A&A: Dealing with a cure and correct notice in a closed session

Dealing with a cure and correct notice in a closed session

Q: The school board I am a member received a cure and correct challenge regarding an action taken in closed session to dismiss an employee.  The cure and correct involves whether proper notice was given for the meeting.  The president and superintendent have placed the response to the cure and correct claim on next week’s agenda.  They are saying it is a closed session item as it involves an employee dismissal and potential legal action.  I am thinking our discussion of the cure and correct should be in open session as we need to discuss whether we properly followed the Brown Act in the afore mentioned meeting not the actual employee dismissal.  My understanding is this sort of discussion is not allowed to be closed under the Brown Act.  Please let me know if it is legitimate to hold a cure and correct discussion in closed session.

A: 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.”  (Full text of Section 54957 reproduced below.)

A discussion of whether the board had previously provided proper notice of a closed session held to discuss employee issues would not seem to fall under this fairly narrow category of employee-related topics that may be discussed in closed session.  Particularly in light of the provision of the California Constitution that provides that a “statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access,” it seems appropriate to interpret Section 54957 to mean what it says — that only those specifically listed topics related to employees may be discussed in closed session.  Cal. Const., Art. I, Sect. 3(a)(2).

With respect to the “pending litigation” justification for closed sessions, Section 54956.9 provides that a board may, “based on advice of its legal counsel, [hold] a closed session 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.”  (Full text of Section 54956.9 reproduced below.)  All of these requirements must be met in order to justify the closed session.  Accordingly, unless the board was advised by legal counsel to hold a closed session to confer with counsel about the cure-and-correct letter and unless discussing the propriety of the board’s challenged action in open session would prejudice the position of the board, then Section 54956.9 would not authorize a closed session here.