Brown Act Primer: Closed sessions

Access to MeetingsV. When may the public be excluded?

The public may not be excluded from a meeting, except as expressly authorized by the Brown Act.

A public body may exclude the public from meetings, holding what are called “closed sessions” or “executive sessions,” in the following circumstances:

(1) to determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain the license;

(2) to with its negotiator to grant authority regarding the price and terms of payment for the purchase, sale, exchange, or lease of real property;

(3) to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation;

(4) to meet with the Attorney General, district attorney, agency counsel, sheriff, or chief of police, or their respective deputies, or a security consultant or a security operations manager, on matters posing a threat to the security of public buildings, a threat to the security of essential public services, or a threat to the public’s right of access to public services or public facilities;

(5) 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;

(6) to meet with the local agency’s designated representatives regarding the salaries, salary schedules, or fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.

There are also a number of other narrow circumstances in which closed sessions may be held.

However, although there are many provisions permitting closed sessions, certain provisions are more commonly invoked, and hence are more frequently the subject of questions and disputes. Those provisions are discussed below.

A. Meetings with a body’s negotiator prior to the purchase, sale, exchange or lease of real property in order to grant authority to the negotiator regarding the price and terms of payment.

  • The closed session notice should state the address of the property, the identity of the negotiator, and whether the instruction will concern price, payment terms, or both.
  • Prior to the closed session, the public body must hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate.
  • Note: This provision has been the subject of considerable abuse. For example, government agencies involved in enormous, multi-faceted transactions have used a real property portion of the potential transaction to discuss the entire matter in secret. It has also been invoked to cover meetings attended by representatives of the adverse party in the negotiation.

B. Meetings to discuss “pending litigation.” This exception has been carefully crafted due to frequent past disputes.

  • Litigation is any adjudicatory proceeding.
  • Pending litigation is:

(a) litigation formally initiated to which the body is a party;

(b) a situation where, based on the advice of counsel taking into account “existing facts and circumstances” there exists a “significant exposure” to litigation; or
(c) when the agency itself has decided or is deciding whether to initiate litigation.

  • For existing litigation, the closed session notice should state the name of the case or parties (unless it would jeopardize service of process or existing settlement negotiations), and for anticipated litigation or litigation the agency is considering initiating, it should state the number of potential cases.
  • Prior to holding a closed session pursuant to this section, the legislative body of the local agency must state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision
    • (a), the body must state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

C. Meetings with law enforcement or security consultants about threats to the security of public buildings, to essential public services, or to the public’s right of access to public services or public facilities;

  • The closed session notice should identify the law enforcement agency and state the name and title of the law enforcement official.
  • Note: Expect to see this exception invoked with increasing frequency.

D. Meetings to discuss the appointment, employment, evaluation of performance,discipline or dismissal of a public employee or to hear complaints brought against the employee.

1. The closed session notice should state the position to be filled or the title of the employee being reviewed. It need not do so in the case of complaints. tippy title =”59″] 59. Gov’t Code § 54954.5(e).[/tippy]
2. Note: An elected official is not a public employee.
3. Note: The employee may request a public hearing.

NOTES

43 Gov’t Code § 54956.7.
44 Gov’t Code § 54956.8.
45 Gov’t Code § 54956.9.
46 Gov’t Code § 54957(a).
47 Gov’t Code § 54957(b).
48 Gov’t Code § 54957.6(a).
49 See Gov’t Code §§ 54956.86, 54956.87, 54956.95, 54957.8, and 54957.10. Because these provisions have much
more limited application, they are not addressed here
50 Gov’t Code § 54956.8.
51 Gov’t Code § 54954.5(b).
52 Gov’t Code § 54956.9.
53 Gov’t Code § 54956.9(a), (b), (c).
54 Gov’t Code § 54954.5(c).
55 Gov’t Code § 54959.
56 Gov’t Code § 54957(a).
57 Gov’t Code § 54954.5(e).
58 Gov’t Code § 54957(b)
59 Gov’t Code § 54954.5(e).
60 Gov’t Code § 54957(b)(4).
61 Gov’t Code § 54957(b)(1).
62 Gov’t Code § 54954.5(f).

43. Gov’t Code § 54956.7.
44. Gov’t Code § 54956.8.
45. Gov’t Code § 54956.9.
46. Gov’t Code § 54957(a).
47. Gov’t Code § 54957(b).
48. Gov’t Code § 54957.6(a).
49. See Gov’t Code §§ 54956.86, 54956.87, 54956.95, 54957.8, and 54957.10. Because these provisions have much more limited application, they are not addressed here.
50 Gov’t Code § 54956.8.
51 Gov’t Code § 54954.5(b).
52. Gov’t Code § 54956.9.
53. Gov’t Code § 54956.9(a), (b), (c).
54. Gov’t Code § 54954.5(c).
55. Gov’t Code § 54959.
56. Gov’t Code § 54957(a).
57. Gov’t Code § 54954.5(e).
58 Gov’t Code § 54957(b).
 60. Gov’t Code § 54957(b)(4).
61. Gov’t Code § 54957(b)(1).[/tippy}

E. Meetings with its agents to discuss specific collective bargaining negotiations, but only with respect to reviewing the position of the employee organization and instructing the agents regarding those specific negotiations.

1. The closed session notice should state the name of the agency negotiator and the employee organization with whom the agency is negotiating. If the agency is negotiating with unrepresented employees, the notice should identify their positions.62 Gov’t Code § 54954.5(f).