OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

: 

OPINION : No. 89-903 

: 

of : 

: 

January 9, 1990 

JOHN K. VAN DE KAMP : 

Attorney General : 

: 

ANTHONY S. DA VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE JAMES P. FOX, DISTRICT ATTORNEY, COUNTY 

OF SAN MATEO, has requested an opinion on the following question: 

Would the adoption by the Midpeninsula Regional Open Space District of a 

resolution listing all parcels of real property larger than twenty acres within its planning area 

as the potential subject of negotiation for purchase satisfy the disclosure prerequisite for a 

closed session regarding the purchase of any one or more of such parcels? 

CONCLUSION 

The adoption by the Midpeninsula Regional Open Space District of a 

resolution listing all parcels of real property larger than twenty acres within its planning area 

as the potential subject of negotiation for purchase would not satisfy the disclosure 

prerequisite for a closed session regarding the purchase of any one or more of such parcels. 

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ANALYSIS
 

A regional open space district is a public agency created pursuant to law 

(§§ 5500, 5501)1

, and governed by a legislative body consisting of a board of directors 

(§§ 5527, 5537). A district is comprised of contiguous territory of three or more cities, or of 

one or more cities having a combined population of 50,000. A district may operate and 

maintain a system of public parks and open space preserves for public recreation, use, and 

enjoyment, and for such purposes may select, designate, and acquire land. (§ 5541.) A district 

may acquire the land by grant, purchase, or condemnation. (§§ 5540, 5542, 5544.2.) 

The Midpeninsula Regional Open Space District was created in 1972, 

consisting of a precisely defined 330 square mile area south of San Francisco and northwest 

of San Jose. More than 30,000 acres of large, undeveloped or sparsely developed parcels of 

foothill and bayland open space adjacent to urbanized areas have been acquired. The 

Midpeninsula board of directors conducts a meeting twice monthly, in each of which a closed 

session is held. In each such closed session, a prescheduled list of one to five specific parcels 

is considered for purchase. The district has prepared a list, updated annually, of 

approximately 700 parcels that might be discussed at any time during the year, with specific 

criteria so that owners will know whether their properties may be considered. The list 

consists of properties within the district’s planning area that are larger than twenty acres. 

Only a small percentage of the listed parcels are discussed in one year. Thus, the fact that a 

parcel is on the list does not in any way indicate an interest in the property, but rather that the 

property could possibly be discussed in a closed session during the year. Negotiations with 

an owner may transpire in this respect without the knowledge and interference of third 

parties, e.g., real estate brokers, developers, and competitive bidders. 

We are asked whether the listing by the district of all parcels of real property 

larger than twenty acres within its planning area satisfies the disclosure prerequisite for a 

closed session regarding the purchase of any one or more of such parcels. Section 5535 

provides that all legislative sessions of the board, which shall be held at least once each 

month, shall be open to the public. However, section 5536, subdivision (b), provides that a 

“meeting”, for purposes of per diem, includes closed sessions of the board. 

We have recently reviewed the basic tenets of the principal statute governing 

the conduct of open meetings of local agencies. (71 Ops.Cal.Atty.Gen. 96 (1988).) The 

public policy underlying the Ralph M. Brown Act is expressly declared at the outset (Gov. 

1

Unidentified statutory section references herein are to the Public Resources Code, unless otherwise 

noted. 

2
 
Code § 54950).2 

“In enacting this chapter, the Legislature finds and declares that the 

public commissions, boards and councils and the other public agencies in this 

State exist to aid in the conduct of the people’s business. It is the intent of the 

law that their actions be taken openly and that their deliberations be conducted 

openly. 

“The people of this State do not yield their sovereignty to the agencies 

which serve them. The people, in delegating authority, do not give their public 

servants the right to decide what is good for the people to know and what is 

not good for them to know. The people insist on remaining informed so that 

they may retain control over the instruments they have created.” 

Section 54953, subdivision (a), contains the principal operative provision of the Act: 

“All meetings of the legislative body of a local agency shall be open 

and public, and all persons shall be permitted to attend any meeting of the 

legislative body of a local agency, except as otherwise provided in this 

chapter.” (Emphasis added.) 

The board of directors of a regional open space district is a “legislative body” within the 

meaning of section 54952:

 “As used in this chapter, ‘legislative body’ means the governing board, 

commission, directors or body of a local agency, or any board or commission 

thereof, and shall include any board, commission, committee, or other body on 

which officers of a local agency serve in their official capacity as members and 

which is supported in whole or in part by funds provided by such agency, 

whether such board, commission committee or other body is organized and 

operated by such local agency or by a private corporation.” 

(And see, Pub. Resources Code, ¶ 5537: “The board of directors is the legislative body of the 

district and shall determine all questions of policy.”) Further, a district is a “local agency” 

within the meaning of section 54951: 

“As used in this chapter ‘local agency’ means a county, city, whether 

general law or chartered, city and county, town, school district, municipal 

2

Hereafter, all undesignated section references are to the Government Code. 

3
 
corporation, district, political subdivision, or any board, commission or agency 

thereof, or other local public agency.” (Emphasis added.) 

Two additional sections may be pertinent to this analysis. Section 54958 

provides that: 

“The provisions of this chapter shall apply to the legislative body of 

every local agency notwithstanding the conflicting provisions of any other 

state law.” 

Section 54962 provides: 

“Except as expressly authorized by this chapter, . . . no closed session 

may be held by any legislative body of any local agency.” (Emphasis added.) 

We are now prepared to consider whether section 54956.8 constitutes such an 

express authorization. That section provides as follows: 

“Notwithstanding any other provision of this chapter, a legislative body 

of a local agency may hold a closed session with its negotiator prior to the 

purchase, sale, exchange, or lease of real property by or for the local agency 

to give instructions te its negotiator regarding the price and terms of payment 

for the purchase, sale, exchange, or lease. However, prior to the closed session, 

the legislative body of the local agency shall hold an open and public session 

in which it identifies the real property or real properties which the 

negotiations may concern and the person or persons with whom its negotiator 

may negotiate. 

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .” 

This statute authorizes the holding of a closed session by a local agency for the purpose of 

giving instructions to its negotiator regarding the price and terms of purchase of real 

property, provided that the agency first identify in open session the property or properties 

which the negotiations may concern. It has been suggested that the phrase “real properties 

which the negotiations may concern,” is a proper reference to the whole universe of 

properties which the agency is permitted by law to consider for purchase. Under this 

interpretation, the district’s list of 700 parcels would satisfy the requirement for a closed 

session even though the two parcels scheduled for review and instruction at a particular 

closed session have not been otherwise disclosed. 

Selected rules of statutory interpretation were recently summarized in Beaty 

4
 
v. Imperial Irrig. Dist. (1986) 186 Cal.App.3d 897, 902: 

“The fundamental rule of statutory construction is ascertaining the 

intent of the Legislature so as to effectuate the purpose of the law. (Moyer v. 

Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) The court looks 

first to the language of the statute, attempting to give effect to the usual, 

ordinary import of that language and seeking to avoid making any language 

mere surplusage. Significance if possible should be attributed to every word, 

phrase, sentence and part of an act in pursuance of the legislative purpose. 

(Ibid.) The various parts of a statutory enactment must be harmonized by 

considering the particular clause or section in the context of the statutory 

framework as a whole. (Select Base Materials v. Board of Equal. (1959) 51 

Cal.2d 640, 645.) The provisions must be given a reasonable and 

commonsense interpretation consistent with the apparent purpose and intention 

of the Legislature, practical rather than technical in nature, and which, when 

applied, will result in wise policy rather than mischief or absurdity. (United 

Business Com. v. City of San Diego (1979) 91 Cal.App.3d 156, 170, City of 

Costa Mesa v. McKenzie (1973) 30 Cal.App.3d 763, 770.)” 

We begin with the consideration that each word should be significant rather than superfluous, 

and accorded its usual and ordinary import. In this regard, the statute requires that an open 

session be held in which the public agency “identifies” the property or properties which may 

be considered in the closed session. In People v. Weger (1967) 251 Cal.App.2d 584, 593, the 

court considered the words “identify” and “identity”: 

“Here, again, we may look to the commonly accepted meaning of the 

words. According to the American College Dictionary, ‘identify’ means to 

‘establish as being a particular person or thing; attest or prove to be as 

purported or asserted. ‘Identification,’ according to College Law Dictionary 

means ‘Proof that a person or thing is the person or thing [he or] it is supposed 

or represented to be.’ 

“State v. Evjue, 253 Wis. 146 [33 N.W. 2d 305], involved a statute 

which prohibited the publication of ‘the identity of a female who may have 

been raped or subjected to any similar criminal assault . . .’ (P. 308 [33 N.W. 

2d].) In holding that the word ‘identity’ as there used was not 

unconstitutionally vague or indefinite the court said (p. 309 [33 N.W. 2d]): 

‘The word “identity” is not a word of art in the law. “Identity” is a noun and 

from it the adjective “identical” is derived. Things are said to be identical 

when they are the same, equivalent, equal. To identify is to establish the 

identity of; to prove the same with something described, claimed, or asserted. 

5
 
_______ 

Identity is defined as sameness of essential or generic character in different 

examples or instances; the limit approached by increasing similarity; sameness 

in all that constitutes the objective reality of a thing. (Webster) . . . .’ ” 

In our view, the publication of a list of 700 parcels fails to particularly establish, and 

therefore to identify, the subject matter of the closed session, consisting of not more than six 

prescheduled parcels. It must be noted in this regard that the property or properties must be 

identified “prior to the closed session,” and with the degree of specificity required to 

effectuate the statutory purpose. (Cf. Davis v. City of Berkeley (1988) 47 Cal.3d 512, 

516–517.) The apparent purpose of the enactment was to provide the members of the public 

an opportunity to comment or to take pertinent action in favor of or opposition to a particular 

acquisition, such as by communication with other members of the public, one or more 

members of the board, its staff, or the owner of the property or the agents of the owner. In 

order for any such comment or action to be relevant and appropriately directed, however, the 

property to be considered at a particular closed session of the board, as well as “the person 

or persons with whom its negotiator may negotiate,” must be specifically identified. In 

accordance with this statutory purview, a public disclosure must be made identifying with 

particularity the properties to be considered in each closed session. 

Further, the proposed publication is not reasonably consistent with the general 

purpose and intent of the Legislature. As expressed in its declaration of public policy 

(§ 54950, supra), the legislative purpose was to foster the right of the people to remain 

informed so that they may retain control over the instruments they have created. In this 

regard, we fail to perceive the practical utility of the proposed list of properties and owners. 

It is, of course, well established that the Brown Act should be interpreted liberally in favor 

of its open meeting requirements, while the exceptions to its general provisions must be 

strictly, or narrowly, construed. (San Diego Union v. City Council (1983) 146 Cal.App.3d 

947, 954–955.) Section 54956.8, beginning with the words, “[n]otwithstanding any other 

provision of this chapter,” is an exception within the meaning of sections 54953, subdivision 

(a), and 54962, both supra, to the general rule that the meetings of legislative bodies of local 

agencies shall be open and public. 

It is concluded that the listing by the district of all parcels of real property 

larger than twenty acres within its planning area does not satisfy the disclosure prerequisite 

for a closed session regarding the purchase of any one or more of such parcels. 

6