HANDLING PERSONNEL MATTERS UNDER THE BROWN ACT. How did we get here.? In the beginning 10/20/2016

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1 HANDLING PERSONNEL MATTERS UNDER THE BROWN ACT Presented by Marguerite M. Malloy, Esq. How did we get here.? In the early 1950 s a series of newspaper articles written by Mike Harris appeared in the San Francisco Chronicle. Harris revealed that local governmental agencies consistently conducted public business in secret. In the beginning The League of California Cities drafted a bill and asked Assemblyman Ralph M. Brown to carry it. The bill passed in The Brown Act is found at Government Code

2 The Legislature Speaks. The Ralph M. Brown Act codified the intent for public commissions, boards, councils, and public agencies to take actions, and conduct their deliberations openly. GC Declaration The Brown Act begins: Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. GC Declaration In passing the Brown Act, the Legislature stated, The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. GC

3 The Brown Act Declares The people insist on remaining informed so that they may retain control over the instruments they have created. GC Public Participation The Right to Public Participation and Comment: The public has a right to criticize the policies, procedures, programs, and services of the local body; the local body may not prohibit this kind of public input. Public comments or testimony must be allowed on all agenda items before the body takes action. Open Meeting Rule The Brown Act establishes: Except under limited circumstances, meetings are open to the public. No secret ballots. Action must be publicly reported. 3

4 Open Meeting Rule Under the Brown Act, local governmental agencies may conduct sessions closed to the public. However, Closed Sessions or Closed Meetings must be for purposes defined in the Brown Act, and meet certain requirements. Authorized Closed Meetings/Sessions Closed Meetings or Closed Sessions not expressly authorized by the Brown Act are in violation of the Act. HR Professionals Be Aware As HR and Labor Relations Professionals, we should be familiar with the Brown Act provisions that permit closed sessions where the subject matter is related to personnel and labor relations issues. 4

5 Posting Necessary For All Meetings The Brown Act requires posting of meeting agendas in advance of public meetings. The posted agenda must describe the closed sessions or closed meeting items in a specific manner. Personnel Issues Permissible Closed Sessions The Brown Act allows local agencies to conduct closed sessions with its agency counsel present to consider (the personnel exception ): Appointment of a public employee; Employment of a public employee; Evaluation of performance of a public employee; Discipline of a public employee; or Complaints or charges brought against a public employee. Complaints Against Employees Accused employee shall receive written notice 24 hours before meeting. If not, any disciplinary action taken is null and void. Disciplinary action may include reduction of compensation. 5

6 Bell v. Vista Unified School District Craig Bell was a 13 year tenured instructor and the football coach for the school district. When a foreign student sought transfer to Craig s high school football program, Craig coordinated the necessary academic transfer, housing, and visa processes. Bell v. Vista Unified School District Board of Trustees held a special closed session Board meeting to consider action. Board considered how to deal with the probation imposed against school. Posted meeting notice described the subjects to be considered at the meeting, including "public employee discipline/dismissal/release." Board did not give Craig 24 hours notice. Bell v. Vista Unified School District The Board voted to permanently remove Craig from as football coach, but he was not removed from his tenured teaching position. Craig notified the Board it had violated the Brown Act. 6

7 Bell v. Vista Unified School District Brown Act requires service by mail or personal delivery of notice employee s right to have complaint heard in open session, 24 hours in advance of meeting. If not given, any action taken against employee on basis of charges/complaint is null and void. Is 24 Hour Notice Required? Closed sessions are permissible, without 24 hr.. notice, or right to request open session, under the following circumstances: To conduct employee performance evaluations. To consider whether complaints or charges justify discipline or dismissal Kotler v. Comm. on Professional Competence of LAUSD Kolter did not receive 24 hr. notice of closed session. After the session she was informed by mail of intent to terminate her employment as a permanent teacher. Kolter sued alleging Brown Act violation. 7

8 Kolter v. Comm. on Professional Competence of LAUSD Brown Act did not entitle Kolter to 24 hr. notice because the meeting was for the sole purpose of considering, or deliberating, whether complaints or charges brought against the employee justify dismissal or disciplinary action. Kolter v. Comm. on Professional Competence of LAUSD The Court focused on the nature of the meeting, not the nature of the charges. The closed session was pre-disciplinary in nature. The Legislature specifically declined to tie the notice requirement to the "consideration" of personnel actions, including dismissal, and only tied it to the "hearing of complaints or charges. Furtado v. Sierra Community College Furtado, the Assistant Dean --Sierra Community College Library, was terminated based on poor evaluations. Furtado became a librarian at a different college campus, by working as a contract employee. 8

9 Furtado v. Sierra Community College The faculty evaluation committee recommended against renewing Furtado s contract in a written report. The Board of Trustees went into closed session (w/o 24 hr.. notice to Furtado) to discuss the written report. Furtado v. Sierra Community College Court ruled the term "specific complaints or charges" as used in the Brown Act at Gov. Code does not include negative comments in an employee's performance evaluation. Non Employees? Independent Contractors and nonemployees may not be evaluated in closed session relying on the personnel exception of the Brown Act. 9

10 Rowen v. Santa Clara Unified Sch. Dist. This case establishes it is permissible to hold a closed session to consider certain personnel matters regarding a public employee, which generally includes an officer or an independent contractor who functions as an officer or employee. Closed Sessions and Salary Discussions Decision to give a raise or set salary may be discussed in closed session. Discussion or action on proposed compensation must occur in open session. Reduction of compensation resulting from imposition of discipline/demotion may be handled in closed session. No Special Meeting allowed for salary consideration. Closed Sessions and Pending Litigation Under the Brown Act, closed sessions are permissible when the legislative body seeks to consult with its attorney regarding: Pending or existing litigation; Anticipated litigation; Initiation of litigation; and Settlement of existing litigation. 10

11 Closed Sessions and Litigation Pending Litigation may involve: Personnel and labor relations matters. Superior Court and Appellate Court. PERB, arbitration, civil service/administrative hearings. County of Los Angeles v. Superior Court Based on belief there was significant exposure to litigation based on advice of attorney for legislative body, closed session was convened to discuss options due to proposed cut of federal funding to county medical center. Page v. MiraCosta Community College District No authorization under the Brown Act to meet in closed session to either: Discuss, negotiate, and settle with an adversary and her counsel regarding anticipated or pending litigation; Mediate with adversary and or her counsel; or Convene a subterfuge to reach nonlitigation oriented policy decision. 11

12 Settlement Agreements If settlement offer signed by opposing party is accepted by legislative body, the following must be reported during the open session at the public meeting that the closed session is held: Settlement offer was accepted; and Substance of the agreement. Settlement Agreements If final approval of settlement offer rests with other party (e.g., court), once final and upon inquiry by any person, legislative body must disclose the fact of that approval; and Identify substance of agreement. Labor Relations -- Permissible Closed Sessions Brown Act permits closed sessions with the agency's designated representatives regarding the compensation and benefits paid to its represented and unrepresented employees. Also, for represented employees, closed sessions permissible for matters within statutorily provided scope of representation. 12

13 Designation of Representative After the local agency as held an open public session in which it has identified its designated representative, closed session is permissible. Labor Relations -- Permissible Closed Sessions Closed Sessions OK for these purposes: Reviewing the agency s position. Instructing the designated representative. Discussion of agency s available funds. Discussing funding priorities. Final Action Must Occur in the Open Approved agreement with represented employees shall be reported after agreement is final, accepted, and ratified by the other party. 13

14 Licenses Determination whether applicant for license who has criminal record is rehabilitated sufficiently so as to obtain or retain license may occur in closed session. Such closed sessions may include applicant and her attorney. In the case of denial, applicant may withdraw application; and if application is not withdrawn, action to deny application will occur at public meeting. Actions Shall Be Reported Out As a rule, except for license matters previously described, actions taken in closed session shall be reported in open session of the meeting in which the closed session occurred. Report out vote of each member, and describe action taken. ENFORCEMENT 14

15 Enforcement Any interested person (including the district attorney) may file suit seeking an injunction or declaratory relief for holding closed sessions not authorized by the Brown Act. Enforcement Complaining party must make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of the Brown Act. Enforcement Court finding closed session was held in violation of Brown Act may make a determination that an action taken by a local agency s null and void. 15

16 Enforcement If the Court issues judgment in favor of the party bringing suit, the Court may order the local agency to audio record and preserve the recording of its closed sessions. In a civil action alleging similar violations, such recordings may be disclosed. Enforcement When complaining party brings a successful lawsuit, a court may award court costs and reasonable attorney fees. Misdemeanor If the members in attendance at the unlawful closed session intended to deprive the public of information that the members knew, or had reason to know the public was entitled to, the members are guilty of a misdemeanor. 16

17 Take-Aways Assure yourself, the personnel or labor relations matter is permitted under the Brown Act. Consult with your legal counsel. Be sure to include Closed Session on the Noticed/Posted Agenda. Look to the Brown Act for language to use in the Agenda for Closed Sessions. If salary is being determined, carefully consider whether Closed Session is permissible. 17