Orange to Drop Questionable Closed Session Items

Wayne Winthers, city attorney for Orange, said Tuesday he would end a practice of listing an open item for the City Council to take action in closed session on issues that aren’t disclosed in meeting agendas.

Winthers’ announcement came in response to a Voice of OC article on Monday pointing out that the vague description appears to conflict with the Ralph M. Brown Act.

“I can see why some might read that and say, ‘Why is that there?’ ” said Winthers, adding that council members haven’t actually had discussions under that provision since he became city attorney in July 2012.

For years, the city’s closed session agendas have been stating that the council would “consider and take possible action upon such other matters as are orally announced” before going into closed session.

Winthers said the city will no longer include the open-ended descriptions, which have been part of the agendas since before he became city attorney.

Open-government expert Terry Francke took issue with the open-ended description, saying it’s not permitted under the Brown Act.

“That kind of meaningless language does not comply with the specificity required by the Brown Act,” said Francke, general counsel at Californians Aware and Voice of OC’s open-government consultant.

The Brown Act requires that agendas provide a description of closed session items that is “sufficient to provide interested persons with an understanding of the subject matter which will be considered,” according to the state attorney general’s office.

If the council were to discuss a non-agendized issue in closed session, it would have to be done as part of an emergency or other exception and announced at the meeting, said Winthers.

That emergency exception would only apply when an issue comes to the attention of the city after the agenda is released and needs to be acted on before the following meeting, he said, adding that he didn’t know of any time it’s been invoked in Orange.

“We have never, that I’m aware of, ever done anything in closed session that was an emergency-type item,” said Winthers.

“We certainly think that people have the right to know” what the council will discuss, Winthers added.

Winthers was preceded as city attorney by David DeBerry, who held the position for 15 years and is now an attorney with Woodruff, Spradlin & Smart.

DeBerry was also hired as the contract city attorney for Diamond Bar in April.

You can reach Nick Gerda at, and follow him on Twitter: @nicholasgerda.

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