A&A: Closed Sessions under the Brown Act

Closed Sessions under the Brown Act

Q: The Situation: the Board of Education for a local district meets in closed session without any prior notification to the public. It makes a personnel decision during that closed session and announces it to the public.

Question: Is the unannounced closed session meeting in accordance with Brown Act or any other law?  If not, what are the legal ramifications of that meeting?

A: The Brown Act recognizes a number of distinct occasions when closed sessions are lawful, but the bodies must provide some information about the general nature of the closed session discussion in advance.  The Brown Act authorizes a closed session to discuss the appointment, employment, evaluation of performance, or dismissal of a public
employee.  In each of these cases, the agenda must specify the type of business to be discussed (i.e., appointment, employment, performance evaluation, or discipline/dismissal/release), and, for the first three, the agenda must specify the description of the position at issue.  The agenda need not specify the description of the position with regard to a closed session held to discuss public employee discipline/dismissal/release.  See Government Code section 54954.5(d).

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). CFAC’s website contains a link to the statute for your reference:  http://www.cfac.org/content/index.php