Closed Session Voting
Q: In a closed session discussion, a vote was taken regarding the non-reelect of employees. After the vote two people were asked why they voted the way they did (they had not discussed their reasons against the action prior to the vote). Is the reason they gave for the way they voted confidential information?
A: As you may know, the Brown Act provides that a legislative body may hold a closed session to “consider the appointment, employment, evaluation or 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.” Cal Gov’t Code § 54957(b)(1). With regard to the confidentiality of closed sessions, the Brown Act provides that “a person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” Cal Gov’t Code § 54963(a). And, “[f]or purposes of this section, ‘confidential information’ means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter.” Cal Gov’t Code § 54963(b). The statute expressly provides that it is not a violation of this prohibition to disclose information that is not confidential. Cal Gov’t Code § 54963(d)(2).
In Harron v. Bonilla, 125 Cal. App. 4th 738, 747 (2005) (unpublished opinion), the court held that disclosure of the reasons a public employee was terminated in a closed session under Gov’t Code § 54957(b)(1) was impermissible under § 54963. The court took the position that “[c]ontrary to [board president’s] assertion, he had no duty to apprise the public of the reasons for [employee’s] termination; rather, [board president] was forbidden from divulging the nature of closed session discussions.” Id. Here, while discussions that took place during the closed meeting may be confidential, the reasons that a member voted a particular way should not be confidential, to the extent disclosure of those reasons does not also reveal communications made in the closed session. However, I would remind you that while a member may not be precluded from disclosing the reasons he or she voted a certain way, nothing in the Brown Act would require the member to do so, so it would be within the member’s discretion.