School Board Closed Sessions with Administrators
Q: The School Board meets in Closed Session and apparently regularly invites a “leadership team” of administrators into the Closed Session. The administrators are not necessarily there to answer specific questions that are on the agenda of the Closed Session, but to merely be there in case questions come up.
I understand that board members who apparently know this to be a possible violation of the Brown Act, both current and former board members, are so far unwilling to speak up about this practice.
How can a member of the public then address this possible Brown Act violation? Inviting administrators regularly to a closed session with board?
Can a member of the public ask during Closed Session Report what persons, by name, attended that closed session, and, if there were indeed administrators, ask what the reasons were they were there?
A: Depending on the purpose for which the closed session was held (see below for a list of authorized purposes), the Brown Act permits governing bodies to include certain non-governing body individuals at closed sessions. As a general rule, “closed sessions may involve only the membership of the body in question plus any additional support staff which may be required depending on the matter to be discussed (e.g., attorney; labor negotiator; supervisor or witnesses if in connection with disciplinary proceeding, etc.). (26 Ops. Atty. Gen 34 (1965)). Closed sessions cannot be qualified by the selective invitation of certain persons into the discussion while excluding the general public. Those permitted to remain in the closed session with the body must serve some function essential to the confidential communication, not just sit in as convenient or desired observers. Given this information, it is unclear from the information in your inquiry whether there were any Brown Act violations. Specifically, it is not completely clear the purpose for the closed sessions and whether all of the people in attendance were necessary for such closed session discussions. Moreover, as a general matter, unless there is a valid reason for not disclosing the identities of non-governing body members in attendance at closed session, the public should be able to access this information in order to determine whether the Brown Act’s provisions were violated in this respect.
The Brown Act recognizes a number of distinct occasions when closed sessions are lawful. Legislative bodies may hold closed sessions for the following reasons:
-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, but note that the term “employee” does not include an elected official or a member of a legislative body (Gov’t Code § 54957)
-To discuss and decide whether an applicant for a license or license renewal who has a criminal record is sufficiently rehabilitated to obtain the license (Gov’t Code § 54956.7)
-To meet with its own representative prior to the purchase, sale, exchange, or lease of real property to grant authority to the negotiator regarding price and terms of payment (Gov’t Code § 54956.8)
-If it is contracted with the state to provide services to MediCal beneficiaries, then to hear a charge or complaint from a member enrolled in its health plan, if the member does not wish to have his or her name or other information that is protected by federal law publicly disclosed (Gov’t Code § 54956.86)
-To confer with legal counsel regarding pending litigation, when discussion in open session would prejudice the local agency in the litigation–see the Brown Act for a detailed definition of what constitutes “pending litigation” (Gov’t Code § 54956.9)
-To meet with law enforcement on “matters posing a threat to the security of public buildings or a threat to the public’s right of access to public services or public facilities” (Gov’t Code § 54957)
-To discuss salaries, salary schedules, fringe benefits, and other issues within the scope of negotiations between a local agency and its employees with the local agency’s representative in those negotiations.
There are a few other reasons that a closed session may be held. (See Gov’t Code section 54954.5).
Assuming the closed session was in violation of the Brown Act, a member of the public may seek to void an action taken at such meeting. The requirements for taking such an action require you to seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not. The requirements are very specific, they have very short deadlines, and they are generally strictly enforced. Generally speaking, the demand must be made within 90 days from the date the action is taken (but the demand must be made within 30 days if there is a violation of the agenda requirements set forth in Section 54954.2). If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline.
Alternatively, you may consider filing an action for injunctive or declaratory relief for the purpose of stopping or preventing violations or threatened violations under California Government Code section 54960, but this type of action will not have the effect of voiding the action that was already taken. The procedures and time limitations set forth in Section 54960.1 do not apply to Section 54960. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1288, 1290 (1999).