CURRENT ISSUES UNDER THE BROWN ACT

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1 CITIES CONFERENCE LEAGUE OF CALIFORNIA CITY ATTORNEYS MAY 1-3, 1996 CURRENT ISSUES UNDER THE BROWN ACT DOES A PUBLIC EMPLOYEE HAVE THE OPTION TO REQUEST A PUBLIC SESSION FOR ALL TYPES OF PERSONNEL MATTERS FOR WHICH AUTHORIZES A CLOSED SESSION? WHEN A PUBLIC EMPLOYEE REQUESTS A PUBLIC SESSION FOR A PERSONNEL MATTER, ARE MEMBERS OF THE AUDIENCE ENTITLED TO ADDRESS THE LEGISLATIVE BODY CONCERNING THE MATTER? WHEN A PUBLIC EMPLOYEE REQUESTS A PUBLIC SESSION FOR A PERSONNEL MATTER, IS THE LEGISLATIVE BODY REQUIRED TO DELIBERATE, RECEIVE ADVICE FROM ITS LEGAL COUNSEL, AND TAKE ACTION IN PUBLIC SESSION? AFTER PROPERLY TAKING CLOSED SESSION ACTION ON A PERSONNEL MATTER, WHAT INFORMATION IS THE LEGISLATIVE BODY REQUIRED TO RELEASE? WHAT TOPICS MAY BE ADDRESSED IN A CLOSED SESSION CONCERNING REAL PROPERTY NEGOTIATIONS?

2 , City Attorney Julie A. Dolan, Paralegal Coronado, Del Mar, Encinitas (619)

3 PERSONNEL CLOSED SESSION: EMPLOYEE'S OPTION FOR PUBLIC SESSION ISSUE #1 DOES A PUBLIC EMPLOYEE HAVE THE OPTION TO REQUEST A PUBLIC SESSION FOR ALL TYPES OF PERSONNEL MATTERS FOR WHICH AUTHORIZES A CLOSED SESSION? STATUTORY BACKGROUND The first paragraph of provides:... to consider the appointment, employment, evaluation of performance, discipline or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session. The Legislative Body is authorized to meet in Closed Session concerning the types of personnel actions listed. However, included in this paragraph is an option which entitles the public employee to a Public Session. "Public Session" is an undefined term in the Brown Act. This paper makes the assumption that "Public Session" is an "Open Session." HYPOTHETICAL SITUATION #1-A The City Council wants to conduct a Closed Session to evaluate the performance of a Council-appointed, public employee. Does the option entitle the Council-appointed, public employee to a Public Session for an evaluation of performance? HYPOTHETICAL SITUATION #1-B The City Council wants to conduct a Closed Session to consider a Councilmember's specific complaint about a Council-appointed, public employee. 1 See appendix A for full text.

4 Does the option entitle the Council-appointed, public employee to a Public Session for consideration of the Councilmember's specific complaint?

5 ISSUE #2 WHEN A PUBLIC EMPLOYEE REQUESTS AN PUBLIC SESSION FOR A PERSONNEL MATTER, ARE MEMBERS OF THE AUDIENCE ENTITLED TO ADDRESS THE LEGISLATIVE BODY CONCERNING THE MATTER? HYPOTHETICAL SITUATION #2 The Department Head charged a records supervisor with misconduct and suspended him for 10 days. In accordance with City rules, the records supervisor appealed the suspension to the Legislative Body for final City action. Exercising the option, the records supervisor requested a Public Session. As part of the Public Session, are members of the audience entitled to address the Legislative Body? ISSUE #3 WHEN A PUBLIC EMPLOYEE REQUESTS A PUBLIC SESSION FOR A PERSONNEL MATTER, IS THE LEGISLATIVE BODY REQUIRED TO DELIBERATE, RECEIVE ADVICE FROM ITS LEGAL COUNSEL, AND TAKE ACTION IN PUBLIC SESSION? HYPOTHETICAL SITUATION #3 The Department Head charged a records supervisor with misconduct and suspended him for 10 days. In accordance with City rules, the records supervisor appealed the suspension to the Legislative Body for final City action. Exercising the option, the records supervisor requested a Public Session. The Legislative Body, in Public Session, completes its hearing of the Department Head's complaint and the employee's response. Does the option require the Legislative Body to remain in Public Session to deliberate, receive advice from its legal counsel and take action on the personnel matter?

6 PERSONNEL CLOSED SESSION: RELEASE OF INFORMATION ISSUE #4 AFTER PROPERLY TAKING CLOSED SESSION ACTION ON A PERSONNEL MATTER, WHAT INFORMATION IS THE LEGISLATIVE BODY REQUIRED TO RELEASE? HYPOTHETICAL #4-A The Department Head charged an account clerk with misconduct and suspended him for 5 days. In accordance with City rules, the account clerk appealed the suspension to the Legislative Body for final action. The account clerk did not request a Public Session. In compliance with (e), the Legislative Body's regular meeting agenda included the following item: CLOSED SESSION: PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE AUTHORITY: Gov. Code When the item was called, the Legislative Body cleared all persons from the meeting room except the account clerk and his legal counsel, the Department Head and her legal counsel, the Clerk of the Body, the Legislative Body's legal counsel and staff advisor, and two designated witnesses. After hearing the Department Head's charges and the account clerk's response, including receiving information and arguments, the Legislative Body was ready to discuss whether to affirm or set aside the suspension. All persons were cleared from the meeting room except the Legislative Body's own legal counsel and staff advisor. Then, the Legislative Body deliberated and took action that affirmed the 5 day suspension. The Legislative Body reconvened from Closed Session into Open Session. At that public meeting, prior to adjournment, the Chairperson of the Legislative Body orally made the following oral report to the public: "The suspension of an account clerk has been sustained by the unanimous vote of the Legislative Body." Did the Legislative Body's oral report satisfy the requirements of the Brown Act?

7 HYPOTHETICAL SITUATION #4-B In the context of Hypothetical Situation #4-A, as part of its Closed Session action sustaining the 5 day suspension, the Legislative Body adopted a resolution. Prepared to withstand judicial review by administrative mandamus, the Resolution identifies the employee by name, describes the factual circumstances found to exist, and the Legislative Body's reasoning. The Resolution concludes by affirming the Department Head's action suspending the employee for 5 days. After reporting its decision in Open Session, the Legislative Body confidentially gives the account clerk a copy of the Resolution to provide notice of the Legislative Body's action. The City is prepared to publicly disclose the Resolution if the account clerk: (1) expressly waives objection to the City's release of the Resolution; (2) publicizes the Resolution; or (3) files a lawsuit. The Brown Act affords some protection of the employee's privacy by not requiring the City to include the employee's name in either the wording of the agenda item or in the report of Closed Session action. If the account clerk does not want the Resolution to be made public, is the Legislative Body nonetheless required to disclose the Resolution to a member of the public who makes a request?

8 REAL PROPERTY CLOSED SESSION: REAL PROPERTY PURCHASE NEGOTIATIONS ISSUE #5 WHAT TOPICS MAY BE ADDRESSED IN A CLOSED SESSION CONCERNING REAL PROPERTY NEGOTIATIONS? HYPOTHETICAL SITUATION #5-A John Floyd, the owner of 173 Elm Street, a vacant lot adjacent to the City's Public Works Yard, placed an add in the newspaper offering the vacant lot for sale with an asking price of $84,000. The City Manager believes that the vacant lot is useable as a site to expand the City's Public Works Yard. The City Manager places the following as item #7 on the City Council agenda: 7. Consideration of Purchase of 173 Elm Street, Owned by James Floyd, to Expand the Public Works Yard. At the Council meeting, the City Manager supplements the written report in the agenda packet with a brief description of the condition of the City's Public Works Yard, the need to expand, and how Floyd's vacant lot can be utilized. At the conclusion of the Manager's oral report, the Mayor turns to the City Attorney and asks, "Can the Council recess into Closed Session to discuss this?" HYPOTHETICAL SITUATION #5-B After receiving the City Attorney's advice in Hypothetical 5-A, the City Council decided, in Open Session, that: (1) the Public Works Yard may need to be expanded, (2) the Council wanted to explore acquiring the Floyd lot, and (3) City Manager was to be the City's negotiator. The City Council properly recessed into Closed Session. In the Closed Session, the City Council decided that it was interested in acquiring the Floyd lot only if Floyd is a "willing" seller. The Council directed the City Manager to contact Floyd to see if Floyd would be willing to accept $76, See appendix A for full text.

9 The next day, the City Manager contacted Floyd who held firm to his $84,000 offer to sell. The City Manager placed the following item on the City Council agenda for the next meeting: CLOSED SESSION: CONFERENCE WITH REAL PROPERTY NEGOTIATOR AUTHORITY: Gov. Code PROPERTY: 173 Elm Street, Ourcity, California CITY NEGOTIATOR: Carol Miller, City Manager TO NEGOTIATE WITH: James C. Floyd UNDER NEGOTIATION: price and terms of payment At the next meeting, the City Council recessed into Closed Session where the Manager proposed that the City hire an appraiser to assist in the negotiations. The Manager suggested Henry Garcia, Hans Rueter, or Martha Wells. Each has worked for the City. The Manager had contacted all three appraisers and each is willing to do the job for the same price. The Mayor turns to the City Attorney and asks, "Before we go back into Open Session, can the City Council discuss whether to employ an appraiser and then employ one of the three?

10 APPENDIX A SELECTED PORTIONS OF BROWN ACT TEXT Section states: FOR HYPOTHETICALS #1, #2 and #3 Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions with the Attorney General, district attorney, sheriff, or chief of police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the public's right of access to public services or public facilities, or from holding closed sessions during regular or special meeting to consider the appointment, employment, evaluation of performance, discipline or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session. As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void. The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body. For the purposes of this section, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. Nothing in this section shall limit local officials' ability to hold closed session meetings pursuant to Sections 1461, 32106, and of the Health and Safety Code or Sections and of the Government Code. Closed sessions held pursuant to this section shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.

11 FOR HYPOTHETICAL #4 Section in pertinent part states: (a) The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention of every member present thereon, as follows: (1) Approval of an agreement concluding real estate negotiations pursuant to Section shall be reported after the agreement is final, as specified below:... (5) Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of the dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.... (b) Reports that are required to be made pursuant to this section may be made orally or in writing. The legislative body shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section or 54956, if the requester is present at the time the closed session ends, copies of any contracts, settlement agreements, or other documents that were finally approved or adopted in the closed session. If the action taken results in one or more substantive amendments to the related documents requiring retyping, the documents need not be released until the retyping is completed during normal business hours, provided that the presiding officer of the legislative body or his or her designee orally summarizes the substance of the amendments for the benefit of the document requester or any other person present and requesting the information. (c) The documentation referred to in paragraph (b) shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when any necessary retyping is complete.... (e) No action for injury to a reputational, liberty, or other personal interest may be commenced by or on behalf of any employee or former employee with respect to whom a disclosure is made by a legislative body in an effort to comply with this section.

12 FOR HYPOTHETICALS #5A and #5B Section in pertinent part states: (b) With respect to every item of business to be discussed in closed session pursuant to Section : CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: (specify street address, or if no street address, the parcel number or other unique references, of hte real property under negotiation) (not Negotiating parties: (Specify the name of party agent)) Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment of both) Section in pertinent part states: Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies the real property or real properties which the negotiations may concern and the person or persons with whom its negotiator may negotiate. For the purpose of this section, the negotiator may be a member of the legislative body of the local agency. For purpose of this section, "lease" includes renewal or renegotiation of a lease. Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section

13 APPENDIX B POSSIBLE RESPONSES TO HYPOTHETICAL SITUATIONS POSSIBLE RESPONSE TO HYPOTHETICAL #1-A No, based on the wording of Section lists several types of Closed Session personnel matters. Of the listed types of personnel matters, the "unless the employee requests a public session" option, by its grammatical placement, refers only to the last type of personnel matter listed. That is, there is an option to request a Public Session only when the City Council intends "to hear complaints or charges brought against the employee by another person or employee." The option does not extend to other types of personnel matters, such as: appointment, evaluation of performance, or dismissal at pleasure without complaints or charges. The second paragraph of supports this argument. It requires the City to notify the employee of the Public Session option only for one type of personnel matter, that is, "specific complaints or charges brought against an employee by another person or employee." Therefore, the Council-appointed public employee is entitled to a Public Session only when the City Council intends "to hear complaints or charges brought against the employee by another person or employee." POSSIBLE RESPONSE TO HYPOTHETICAL #1-B Possibly yes, based on the wording of The public employee's option is limited to a situation in which the complaint or charge is brought by "another" person or employee. A Councilmember is "another" person and public employee who is "other" than the Council-appointed public employee. However, if the City Council, as a body, has a complaint, the City Council is in privity with the public employee concerning the employment relationship and may not be deemed to be "another" person or employee. To avoid this issue, the matter may be agendized as an evaluation of performance. POSSIBLE RESPONSE TO HYPOTHETICAL #2 Yes, in accordance with the Brown Act. Literally and liberally construed, the Brown Act may be read to require that the public be given the opportunity to address the Legislative Body, before or during consideration of the personnel matter. Section (a) provides:

14 Every agenda for regular meetings... [or] a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. However, the Brown Act may not be the only concern. Due Process requires that the employee have notice of the complaint and the supporting information so that the employee has a meaningful opportunity to respond. Members of the audience presenting surprise information may impact upon the employee's right to Due Process. Further, surprise information could render the hearing unfair to the City or the employee. Therefore, the opportunity for members of the public to address the Legislative Body should be provided prior to the commencement of the hearing of the complaint, not during. If new information is presented by the public, the Legislative Body may decide: (1) to give the employee additional time to prepare; (2) to terminate the current personnel action and commence a new action based on the new information; or (3) to rule that the new information is irrelevant to the matter and is not to be considered by the Legislative Body or the employee. POSSIBLE RESPONSE TO HYPOTHETICAL #3 No, based on the wording of There is a distinction between "hearing" complaints and "deliberating and deciding" the item. Section entitles the records supervisor to the option of confronting the complaints in public. The Legislative Body conducts a Public Session "to hear complaints" which would include receiving information and arguments. After satisfying its requirement to hear the complaints in Public Session, the Legislative Body is entitled to recess into Closed Session to complete the remaining portion of the personnel item, that is to: (a) receive professional advice, (b) deliberate, and (c) decide whether there is a basis for imposing discipline and if so, whether the level of discipline imposed is appropriate. By analogy, the records supervisor is entitled to the same due process as a person charged with a crime. There is the right to confront the compliant in public, but no right to observe the jury as it deliberates and decides the case. POSSIBLE RESPONSE TO HYPOTHETICAL #4-A Yes. When the Legislative Body acts in Closed Session to affect the employment status of a public employee, (a)(5) requires the

15 Legislative Body to reconvene from Closed Session into Open Session. At that meeting, prior to adjournment, the Body must make a public report that identifies: 1. The title of the position. [The Brown Act does not require the name of the employee to be reported]; and 2. The action taken that affects the employment status. [Not the degree of the action.] Note: The Brown Act does not require the Legislative Body's report to present the circumstances of the incident or the reasoning of the decision. POSSIBLE RESPONSE TO HYPOTHETICAL #4-B Yes, based on (b) of the Brown Act which requires the City to provide to a requestor copies of "... documents that were finally approved or adopted in the closed session." Since it was adopted in Closed Session, the Resolution must be disclosed: 1. At the time the Closed Session ends, to a requestor who is present at that time and has either: (a) submitted a written request to the City within 24 hours of the posting of the agenda; or (b) made a standing request. 2. As soon as any substantial retyping is completed, to any person that makes a request, provided that, before the retyping is complete, the Mayor (or designee) orally summarizes the substance of the Resolution for the benefit of any person making a request. 3. On the next business day following: (a) the meeting in which the Resolution was adopted, or (b) when any necessary retyping is complete, to any requestor. However, the City should be concerned about the employee's privacy and liberty interests. The City is exposured to liability notwithstanding the provisions of (e) which purport to protect the City by providing that no action may be commenced against the City for making a disclosure in an effort to comply with The statutory provisions of (e) may not immunize a City that violates an employee's rights protected by the California Constitution or the U.S. Constitution. If faced with a request from a member of the public, there is an alternative to the City unilaterally disclosing the Resolution. The City may treat the request

16 as being made under the Public Records Act. The City may refuse to disclose the Resolution based on: Government Code 6254 (c) which protects personnel files; and the City's balancing of the public benefits from disclosing and retaining. The City may also give the employee an opportunity to seek an injunction barring the City from disclosing the Resolution. If the requestor files a lawsuit to force disclosure, the employee should be joined in the litigation as an indispensable party with the opportunity to protect the privacy interest. If the City loses the disclosure lawsuit, it is the court that is responsible for the disclosure. The City may be ordered to pay the requestor's legal fees. However, defending against the requestor's disclosure lawsuit and paying the requestor's legal fees may be considerably less expensive than defending and possibly having to pay damages in a lawsuit filed by the employee, on any number of theories, for the City's unilateral disclosure of the Resolution. POSSIBLE RESPONSE TO HYPOTHETICAL #5-A Yes, but only after initially deciding, in Open Session, that the City Council is interested in purchasing the vacant lot. Because the following are NOT within the scope of the exception, the City Council should first, in Open Session, decide: 1. Whether the Public Works Yard needs to be expanded; 2. Whether additional property is needed to expand the Yard; 3. Whether the Floyd vacant lot satisfies the need; and 4. Whether the City is interested in proceeding with the possible purchase of the Floyd lot to be used to expand the Public Works Yard. If the City Council desires to proceed with the possible purchase, it should publicly designate its negotiator, who must be in the Closed Session with the City Council. Finally, since the consideration of the purchase of the Floyd lot is generally described in item #7 on the agenda, though not as a Closed Session, the City Council can nonetheless recess into Closed Session by adopting a motion: To recess into Closed Session, under the authority of Gov. Code , to give directions to its negotiator, to negotiate with Mr. Floyd concerning the price and terms for purchasing 173 Elm Street.

17 can: Now, the City Council is authorized to recess into Closed Session where it 1. Give instructions to the negotiator concerning price, terms of payment, or both. (Implied by (b).) 2. Grant authority to its negotiator regarding the price and terms of payment for the purchase. ( ) 3. Deliberate and exchange opinions with the negotiator, staff and among themselves regarding the price and terms of payment. (Implied by (b).) 4. Deal with other terms in the transaction. (Implied by (a)(1).) 5. Receive a presentation of facts from staff or the negotiator concerning the negotiations and proposed agreement. (Implied by necessity.) 6. Decide: (a) the upper/lower limits of price, (b) whether to accept an offer or make a counter offer, or (c) whether to abandon the negotiations. 7. Take action to approve an agreement concluding the real property negotiations. (Implied by (a)(1).) POSSIBLE RESPONSE TO HYPOTHETICAL #5-B The City Council can discuss and decide whether to employ an appraiser. However, the City Council cannot, in Closed Session, employ the appraiser. Section describes the scope of the real property transactions exception as being "... to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease." In Closed Session, as part of the negotiations process, the City Council can, for the purpose of developing a direction to its negotiator, discuss whether an appraiser should be employed to facilitate the negotiations. The City Council can ask its negotiator and staff for a recommendation concerning whether an appraiser should be employed. The City Council can grant its negotiator the authority: 1. To employ an appraiser; or

18 2. To place an item on the next Council Agenda for the City Council, in Open Session, to select and employ an appraiser. However, there is a strong argument that the City Council cannot, in Closed Session, itself select and employ an appraiser. It is not "granting authority" or "giving directions" to its negotiator for the City Council to select and employ an appraiser. An appraiser, who is not a City officer or employee, is not the type of independent contractor that can be employed by the City Council acting in Closed Session. (See 54957).