Orange County Focus is dedicated on Monday to analysis of community news, a look atwhat’s ahead and the voices of local people. : PERSPECTIVE : Keeping Secrets Is the Legal Thing to Do in 4 Cities

BREA — Can City Council members keep a secret?

Apparently the city of Brea doesn’t think so. The same goes for Costa Mesa, Santa Ana and Mission Viejo.

The four are the only cities in Orange County to have taken the unusual step of criminalizing the public discussion of closed-session items by council members.

Brea most recently threatened its leaders with a $1,000 fine and up to six months in jail for revealing the content of their private talks. With no debate, the Brea council voted 4 to 0 for the ordinance in June after suspecting Councilwoman Kathyrn E. Wiser of leaking information about a redevelopment project.

But critics are attacking the non-disclosure ordinances on legal and moral grounds. First, they argue, cities lack the authority to pass such laws. And, secondly, they assert council members should not keep certain secrets in the first place because it excludes the public from the decision-making process.

Critics contend the unchallenged law would be overturned by the courts, citing a 1993 opinion by the state attorney general’s office. The opinion, which is not binding but carries significant legal weight, declares that cities are not empowered to enact the non-disclosure laws.

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Emboldened by the attorney general’s opinion and a new city attorney swayed by it, Mission Viejo Councilman William S. Craycraft said he will seek to repeal that city’s 3-year-old ordinance this September.

Craycraft, who was censured for allegedly revealing some details of a lawsuit, believes personnel matters and some litigation should be kept confidential, but otherwise the public has a right to know.

“I could tell you horror stories that have transpired in closed session,” said Craycraft, 51, who realizes the city law was aimed at him. “There have been so many occasions where the [closed] meetings were held to prevent the public from being privy to important information.”

Supporters reply the non-disclosure law is not only defensible, but necessary. The law rightly safeguards an individual’s right to privacy on personnel matters and protects the city’s position in high-stakes business negotiations, according Brea City Atty. James L. Markman.

“I’m reasonably confident we would win” in court, Markman said.

Also, say supporters, the ordinance closes a loophole in state law, which does not explicitly prohibit a council member from talking about closed-session discussions.

Without a separate local law, a city is left with meager civil remedies to silence an official, say supporters.

According to state law, a city could pursue three routes to protect the integrity of its closed session: bar the person from the meetings; obtain an injunction against the disclosures; or seek removal of the official by filing allegations of “willful or corrupt misconduct in office” with the grand jury. (Orange County Chief Executive Officer William J. Popejoy took the latter option this month to oust Supervisor Roger R. Stanton for suggesting a possible settlement amount in its fraud suit against Merrill Lynch & Co.)

But even supporters admit a non-disclosure law would be tough to enforce.

Such a law made its Orange County premiere in 1960 as part of Costa Mesa’s municipal code, but it has yet to be enforced by any Orange County city. Even so, “it’s a strong statement that we take our obligation to keep things confidential very seriously,” said Brea Councilman Burnie Dunlap.

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Critics, however, view the law as a club to keep maverick council members in line and to shut out the public.

“It’s clearly an effort to intimidate public discourse,” said Mark Petracca, a political science professor at UC Irvine, who studies local government. “The council can more easily invoke closed sessions now in which all the discussion of important public policy questions remain hidden from public scrutiny.”

Craycraft said the law has made him think twice about discussing certain items outside closed session.

“Just having that threat over your head can stop you sometimes,” he said. “You don’t want to wake up in the morning and see a headline saying you’re being investigated” for disclosing confidential information.

But Wiser, who was absent the night the Brea council adopted its new ordinance, said the law won’t influence her behavior.

“I’m not throwing in the towel,” said Wiser, frequently on the short end of 4-1 council votes in her three years on the dais. “I’m not afraid of this ordinance. . . . We could decide almost everything without closed session. I feel the public should be kept informed.”