution No. OCSD 17-07, entitled: "A Resolution of the Board of Directors of the Orange County Sanitation District Establishing Requirements for Attendance at Closed Sessions by Directors Who Simultaneously Serve on the Governing Body of an Adverse Party". I hereby certify under penalty of perjury under the laws of the State of California that the foregoing Supplemental Agenda was posted outside the main gate of the District's Administration Building located at 10844 Ellis Avenue, Fountain Valley, California not less than 72 hours prior to the meeting. Dated this 2Vt day of April 2017. %q,9A� Kell A. o e Cle c o th Board BOARD OF DIRECTORS Meeting Dare TO Bd.of Dir. -- 09/26/17 AGENDA REPORT ern Number Item Number 14 Orange County Sanitation District FROM: James D. Herberg, General Manager SUBJECT: CLOSED SESSION ATTENDANCE BY DIRECTORS SERVING ON THE BOARD OF AN ADVERSE PARTY GENERAL MANAGER'S RECOMMENDATION Adopt Resolution No. OCSD 17-07 entitled: "A Resolution of the Board of Directors of the Orange County Sanitation District Establishing Requirements for Attendance at Closed Sessions by Directors Who Simultaneously Serve on the Governing Body of an Adverse Party". BACKGROUND An Orange County Sanitation District (Sanitation District) Director may serve on the governing body of another agency, even if the interests of the two agencies may occasionally conflict, as long as the dual capacity in question is compelled or expressly authorized by law. In legal terms, a Director may simultaneously serve on the boards of agencies with potentially conflicting interests as long as the Legislature has "abrogated" the common law doctrine of"incompatible offices" as to the particular offices in question. Each Sanitation District Board member, for example, simultaneously serves on the governing body of his or her member agency. Some Sanitation District Board members also simultaneously serve on the governing boards of other agencies, as authorized by law. At the same time, Government Code Section 1126 allows an agency to declare that specific types of activities by Board members are "inconsistent, incompatible, in conflict with, or inimical to" his or her duties as a Board member. Pursuant to the Brown Act, the Sanitation District Board can, and regularly does, meet in closed session with legal counsel to discuss potential and pending litigation. The ability to meet in closed session protects the Sanitation District's interest by encouraging open and frank discussions between the Board and legal counsel outside the presence of the adverse party. This interest could be severely compromised if an adverse party were to gain access to closed session discussions. On occasion,the adverse party in any potential or pending litigation may be another public agency. On rare occasion, one or more Sanitation District Board members may also serve on the governing body of this adverse party. In such an event, in order to protect the Sanitation District's attomey-client communications from disclosure to the adverse party, each Board member who sits on the governing body of the adverse party should either (1) refrain from attending the Sanitation District closed session, or (2) disqualify himself or herself from acting on the matter in any way in his or her capacity as a member Page 1 of 3 12399 8.1 of the governing board of the adverse agency. The Sanitation District Board may, by resolution, establish this rule pursuant to Government Code Section 1126. RELEVANT STANDARDS • Government Code Section 1126 PROBLEM If a Sanitation District Board member simultaneously serves as a member of the governing board of an adverse party, and the Board member attends a closed session of the Sanitation District Board to discuss potential or actual litigation with that adverse party, the Sanitation District's interests could be severely compromised. PROPOSED SOLUTION Adopt Resolution 17-07 requiring each Director who sits on the governing body of an adverse party to either (1) refrain from attending Sanitation District closed sessions, or (2)disqualify himself or herself from acting on the matter in any way in his or her capacity as a member of the governing board of the adverse agency. TIMING CONCERNS A closed session item regarding anticipated litigation is on the agenda for the Board meeting of April 26, 2017. Some Sanitation District Board members simultaneously serve on the governing body of the adverse party. RAMIFICATIONS OF NOT TAKING ACTION The Sanitation District's interest in any potential or actual litigation with an adverse party could be severely compromised if a member of the governing board of the adverse party were permitted to attend the Sanitation District's closed session. PRIOR COMMITTEE/BOARD ACTIONS N/A ADDITIONAL INFORMATION The attorney-client privilege, a "hallmark of Anglo-American jurisprudence for almost 400 years,' protects the rights of clients to "freely and fully confer and confide in one having knowledge of the law, and skilled in its practice." Soin v. O'Melveny& Meyers (2001) 89 Cal.App.411 451, 456-457. If attorney-client communications were disclosed to the adverse party, a public agency's lawyer could not provide effective legal counsel. In any particular case, a lawyer must advise his or her client on, among other things, the strengths and weaknesses of the case and the parameters of possible settlement. Roberts v. City of Palmdale(1993)5 Cal. 41h 363, 373. If the adverse party had a"ringside seat" to these discussions, the client's interest would be severely compromised. Sutter Page 2 of 3 123948.1 Sensible Planning, Inc. v. Sutter County Board of Supervisors (1992) 122 Cal. App. 3d 813. CEQA N/A FINANCIAL CONSIDERATIONS N/A ATTACHMENTS The following attachment(s)are included in hard copy and may also be viewed on-line at the OCSD website (www.ocsd.com) with the complete agenda package: • Resolution No. OCSD 17-07 (hard copy will be provided at the meeting) Page 3 of 3 123948.1 RESOLUTION NO. OCSD 17-07 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE ORANGE COUNTY SANITATION DISTRICT ESTABLISHING REQUIREMENTS FOR ATTENDANCE AT CLOSED SESSIONS BY DIRECTORS WHO SIMULTANEOUSLY SERVE ON THE GOVERNING BODY OF AN ADVERSE PARTY WHEREAS, pursuant to the Brown Act, the Orange County Sanitation District (the "District")Board of Directors(the"Board")can, and regularly does, meet in closed session with legal counsel to discuss potential and pending litigation. The ability to meet in closed session protects the District's interest by encouraging open and frank discussions between the Board and legal counsel outside the presence of the adverse party; and WHEREAS, each District Board member simultaneously serves on the governing body of his or her member agency. Some District Board members also simultaneously serve on the governing bodies of other agencies, as authorized by law; and WHEREAS, on rare occasion, potential or pending litigation may involve another public agency whose governing board includes one or more District Board members; and WHEREAS, the District's interest in any potential or pending litigation could be severely compromised if a member of the governing body of an adverse party were to attend a District closed session and thereby obtain confidential attorney-client communications regarding the case; and WHEREAS, the Board desires to protect the District's interest by prohibiting the attendance at closed session of any Director who sits on the governing body of the adverse party, unless the Director disqualifies himself or herself from any involvement in the matter in his or her capacity as a member of the governing board of the adverse party; OCSD 17-07-1 124M14.1 NOW, THEREFORE, the Board of Directors of the Orange County Sanitation District, DOES HEREBY RESOLVE, DETERMINE AND ORDER: Section 1. In the event that the District Board holds one or more closed sessions to discuss potential or pending litigation with an adverse party, any Director who serves on the governing board of the adverse party shall not attend the closed sessions unless and until he or she makes the election described in Section 2. Section 2. Any Director who serves on the governing board of an adverse party with respect to potential or pending litigation may elect to disqualify himself or herself from any involvement in the matter whatsoever in his or her capacity as a member of the governing board of the adverse party. Without limiting the foregoing, any Director who makes this election shall not, in his or her capacity as a member of the governing board of the adverse party, vote on the matter, attend open or closed session on the matter, discuss the matter with any officials or employees of the adverse party orally or in writing, or attempt to influence the adverse party's actions relating to the matter. PASSED AND ADOPTED at a regular meeting held April 26, 2017 Gregory C. Sebourn, PLS Board Chairman ATTEST: Kelly A. Lore, CMC Clerk of the Board APPROVED AS TO FORM: Bradley R. Hogin General Counsel Orange County Sanitation District OCSD 17-07-2 124M14.1 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) I, Kelly A. Lore, Clerk of the Board of Directors of the Orange County Sanitation District, do hereby certify that the foregoing Resolution No. OCSD 17-07 was passed and adopted at a regular meeting of said Board on the 26th day of April 2017, by the following vote, to wit: AYES: NOES: ABSTENTIONS: ABSENT: IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of Orange County Sanitation District this 26th day of April 2017. Kelly A. Lore, CIVIC Clerk of the Board of Directors Orange County Sanitation District OCSD 17-07-3 124M14.1