Commentary: Leaking information from closed session violates trust

During the Costa Mesa City Council meeting March 3, Councilwoman Katrina Foley became livid because she believed another council member, Gary Monahan, revealed information about the police officers’ contract offer that was discussed during closed session.

Foley said that by leaking the information, Monahan had “degraded” the process.

She also took issue with city attorney Tom Duarte, who she thought gave the wrong advice in response to her questions about Monahan’s disclosure.

Monahan defended himself by stating that his comments were allowed because the information could have been found in payroll records and that the public has the right to know about our police officers’ pension contributions.

Foley’s anger was justified.

This episode demonstrates the tension between transparency and secrecy in government affairs and other walks of life. While it’s tempting to favor transparency over confidentiality, both serve important functions.

The argument for transparency is simple: The taxpayer has the right to know how his city is governed and how his taxes are spent.

The case for secrecy is more nuanced.

Laws and social norms establish many relationships in which communications are kept secret such as attorney/client, physician/patient, husband/wife and clergy/penitent.

People in these relationships must candidly exchange information without fear of disclosure. Without this secrecy, an attorney could not effectively advise her client.

Transparency is the norm in most matters before the City Council because the Brown Act, a state law, generally requires open meetings.

However, about a dozen topics, including labor negotiations, may be discussed in closed session. Under the California Government Code, a person may not disclose confidential information that has been acquired during a closed session without specific authorization.

Under the code, “confidential information” means “a communication made in a closed session that is specifically related” to the basis for the meeting. Confidential information, therefore, covers much more than communications with attorneys.

The purpose for closed-session confidentiality is to allow council members and others to speak freely without worrying about leaks. Leaks chill the open communication necessary to make sound decisions. To Foley’s point, leaks degrade the decision-making process and lead to mistrust and eventually bad decisions for Costa Mesa.

As a practical matter, the toothless penalties for leaking closed-session communications are not an effective deterrent. We have to trust our council members to follow the rules. Monahan violated that trust on March 3, and Foley correctly called him on it.

Duarte’s statements that night were convoluted. He mixed up the attorney-client privilege with closed-session confidentiality. Duarte should not have been looking for a loophole to defend Monahan. He should have provided straightforward advice on the council members’ obligations. And Monahan should have erred on the side of confidentiality instead of letting the cat out of the bag.

Ironically, in other contexts, such as the city’s 60th anniversary debacle, Costa Mesa has used privileges to withhold information from the public. A double standard seems to apply when a member of the council majority wants to leak confidential information to serve the majority’s political agenda.

We deserve better from our council members and our city attorney than we received on March 3.

Attorney JOHN STEPHENS lives in Costa Mesa.