Saturday, October 18, 2014

[Alameda County] Fremont: Washington Hospital agendas may violate open meeting law


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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