Legal Action Against a Board Member in Closed Session
Q: Is it legal for the superintendent and board president to put under closed session anticipating legal action regarding a board member without notifying that board member of the reasons, etc.?
A: Your inquiry raises two issues under the California Brown Act: (1) whether a closed session may properly be held under the Brown Act regarding anticipated “legal action” regarding a board member, and (2) whether the Brown Act requires notification to the board member who is the subject of the legal action.
First, the Brown Act authorizes closed sessions only for certain reasons expressly permitted by statute. Cal. Gov’t. Code § 54962. Closed sessions may be held when necessary “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.” Cal. Gov’t Code § 54956.9. Under this section there is “pending” litigation justifying closed session where (a) the local agency is a party to litigation that has been formally initiated, (b) certain specified facts and circumstances exist such that there is a significant exposure to litigation against the local agency or where the legislative body is meeting only to decide whether a closed session is authorized, or (c) “[b]ased on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.” Cal. Gov’t. Code § 54956.9(a)-(c).
Second, I am unaware of any authority which would require notice directed specifically to the affected board member. (This is in contrast to a closed session held “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.” Cal. Gov’t. Code § 54957(b)(1). Under this provision, the employee must be given 24-hours’ written notice of his or her right to have the complaints heard in open session rather than closed session. Cal. Gov’t. Code § 54957(b)(2). Without this notice, any action taken based on the complaints or charges in the closed session are null and void. Id. For purposes of this section, however, “employee” does not include “member of a legislative body.” Gov’t. Code § 54957(b)(4).)
However, Cal. Gov’t. Code § 54956.9 states that, prior to holding a closed session regarding pending litigation, the legislative body must state on the agenda or publicly announce the subdivision of Section 54956.9 that authorizes the closed session. For instance if a closed session is being held because the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation, the legislative body must announce that a closed session is being held pursuant to Section 54956.9(c). Also, if the closed session is regarding litigation to which the local agency is a party and that has been formally initiated, the legislative body must state the title of or otherwise specifically identify the litigation to be discussed, unless the legislative 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 the agency’s ability to conclude existing settlement negotiations to its advantage.
Moreover, legislative bodies must provide some information about the general nature of the closed session in advance, by a statement in open session, by a listing on the posted agenda, or — typically — by both. The Brown Act makes it clear, therefore, that a body’s meeting cannot begin in closed session. The closed session in every instance must be preceded by an announcement which informs the public, even if only by reference to the posted agenda, of the nature of the discussion to take place in closed session. See Government Code § 54957.7, which provides:
(a) Prior to holding any closed session, the legislative body of the local agency shall disclose, in an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda. In the closed session, the legislative body may consider only those matters covered in its statement. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law.
(b) After any closed session, the legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by Section 54957.1 of action taken in the closed session.
(c) The announcements required to be made in open session pursuant to this section may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location for the purpose of hearing the announcements.