Closed Session on Employee Performance
Q: I am hoping you can tell me whether language that appears in an upcoming school district agenda meets the requirements of the Brown Act.
This the language as it appears in the agenda:
• Public Employee, to consider appointment, employment, performance evaluation, or
dismissal of employee pursuant to GC §54957, as cited in the Brown Act (2 cases).
I understand from talking with two members of the Board of Education that this item refers to a discussion and possible vote by the Board on whether or not to renew contracts for the Deputy Superintendent and Assistant Superintendent.
How can the public know that this item refers to these positions when they are not named. Is the public being adequately noticed so that the Public Comment provided before the Closed Session can actually have meaning to the community?
A: The Brown Act provides that agendas must contain “a brief general description of each item of business to be transacted or discussed at the meeting . . .. A brief general description of an item generally need not exceed 20 words.” Govt. Code Section 54954.2(a). The general idea — as you suggested below –is that the agenda listing should provide notice to the public of the business to be conducted, so that interested community members know to attend and participate in the meeting.
The Brown Act further provides that “[f]or purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions” by giving particular types of information, depending on the reason for the closed session and that if this information is provided, the body will not have violated Section 54954.2. Govt. Code Section 54954.5. For example, for a closed session to appoint a public employee, the description of the position to be filled should be included and for a closed session to evaluate a public employee’s performance, the position title of the employee being reviewed should be provided. Id.
As you noted, it would seem to be difficult for members of the public to know from the description you gave below, “Public Employee, to consider appointment, employment, performance evaluation, or dismissal of employee pursuant to GC §54957,” that the board was considering whether or not to renew contracts for the Deputy Superintendent and Assistant Superintendent. Although Section 54954.5 does notrequire that agenda listings contain the particular information set forth in that section, the fact that the listing does not comply with the suggested listings of Section 54954.5 means that it might be impermissibly vague under Section 54954.2.
There is no bright-line rule, however, for determining whether a particular listing is misleading or too vague. Here are some examples, though, that might be useful in determining whether the listing at issue is too broad to satisfy the notice requirements of the Brown Act:
- InShapiro v. San Diego City Council, 96 Cal. App. 4th 904 (2002), the court affirmed a trial court’s holding that agenda listings in the nature of “In the matter of giving direction to the City Manager on behalf of the City of San Diego regarding real estate interests in the Centre City East area of downtown San Diego” were insufficient to give notice that issues such as the hiring of a ballpark manager and the effect of the redevelopment on the homeless population would be discussed.
- Even closer to the situation you describe is an Attorney General opinion, 73 Op. Atty Gen. Cal. 1, in which the A.G. held that listing approximately 700 parcels that might be the subject of negotiation in a closed session was insufficient to give notice that any particular parcels would be discussed. The A.G. rejected the argument that the list of 700 parcels would satisfy the agenda requirement even though the two parcels scheduled for review at a particular session had not otherwise been disclosed. Id. at *7.
- A California Court of Appeal held that an agenda item called “continuation school site change” was insufficient to give the public notice that the board would take action to close the school at issue. Carlson v. Paradise Unified School District, 18 Cal. App. 3d 196 (Cal. Ct. App. 1971). Although the agenda requirements in that case were imposed by a provision of the Education Code, the analysis should be similar under the Brown Act.
- A 1984 California Attorney General opinion concluded that an agenda item called “Tuolumne River / San Joaquin River Flood Control Problem” was insufficient to give the public notice that action would be taken to oppose inclusion of the Tuolumne River in the National Wilderness Preservation System. 67 Ops. Cal. Atty. Gen. 84 (1984). The agenda requirements in this opinion were imposed by the Bagley-Keene Act, the state counterpart of the Brown Act. Again, the analysis under Bagley-Keene should be analogous to analysis under the Brown Act.