WHILE REASONABLE people can differ on whether Contra Costa supervisors were right not to join a lawsuit challenging Proposition 8, the gay marriage ban passed by voters in November, there is little doubt that county leaders erred by making the decision behind closed doors.
We opposed Proposition 8 and have said since the election that we expect the state Supreme Court to overturn it. And we note that voters in the East Bay, including in Contra Costa, opposed the measure. But that doesn't mean that local governments should join every lawsuit, especially during tight fiscal times.
In this case, Contra Costa officials were being asked to join a lawsuit initiated by San Francisco, Los Angeles and Santa Clara counties. Admittedly, the cost to Contra Costa would have been minimal. But the issue here is not the merits of joining the lawsuit — it's the secret process used for reaching the decision.
State law allows — but does not require — local governments to discuss potential litigation in closed session. That authority to discuss matters secretly should be used judiciously and only if the county's legal position would be compromised. It should not be used to avoid a public airing of controversial issues.
In this case, there would have been no danger to the county's legal position by having an open discussion of the pros and cons of joining the lawsuit. All of the legal arguments surrounding the case are well known to anyone who has been following the issue in the news.
In essence, the issue before the county board was one of policy — whether to join a lawsuit to make a political statement — rather than one of legal strategy. It was a discussion the public deserved to know about and should have been able to witness.
Instead, the supervisors' agenda for its meeting last week indicated that it would discuss whether to "initiate" litigation. The nature of the case was not specified and, indeed, the notion that the county would be "initiating" the case was misleading.
It was only through tenacious work of MediaNews reporter Matthias Gafni that the true topic of the closed-door discussion came to light.
In the future, supervisors and county counsel should be more discerning about the use of secret discussions of public issues.