Closed meeting and the Brown Act
Q: I’m thinking about writing a letter of cure/correction regarding a pattern of what appear to be Brown Act Violations.
The district acted to correct the June 19 violation. According to a story we published previewing a meeting this past Tuesday, July 3: “After closed session on Tuesday, the board is scheduled to convene in open session to vote on ‘Amendment #11’ to the chief’s contract, according to the public meeting agenda. Details of the amendment will be available after the board finalizes it in closed session, said district spokeswoman. ‘They are going to make copies available to the public. The public will have a chance to review Amendment 11 before the board president calls for public input.'”
On July 3, the board presumably finalized Amendment 11 in closed session. When the board returned from closed session and reconvened in open session, the board president announced three action items before the board voted on each one individually. One item they OKed was a compensation issue – they agreed to pay for the superintendent’s contribution to a state retirement system, an amount worth 8 percent of his salary each year.
*The board president says the only obligation the district has regarding compensation issues is to “report out”. I don’t think this is true.
*I think listing the agenda item as “Amendment #11” to the superintendent’s contract was too vague considering the fact that they were considering the compensation issue. But I don\’t know if the listing was vague enough to warrant calling it a Brown Act violation, and wanted your help making a determination here.
*I think that by not meeting the district’s promised – published in a local newspaper article – of providing copies of the amendment to the public and time for public input on the contract after closed session, the board effectively denied the public the right to comment. Quite a few people were there hoping to comment, waiting until after closed session and not commenting during an earlier comment session. The board said the district should not have commented on how it would conduct the meeting because the board and district are separate entities. I was wondering if these actions violated the Brown Act.
If I do write a letter, I was hoping you could point me to relevant sections of the Brown Act and/or past cases that relate.
A: Your e-mail raises a number of issues. The Brown Act provides that agencies may hold closed sessions with a designated representative regarding salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.” Cal Gov. Code Section 54957.6 (see entire text of this section below). (Note that “employee” does not include “elected official[s]”, so if the Superintendent is elected, this provision may not apply.) Section 54957.6 also provides that “[c]losed sessions with the local agency’s designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency’s available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency’s designated representative” and that “closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.” Accordingly, final action to be taken with respect to the proposed compensation of unrepresented employees must take place in open session.
With respect to agenda listings, Section 54954.5 of the Brown Act provides suggested formats for closed session agenda listings and states that “[n]o legislative body or elected official shall be in violation of [notice requirements] if the closed session items were described in substantial compliance with this section.” For closed sessions held pursuant to Section 54957.6, the suggested format is:
Agency designated representatives: (names of designated representatives attending the closed session)
Unrepresented employee: (position title of unrepresented employee who is the subject of the negotiations)
In general, the Brown Act provides that agendas must contain “a brief general description of each item of business to be transacted or discussed at the meeting . . .. A brief general description of an item generally need not exceed 20 words.” Govt. Code Section 54954.2(a).
In Shapiro v. San Diego City Council, 96 Cal. App. 4th 904 (2002), the court affirmed a trial court’s holding that agenda listings in the nature of “In the matter of giving direction to the City Manager on behalf of the City of San Diego regarding real estate interests in the Centre City East area of downtown San Diego” were insufficient to give notice that issues such as the hiring of a ballpark manager and the effect of the redevelopment on the homeless population would be discussed. In an AG opinion cited by the Shapiro court, 73 Op. Atty Gen. Cal. 1, the A.G. held that listing approximately 700 parcels that might be the subject of negotiation in a closed session was insufficient to give notice that any particular parcels would be discussed. The A.G. rejected the argument that the list of 700 parcels would satisfy the agenda requirement even though the two parcels scheduled for review at a particular session had not otherwise been disclosed. Id. at *7. In another case, the California Court of Appeal held that an agenda item called “continuation school site change” was insufficient to give the public notice that the board would take action to close the school at issue. Carlson v. Paradise Unified School District, 18 Cal. App. 3d 196 (Cal. Ct. App. 1971). Although the agenda requirements in that case were imposed by a provision of the Education Code, the analysis should be similar under the Brown Act. Additionally, a 1984 California Attorney General opinion concluded that an agenda item called “Tuolumne River / San Joaquin River Flood Control Problem” was insufficient to give the public notice that action would be taken to oppose inclusion of the Tuolumne River in the National Wilderness Preservation System. 67 Ops. Cal. Atty. Gen. 84 (1984). The agenda requirements in this opinion were imposed by the Bagley-Keene Act, the state counterpart of the Brown Act. Again, the analysis under Bagley-Keene should be analogous to analysis under the Brown Act.
As for whether the references to “Amendment #11” were sufficient to provide notice that the matter at issue was a contribution to the Superintendent’s retirement account, it might be a close call. As you suggested, you might have an argument that the public had no way to know what “Amendment #11” meant.
Finally, even if the assurances made by the district spokesperson were made by the board itself, it is not clear that failing to abide by them would constitute a violation of the Brown Act, unless the assurances simply echoed requirements already imposed by the Brown Act. With respect to providing copies of the amendment, this would seem to be required by the Brown Act (Govt. Code Section 54957.5) and Public Records Act (Govt. Code Section 6251 and following). As for comment, the Brown Act provides that members of the public can comment “on any item of interest to the public, before or during the legislative body’s consideration of the item,” suggesting that comment should be allowed before or during each individual item. Govt. Code Section 54954.3. Conceivably, a single comment period at the beginning of the meeting could satisfy the letter of the law, but the Act seems to have been interpreted to provide for comment on each item. See, e.g., Chafee v. San Francisco Library Commission, 115 Cal. App. 4th 461, 469 (2004) (Brown Act and S.F. Sunshine Ordinance “mandated that a single general public comment period be provided be provided per agenda, in addition to public comment on each agenda item as it is taken up by the body”). Depending on the circumstances, you might be able to argue that it was impossible for the public to comment meaningfully until after the closed session, and that the lack of opportunity to comment violated Section 54954.3. It is not clear, however, that this would ultimately be found to be a Brown Act violation.
54957.6. (a) Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives.
Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency’s designated representatives.
Closed sessions, as permitted in this section, may take place prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees.
Closed sessions with the local agency’s designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency’s available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency’s designated representative.
Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.
For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings.
(b) 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.