Many residents were disappointed to discover at the August 18 Coronado City Council meeting that comments and discussion related to the possibility of Coronado joining Imperial Beach in its impending lawsuit against the International Boundary Waters Commission (IBWC) would be held in closed session (or not at all, since residents were reportedly warned that the items for discussion at the closed session had not been announced).
While the topic of the lawsuit and the potential for Coronado to join it is newsworthy in itself, the question arose as to why closed sessions are used to discuss topics in City Council meetings. Or, to put it differently, why is the public not allowed to be privy to all topics of discussion among their elected representatives?
A review of the City Council agendas over the course of 2017 indicates that closed sessions are used variously to discuss named and unnamed items. A named item, for instance, would be when the City Council discusses “public employee performance evaluation,” as it did in the August 15 meeting. Another regular instance of a closed discussion of a named item happened in the June 20 meeting where “conference with labor negotiators” appeared as a closed session agenda item. Likewise, there are times when the City Council discusses named litigation, as it did on June 6 when the existing litigation cases California-American Water Company Water Rate Application and City of Coronado v. San Diego Local Agency Formation Commission appeared on the closed session agenda.
However, unnamed items also appear on closed session agendas. These appear to be primarily concerned with potential, rather than existing, litigation. So, for instance, in the April 4 meeting, the item “conference with legal counsel – anticipated litigation” appeared on the agenda. While the topic or parties of the anticipated litigation were not named, the number of cases (1) and the Government Code Section were.
Why would the City Council and Mayor choose to be opaque in these discussions if they are, in fact, meant to be responsible to their constituents? When asked, Mayor Bailey was clear on this, “Whenever the city is engaged in some form of litigation where, for example, someone may sue the city and seek a settlement, rather than discuss our legal strategy in a public forum, we’d do that in closed session … [The reason is] to protect our own legal strategy and to protect the best interest of our residents … our taxpayers.”
The Mayor also pointed out that if a decision is reached to either pursue litigation, or if a potential suit, for example, against the city becomes reality, then they become a matter of public record. Likewise, if potential litigation is discussed in closed session, he said, “If we do make a legal decision, we do let the public know … In cases that are of pretty significant public interest, usually through the City Manager’s report.” [Note: the City Manager’s Weekly Update is released each Friday at noon on the City of Coronado website.]
Since the closed session topics appear primarily related to potential litigation, the extent to which Coronado might be subject to more of it than other cities or more of it over time appears to be related to the prevalence of such litigation in general.
None of this answers the question of whether Coronado will join Imperial Beach’s impending lawsuit against the IBWC. The agenda for the September 5 meeting has now been released and this topic is not included. So, if it is being discussed, it would have to be in closed session. However, given the level of public interest, if it is discussed in closed session and a decision is made, it would seem that we can expect to hear about it either in a future meeting or in the City Manager’s report.
Update from Councilman Whitney Benzian regarding the September 5th closed session:
Below is a summary of the actions my colleagues and I took today at City Council regarding the ongoing sewage crisis at the border.
I am pleased to report Coronado took important steps to ensure the residents of Coronado, Imperial Beach and all San Diegans will be able to swim, surf and recreate in clean water every day of the year.
Almost any changes to the IBWC-owned San Ysidro sewage treatment plant as a result of a successful litigation or settlement will require funding and approvals from a variety of federal and state agencies. Congress will also need to be involved to drive the federal agencies and to pass any needed legislation enabling changes.
Given the above, the City Council directed the City Manager and City Attorney to bring the following for City Council consideration at an open session in the near future:
• Update Legislative Guidelines;
• Prepare RFP for professional consultants to effectuate funding approvals from Congress and variety of federal and state agencies; and
• Draft participation agreement between Coronado and Imperial Beach to effect changes to the IBWC-owned San Ysidro sewage treatment plant.
The City Council will continue to update the public accordingly with any further developments.