A&A: Convening in closed sessions

Convening in closed sessions

Q: Our school board will be visiting the school site/employer of the finalist in our District superintendent search.  We are a 5-member board and 4 trustees want to participate in the site visit, which will be outside our District boundaries.  We want to fully investigate the performance of our finalist with face-to-face interviews with co-workers, parents, community members, etc.

We fully intend to post an agenda once we determine who our finalist will be.

Can we convene a closed session?

Do you have suggested wording to include in the agenda?

A: The first issue you raise in your submission is whether the visit by four out of five members of the board to the school site in connection with your search for a superintendent constitutes a meeting.  The Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”  Govt. Code § 549523.2(a).  To the extent that there will be communication at that visit among a majority of the members of the board concerning matters within the board’s subject matter jurisdiction (i.e., search for a superintendent), resulting in a collective concurrence as to action that will be taken on an agenda item, this may be a meeting for purposes of the Brown Act, requiring notice and compliance with other Brown Act provisions.

As the Attorney General has explained:

“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions.  … Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”

The Brown Act: Open Meetings for Local Legislative Bodies, p. 12 (Cal. Atty General’s Office 2003).

With respect to whether the board can hold a closed session to discuss the supervisor search and appointment, the answer to that question is yes.   Government Code Section 54957 provides that boards may hold closed meetings 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 to suggested wording to include in the agenda, Government Code Section 54954.5 provides some suggested descriptions for closed session items.  With respect to the appointment/employment of a public employee, that section states that legislative bodies are in substantial compliance if they include the following information:

(1) Public Employee Appointment
Title:  (Specify description of position to be filled)


(2) Public Employment
Title:  (Specify description of position to be filled)