III. MEETING CATEGORIES -- OPEN OR CLOSED.

Both Acts expressly state that unless specifically provided for in the open meeting acts and other specifically designated statutes, no closed session may be held by any state body or legislative body of any local agency. Cal. Gov't Code §§ 11132 (Bagley-Keene Act); 54962 (Brown Act).

The California Constitution requires the court to "narrowly construe" the closed session exemptions to the open meeting provisions. See Cal. Const., Art. I., § 3(b)(2) ("[a] statute . . . shall be . . . narrowly construed if it limits the right of [public] access" to government records and proceedings).

Under the Brown Act, the legislative body may not stray into topics not listed on the agenda and not expressly permitted for closed session, even if those topics are "reasonably related" to the posted agenda item or topic permitted for closed session. Cal. Gov't Code § 54956 (" No other business shall be considered at these meetings by the legislative body."); Shapiro v. San Diego City Council, 96 Cal. App. 4th 904, 924, 117 Cal. Rptr. 2d 631 (2002).

In Shapiro, the San Diego City Council stated on its agenda that it would meet in closed session to discuss real estate negotiations — which are permitted for closed session — for a new baseball stadium. Id. at 908. But the City Council moved beyond the real estate negotiations topic, and discussed a wide variety of related topics, including the architectural design for the stadium, an environmental impact report, traffic issues, naming rights, and the impact the project would have on the homeless. Id. at 923-24. The City argued that the Brown Act permitted such "background deliberations" because they were "reasonably related" to the real estate negotiations listed on the agenda. Id. at 922. But the Court of Appeal disagreed, holding that the City Council violated the Brown Act when its deliberations "range[d] far afield" of the listed agenda item. Id. at 924.

The litigation provision is most likely to be abused by legislative bodies. As the California Attorney General has instructed, "[i]t should also be emphasized that the purpose of [pending litigation] exception is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation decisions." The Brown Act: Open Meetings for Local Legislative Bodies (Cal. Att'y Gen. 2003 ed.) at 40, citing 71 Ops. Cal. Att'y Gen. 96, 104-105 (1988).