October
16, 2014
San
Jose Mercury-News
By Rebecca Parr
FREMONT -- Washington
Hospital's board of directors appears to routinely violate the state's open
meetings law by using vague wording on its closed session agenda items, media
law experts say.
"Despite the fact that a
particular agenda item is discussed in closed session, the Brown Act still
requires that the agenda provide a brief description of the item that is to be discussed,"
said Leila Knox, an attorney for the First Amendment Coalition, a nonprofit
group promoting free speech and open and accountable government.
On almost all its agendas,
Washington uses identical wording for three closed-session items: human resources,
risk management and emergency items.
But the Brown Act, the state's
open meeting law, requires more specific wording. Without an adequate
description, Knox said, it is difficult for people to determine if the district
is even legally allowed to go into closed session.
Washington Hospital's attorney
takes the position that the Brown Act allows specific wording for closed
session agenda items but does not require it.
However, "the district is
reviewing its various procedures to improve on transparency, which includes
reconsideration of agenda formats. ... The district anticipates various changes
will be implemented in the coming months," attorney Paul Kozachenko wrote
in an email.
The hospital district's
closed-session agenda notice simply states the rules it operates under:
"Emergency Items: Emergency situations may be discussed in closed session
if agreed to by a two-thirds vote of the members of the board present, or by a
unanimous vote of the board members present."
An emergency meeting is rarely
called, and only under limited and drastic circumstances, said Peter Scheer,
executive director of the First Amendment Coalition. The Brown Act lists
specific circumstances, such as a terrorist act, mass destruction, crippling
disaster or dire emergency.
If an emergency meeting is
called, the board must provide 24 hours notice in most cases, and the meeting
is not automatically closed, Knox said. At the emergency meeting, the board has
to vote whether to go into closed session, she said.
"It sounds as though the
board may be conflating and confusing various provisions in the Brown Act to
find that any item it deems an 'emergency' may be discussed behind closed
doors," Knox said.
The emergency item wording has
been a part of the district's agenda for years and is a reminder that the board
can act if there is an emergency, Kozachenko said.
"Over the history of the
district, emergencies have been rare. This is another item that will be
reviewed in the coming months for possible revision," he said.
Under closed session items,
Washington Hospital agendas use the wording: "Human Resources/Discussion
of Human Resources Matters," with no description, another apparent break
with state law, which permits closed session discussion of specific personnel
matters but requires explicit agenda information on them. For instance, the
Oct. 7 San Leandro school board agenda read: "Public Employee Performance
Evaluation, Title: Superintendent's Evaluation; Government Code 54957."
"Discussions of general
'human resources matters' are not one of the circumstances under which a public
agency may hold a closed session," Knox said.
Hospital districts must follow
state and federal rules to protect patient confidentiality, but they remain
subject to Brown Act guidelines, Scheer said. The Brown Act is quite specific
and provides agenda wording guidelines, he said.
"The agency doesn't have
to do much in terms of its disclosure, but it has to disclose something,"
he said. While he was not familiar with Washington Township, based on a
description of the agenda items, "I wouldn't be surprised if they are
meeting too often in executive session," he said. The Alameda County civil
grand jury in June took the Washington Hospital board to task for meeting so
much in closed session.
Washington also lists "discussion
of claims liabilities pending and anticipated litigation," without
details.
"You can't keep referring
to pending litigation. You have to refer to the claim and cite the case
number," Scheer said.
By comparison, Eden Township
Healthcare District's Oct. 15 meeting agenda includes this closed-session item:
"Conference with Legal Counsel: Pending Litigation Pursuant to Government
Code Section 54956.9(a), Sutter Health v. Eden Township Healthcare District,
Case Number RG09 481573."
The Washington Hospital board
has used the same agenda format for years, said its president, Bernard Stewart.
"I believe the format is adequate, but as I have said before, we can
always find ways to improve," he wrote in an email.
Public records
In its report, the grand jury
also concluded that the district responds poorly to public records requests.
In response, the hospital
district is now posting agenda packets online. It also no longer requires
people attending the meetings to sign in.
In a written response to the
grand jury, Stewart disagreed with many of the its findings.
The district acknowledged that
its board conducts many meetings in closed session. However, "a health
care district routinely deals with unique issues which require closed
sessions," Stewart wrote. Those include hospital medical audits, quality
assurance committee reports and hospital trade secrets, in addition to other
confidential matters such as personnel discussions, labor negotiations and
liability claims.
"We want to be
transparent, and we want to be responsible stewards of the operations of the
district," Stewart wrote. The district also must adhere to federal and
California laws governing patient confidentiality, he wrote.
"The district must always
consider its obligations to safeguard patient and physician privacy ... issues
regularly arise which cannot be discussed in an open forum," he wrote.
The district plans to hold
public meetings about its closed sessions within six months, Washington's
report said.
Regarding poor responses to
public records requests, Stewart wrote that over the past six months, the
district produced more than 200,000 pages of records and 140 gigabytes of
electronic records for such requests.
Stewart took issue with the
suggestion that board members' long tenure has led to a perception of
complacency. Long-serving directors are a strength because of the complexity of
health care, he wrote.
The district rejected the grand
jury recommendation of term limits for board members. "The voters have
ample power to make a change, should they decide to do so," Stewart wrote.
Three board members are
unopposed in the November election, and their names will not appear on the
ballot: Stewart, Jacob Eapen and Michael Wallace. Eapen has served on the board
since 2005, Stewart since 2002 and Wallace since 1991.
The grand jury wrote that the
district reimbursing its chief executive officer for personal charitable
donations led to the appearance of impropriety. Stewart agreed that the
district needs to make it clear that the donations are coming from it, not CEO
Nancy Farber.
Farber's contract is now posted
online, as the grand jury had recommended.
Contact Rebecca Parr at
510-293-2473 or follow her at Twitter.com/rdparr1.
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