______________________________________ 

______________________________________________________________________________ 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-212 

of : 

: December 30, 1993 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. Da VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE ROBERT PRESLEY, MEMBER OF THE CALIFORNIA 

STATE SENATE, has requested an opinion on the following question: 

May a city adopt an ordinance making it a misdemeanor for any person present

during a duly conducted closed session of a city council meeting to publicly disclose the substance

of any discussion properly held during the session unless so authorized by the council? 

CONCLUSION 

A city may not adopt an ordinance making it a misdemeanor for any person present

during a duly conducted closed session of a city council meeting to publicly disclose the substance

of any discussion properly held during the session unless so authorized by the council. 

ANALYSIS 

The Ralph M. Brown Act (Gov. Code, §§ 54950 - 54962; "Act")1 requires the

"legislative bodies" of "local agencies" to hold their meetings open to the public unless expressly

excepted by the Act or impliedly excepted by another provision of law pertaining to confidential

communications (§ 54962; see 70 Ops.Cal.Atty.Gen. 57, 58 (1987); 63 Ops.Cal.Atty.Gen. 820, 821

(1980)). 

The Act contains numerous provisions authorizing the holding of closed sessions. (See 

Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050, 1055; Register of Division of 

Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 907; Sacramento 

Newspaper Guild v. Sacramento County Board of Supervisors (1968) 263 Cal.App.2d 41, 45; 51 

Ops.Cal.Atty.Gen. 201, 202 (1968).) A closed session may be conducted to discuss and determine 

1

All unidentified section references hereafter are to the Government Code. 

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whether an applicant for a license or license renewal who has a criminal record is sufficiently

rehabilitated (§ 54956.7); to instruct the local agency's negotiator regarding the price and terms of

payment for a prospective purchase, sale, exchange, or lease of real property (§ 54956.8); to confer

with, or receive advice from, the local agency's legal counsel regarding pending litigation (§

54956.9); to convene with the Attorney General, district attorney, sheriff, or chief of police, or their

deputies, on matters posing a threat to the security of public buildings, or a threat to the public's right

of access to public services or facilities (§ 54957); to consider the appointment, employment,

evaluation of performance, or dismissal of a public employee, or to hear complaints or charges

brought against such employee by another, unless a public hearing is requested by the employee (§

54957); to instruct the local agency's designated representative regarding the salaries, salary

schedules, or benefits of its represented or unrepresented employees (§ 54957.6). 

The public policy reasons for authorizing closed sessions for public body

deliberations appear almost as numerous as the individual exemptions contained in the Act itself.

(See, e.g., Hamilton v. Town of Los Gatos, supra, 213 Cal.App.3d at 1058-1059; Sacramento 

Newspaper Guild v. Sacramento County Board of Supervisors, supra, 263 Cal.App.2d at 53-58; City

Council v. Superior Court (1962) 204 Cal.App.2d 68, 75-77; 58 Ops.Cal.Atty.Gen. 273, 277-278

(1975); 51 Ops.Cal.Atty.Gen., supra, 205-206.) 

The inquiry presented for analysis concerns whether a city may adopt an ordinance

making it a misdemeanor for any person present during a duly conducted closed session of a city

council meeting to publicly disclose the substance of any discussion properly held during the session

unless so authorized by the council. We conclude in the negative. 

Preliminarily, we note that the issue in question pertains solely to the authority of a 

city to make a crime of disclosing information under the circumstances presented. We have, in 

contrast, routinely observed that it would be improper for information received during a closed

session to be publicly disclosed without authorization of the governing body as a whole. (51

Ops.Cal.Atty.Gen., supra, 203-206; 44 Ops.Cal.Atty.

Gen. 147, 149 (1964); Cal. Atty. Gen., Indexed Letter, No. IL 76-201 (Oct. 20, 1976); Open Meeting

Laws (Cal. Atty. Gen., pamp., 1989), p. 45; see also City Council v. Superior Court, supra, 204 

Cal.App.2d at 76-77.) 

The basis for our prior conclusions was that the statutes authorizing closed sessions

and making records thereof "confidential" would be rendered meaningless if an individual member

could publicly disclose the information he or she received in confidence. (51 Ops.Cal.Atty.Gen., 

supra, 203-206; Cal. Atty. Gen., Indexed Letter, No. IL 76-201, supra.) Not only does the Act

authorize closed sessions, it specifies that the minute book containing "a record of topics discussed

and decisions made at" a closed session "is not a public record . . . and shall be kept confidential"

and "available only to members of the legislative body or . . . to a court . . . ." (§ 54957.2; see

Hamilton v. Town of Los Gatos, supra, 213 Cal.App.3d at 1055; Register Division of Freedom

Newspapers, Inc. v. County of Orange, supra, 158 Cal.App.3d at 907.) If the recording of a closed

session discussion must be kept in confidence, it follows that oral communications of such

information may not be made to the public.2 

2

The Act also requires that "[p]rior to or after holding any closed session, the legislative body of

the local agency shall state the general reason or reasons for the closed session," but the legislative

body is not authorized to give "other information which would . . . unnecessarily divulge the

particular facts concerning the closed session." (§ 54957.7.) 

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Limited by the terms of the question, we do not focus again upon the "propriety" of

public disclosures of closed session information. Nor do we examine other possible sanctions that

may be imposed upon a person who discloses confidential information, such as barring the person

from future closed sessions (see Hamilton v. Town of Los Gatos, supra, 213 Cal.App.3d at 1054),

obtaining an injunction against the person's public disclosures (see § 54960; Sacramento Newspaper

Guild v. Sacramento County Board of Supervisors, supra, 263 Cal.App.2d at 46; City Council v. 

Superior Court, supra, 204 Cal.App.2d at 73),3 or filing an accusation against the person for "willful 

or corrupt misconduct in office" (§ 3060; see People v. Tice (1956) 146 Cal.App.2d 750, 754). 

Turning, then, to the issue of a city's authority to specify certain conduct as a crime,4 

we commence our analysis with the observation that a city possesses and can exercise only such

powers as are granted it by the Constitution or by statutes, together with those powers as arise by

necessary implication from those expressly granted. (Myers v. City Council of Pismo Beach (1966)

241 Cal.App.2d 237, 240; 66 Ops.Cal.Atty.Gen. 293, 296 (1983).) Specifically, a "county or city

may make and enforce within its limits all local, police, sanitary, and other ordinances and

regulations not in conflict with general laws." (Cal. Const., art. XI, § 7; § 37100.) Under the police

power, cities and counties have plenary power to govern, subject only to the limitation that they

exercise this authority within their territorial limits and subordinate to state law. Otherwise, the 

police power of a city or county is as broad as that of the Legislature itself. (Candid Enterprises, 

Inc. v. Grossmont Union High School District (1985) 39 Cal.3d 878, 885; Birkenfeld v. City of

Berkeley (1976) 17 Cal.3d 129, 140.) 

If an ordinance of a general law city conflicts with state law, it is void under the

limited grant of constitutional authority. (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807.)

The conflicting ordinance of a charter city would also be void, unless it concerns a purely

"municipal affair." (Cal. Const. art. XI, § 5; 66 Ops.Cal.Atty.Gen. 293, 297 (1983); see also 62

Ops.Cal.Atty.Gen. 448, 451 (1979).) Inasmuch as the Act's provisions are a matter of statewide

concern and do not involve a purely municipal affair, the ordinance in question would be invalid if

it is in conflict with state law, whether the ordinance be that of a general law or charter city. (See

San Diego Union v. City Council of the City of San Diego (1983) 146 Cal.App.3d 947, 957-958.) 

In Lancaster v. Municipal court (1972) 6 Cal.3d 805, 807-808, the court explained

when a "conflict" exists for purposes of the constitutional provision: "Conflicts exist if the 

ordinance duplicates [citations], contradicts [citation] or enters an area fully occupied by general

law, either expressly or by legislative implication [citations]." 

In determining whether the Legislature has "fully occupied" a particular area of law

by implication, the whole purpose and scope of the legislative scheme must be considered. There 

are three tests: (1) the subject matter has been so fully and completely covered by general law as

to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has

been partially covered by general law couched in such terms as to indicate clearly that a paramount

state concern will not tolerate further or additional local action; or (3) the subject matter has been 

3

The disobedience of a lawful judgment or order of a court constitutes a contempt (Code Civ.

Proc., § 1209, subd. (a)(5)), punishable by a fine of up to $1000, imprisonment not exceeding five

days, or both (Code Civ. Proc., § 1218). 

4

A discussion of any possible First Amendment rights (U.S. Const., 1st Amend. ["Congress shall

make no law . . . abridging the freedom of speech . . ."]; Cal. Const., art. I, § 2, subd. (a) [. . . "A law

may not restrain or abridge liberty of speech . . ."]) to publicly disclose the information in question

is beyond the scope of this opinion. 

3. 93-212
 
partially covered by general law, and the subject is of such a nature that the adverse effect of a local

ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.

(Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708; People ex rel. Deukmejian v. County of 

Mendocino, supra, 36 Cal.3d at 485; In re Hubbard (1964) 62 Cal.2d 119, 128.) When the state has 

occupied a particular field, not even "complementary" or "supplementary" local legislation is

permitted. (See In re Lane (1962) 58 Cal.2d 99, 102; Abbott v. City of Los Angeles (1960) 53 Cal.2d

674, 681.) 

The Act specifically provides that a "member of a legislative body who attends a

meeting of a legislative body where action is taken in violation of any provision of [the Act], with

knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor." (§

54959.) It has also been held that the Act may be enforced by use of the general criminal sanction

set forth in section 1222. (Adler v. City Council (1960) 184 Cal.App.2d 763, 774-775.) Section 

1222 provides: 

"Every willful omission to perform any duty enjoined by law upon any public

officer, or person holding any public trust or employment, where no special

provision is made for the punishment of such delinquency, is punishable as a

misdemeanor." 

In view of these specific and general criminal sanctions enacted by the Legislature,

we believe that a local misdemeanor ordinance to further enforce the Act's provisions would be in

conflict with state legislation either by duplicating it or being supplemental thereto in an area fully

occupied by the Legislature. Such an ordinance would thus be preempted by state law and deemed 

void. 

In answer to the question presented, therefore, we conclude that a city may not adopt

an ordinance making it a misdemeanor for any person present during a duly conducted closed

session of a city council meeting to publicly disclose the substance of any discussion properly held

during the session unless so authorized by the council. 

* * * * * 

4. 93-212