Q: Our Unified School District is always walking a very fine line when it comes to the Brown Act.
At the last Board of Trustees meeting, the superintendent stated, and three trustees confirmed, that the district has come up with a plan to tackle the multimillion-dollar shortfall it’s expecting for the next school year. The superintendent said the board discussed this in closed session “under the guise of labor negotiations.” The problem is, they haven’t entered negotiations yet.
At the same meeting that he made this statement, the trustees accepted the contract openers for two of the unions. To my knowledge there haven’t been any formal negotiations, only anticipation of negotiations.
The trustees do have “conference with labor negotiators” on their closed session agenda every meeting. The superintendent is the board’s labor negotiator.
- Doesn’t a budget “strategy” that has been “articulated in great detail” need to be discussed in open session? The superintendent announced the district has found $11 million in cuts it can make without employee concessions. What these are, no one knows, as it has never been on an open agenda.
- How far can closed sessions go under the guise of conference with labor negotiators if there are no active labor negotiations?
- How fair is it for the district to agendize closed sessions with a labor negotiator if there are no active labor negotiations?
A: As you are aware, the Brown Act generally requires that all meetings of covered agencies be open to the public, subject to certain exceptions. However, school districts are subject to their own provisions of law relating to meetings, both generally, see Education Code sections 35144 and 35145, and with respect to labor negotiations specifically, see the Rodda Act, Govt. Code section 3549.1. See San Mateo Sch. Dist. v. Public Employment Relations Bd., 33 Cal. 3d 850 (1983).
Section 3549.1 specifically exempts the following meetings from the open meetings provisions of both the Education Code and the Brown Act:
(a) Any meeting and negotiating discussion between a public school employer and a recognized or certified employee organization.
(b) Any meeting of a mediator with either party or both parties to the meeting and negotiating process.
(c) Any hearing, meeting, or investigation conducted by a factfinder or arbitrator.
(d) Any executive session of the public school employer or between the public school employer and its designated representative for the purpose of discussing its position regarding any matter within the scope of representation and instructing its designated representatives.
A separate provision of the Rodda Act, Govt. section 3547 requires that initial proposals to the negotiating units and the decision to adopt such proposals must be made at public meetings and that the public must be afforded the opportunity to comment prior to further negotiating. That section anticipates that there will be a closed meeting prior to the initiation of labor negotiations.
Indeed, the district is not able to make an initial offer:
“(a) All initial proposals of exclusive representatives and of public school employers, which relate to matters within the scope of representation shall be presented at a public meeting of the public school employer and thereafter shall be public records.
(b) Meeting an negotiating shall not take place on any proposal until a reasonable time has elapsed after the submission of the proposal to enable the public to become informed and the public has the opportunity to express itself regarding the proposal at a meeting of the public school employer.
(c) After the public has had the opportunity to express itself, the public school employer shall, at a meeting which is open to the public, adopt its initial proposal.”
Therefore, the question seems to be whether the meeting is an “executive session of the public school employer for the purpose of discussing its position regarding any matter within the scope of representation and instructing its designated representatives.”
As you can see, nothing in this section authorizes the school board to use the closed session for anything other than matters that would need to be negotiated with the public employee unions.
Thus, to the extent the budget strategy sessions never had a dimension that would affect the board’s position with respect to labor negotiations, such discussions would not be permissible in the closed session. And certainly, the closed session permitted by section 3549.19d) certainly cannot be used as a “guise” to discuss other matters.
But if the discussion did include the proper subject matter, it is permissible if those discussion were in advance of any labor negotiations.
As to your third question: it is permissible, and indeed, fairly common practice to notice commonly recurring sessions just in case the need to have the discussion comes up. Of course, if at the meeting there is actually nothing to discuss, the agenda item may be skipped over.
The Brown Act bars the agency from addressing matters that are not on the agenda. But it does not compel discussion of matters placed on the agenda for which there ends up being no need for discussion at the meeting.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to inquiries, we can give general information regarding open government and freedom of speech issues but cannot provide specific legal advice or representations.