A week later on May 18 in a 8-3 vote—with council members Pat Dando, Linda LeZotte, Cindy Chavez opposed—the council voted to reject all the airport bids.

At the heart of the conflict was whether the lowest bidder—construction firm RGW—filed the right paperwork. The bids were for work at the airport's new Northern Concourse.

According to Katy Allen, director of public works for the city, and City Attorney Rick Doyle, RGW was told by a city employee that it didn't need to prequalify one subcontractor.

But the other three bidders prequalified everybody and weren't confused by rules Doyle described as "ambiguous."

Doyle's staff recommended tossing out all the bids and starting over. During the council meeting, the attorney said any other course of action could open the city to a claim.

Representatives from DeSilva Gates, the construction company with the second-lowest bid that would be awarded the contract if RGW's bid was thrown out, protested the decision as a waste of time and money if a second bid process had to be made, especially since each contractor knew what the others had bid.

At the May 11 meeting, council members, particularly San Jose Mayor Ron Gonzales and Vice Mayor Pat Dando, asked Allen pointed questions for nearly 20 minutes until Councilman Dave Cortese hit upon a solution.

"I think we either need to vote or go to closed session," he said. "I'm not comfortable discussing this, given that there are potential litigants in the audience."

Dando concurred, and the issue was retired from public discussion.

But the move raised questions about whether the council violated the Brown Act, California's open-meeting law that dictates the limited circumstances under which a city council can hide an issue behind closed doors.

The Brown Act does specify pending litigation as a valid reason for going to closed session, said lawyers with the California First Amendment Coalition and First Amendment Project. But since none of the bidders had actually filed or threatened to file a lawsuit against the city, it's not clear if that exemption applied.

First Amendment Project lawyer David Greene said the Brown Act "does require that such action be taken on the advice of counsel," not on the advice of a council member. "It's an important factor," Greene added. "This is surely a defect that is easily fixed; nevertheless, it is worth raising."

As of May 17, the council still had not specified what section of the Brown Act it was using to retire the issue to closed session.

According to California First Amendment Coalition lawyer Roger Myers, the council may claim that the contractors don't know all the facts yet. "It's not clear whether it applies here; the potential plaintiffs apparently already know about the problem that could give rise to litigation," Myers said.

Cortese, also a lawyer, told the Willow Glen Resident he became concerned that the debate was "beginning a pre-trial process in open session. People were feverishly taking notes. You're not expected to sit out there in public right in front of the people who'd be litigating and expose your litigation strategy."

Asked why the issue wasn't hammered out during the hour-long closed session preceding Tuesday's afternoon meeting, Cortese said, "That's what should've been done. I guess it just kind of slipped through. I never did ask Doyle why he didn't agendize it. Just some sort of human error, a miscall on his part. Perhaps he didn't think it would go in the direction it did. Once the council started asking for clarification, you have to call time out."

Doyle acknowledged that the discussion took off in an unplanned direction. And he said, "No one thought it was going to be—I won't call it a nightmare—such a contentious issue."

But he added that the potential plantiffs knew most of the issues that were discussed but not all of them.

"The law does allow you to call closed session in the middle of debate. It always looks weird to the public when you do that; looks like everyone went into a back room and decided how to vote, since there's not much discussion afterwards," Cortese said.

Cortese said in his 12 years of public service, he's only seen an issue switched from open session to closed session three times.

Swinerton Builders, a Santa Clara company with the third-lowest bid at $12.7 million, said it would not rebid the job.