Non-Disclosure Law Raises Issue of Free Speech : Ordinance: Critics say the Mission Viejo measure, which punishes council members who reveal information given in closed-door meetings, violates the First Amendment.

City government experts Tuesday questioned the legality of a new city ordinance that seeks to punish City Council members who disclose information they get during a closed-door meeting.

The ordinance, adopted Monday after Councilman William S. Craycraft was censured for allegedly revealing some details of a lawsuit, makes talking about closed-door meetings a misdemeanor punishable by up to six months in jail and a $1,000 fine.

Experts said Tuesday that only a few California cities, including two in Orange County, have passed similar laws, and that there have been no prosecutions because the laws may violate the First Amendment right of free speech.

“If a councilman was ever prosecuted criminally, they could argue that he was being prosecuted for speaking his mind,” said Mike Jenkins, an attorney for four Southland communities that worked on a recent proposed amendment to the state open-meetings law. “It would also be real hard to prove.”

City attorneys who belong to a chapter of the state League of Cities said the need for such a law is a sign of an angry, suspicious council that is divided.

A state law, the Brown Act, mandates that city council meetings be open to the public. But it grants exceptions for discussions involving litigation, personnel and real estate negotiations.

Mission Viejo is not the only city to adopt a similar law. Santa Ana and Costa Mesa and Rancho Mirage in Riverside County have non-disclosure laws.

Officials in Costa Mesa said their law was passed in 1960, and they have had no problems. Rancho Mirage officials did not return several phone calls.

The Santa Ana City Council enacted the law in 1990 when it discovered that Councilman John Acosta was set to testify against the city in a lawsuit involving street vendors, said Mayor Daniel H. Young.

“Here we are in litigation, and lo and behold, one of our councilmen is a witness for the other side,” said Young, who is defending his seat against Acosta on Nov. 3. “There were other similar problems. The (disclosures) were so rampant that we had to pass that law.”

With multimillion-dollar employee contracts and land negotiations at stake, Young said, “there is information which in the best interests of the city should remain private.”

“If someone goes shooting their mouth off and it ends up costing the city big money, shouldn’t that person pay a substantial price?” he asked.

But Acosta says the ordinance probably violates free speech laws and favors making all city transactions available to the public immediately.

“We are a public agency,” he said. “Why can’t we be open to the public with what we do? I think we owe the community the information that we’re conducting behind closed doors.”

Craycraft, who denies passing along damaging information, was called a “traitor” by his council colleagues for allegedly disclosing the city’s strategy to help turn a 49-acre commercial site at Pacific Park Road and Interstate 5 into an auto mall.

Council members said Craycraft had a meeting and phone conversations to discuss the project with city officials from Laguna Hills, which opposes the auto mall because of its closeness to Nellie Gail Ranch, a tony residential tract.

The councilman, who is up for reelection Nov. 3, returned fire by calling the censure “a concerted effort by my colleagues to defame me.” He called his meeting with Laguna Hills officials purely social.

Craycraft questioned why the council was talking about redevelopment issues in closed session, saying all information discussed should have been aired in public.

But Councilman Robert A. Curtis and other city officials said the council has been considering buying the property, which enables them to discuss the project behind closed doors.

“It’s clear that Mr. Craycraft went to the other side and told them our plans and strategy,” Curtis said.

The confrontation between Craycraft and the council had been building up for some time. In past years on at least two other occasions involving a land purchase and the municipal trash contract, Craycraft has been accused of sharing closed-session information with negotiators opposing the city.

Jenkins said it isn’t uncommon for minority voices on councils to air executive session dealings in public out of frustration.

“But I think it’s pretty rare for council members to reveal information pertaining to litigation,” he said.

Many cities throughout the country are looking for solutions for how to handle information disclosures from closed meetings, said David Koehler, city attorney of El Paso, who is writing a book on governmental law ethics.

“But if anyone is ever prosecuted,” Koehler said, “I’d think you’d see First Amendment issues raised over closed-session disclosure. It would be an interesting test case.”