Discussion of Employee Termination in Closed Session
Q: In 2007, the City held its last budget study session and on the closed session my job, as Director of Finance, title or position was never put on for discussion, nor was my job title put on for closed session since I started with the City. The next morning the mayor and the City manager were waiting for me to terminate my employment with the City. The City council members and City manager have been going into closed session to discuss the City Managers’ position in closed session for about 8 months and he just signed his 2 year contract back in May/June. Their former City Attorney has warned them of violating the Brown Act on several occasions within a memo (have copy of memo).
On September 26, 2007 I was at the sewer workshop meeting when I brought up the fact that the City did not follow Prop. 218 guideline when increasing sewer rates in 2006. At that point the City council made a motion to go into closed session after the workshop. Is it legal to go into an emergency closed session when the next council meeting was on Oct. 1, that following Monday?
A: There are a number of issues that you raise in your submission. I will try to address each of them in turn.
First, with respect to the decision to terminate you from your job as the Director of Finance, such discussion must be properly agendized and discussed during a properly noticed open or closed session (though not necessarily at the open or closed session immediately prior to your termination). As you seem to know, under section 54957 of the Brown Act, the legislative body of a local agency may hold a closed session “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.” The agenda announcing such item can simply state: “Public Employee Discipline/Dimissal/Release.” The agenda does not need to include any additional information such as the position, job title, or name of the employee. You might want to look back at previous agendas to determine whether the city may have included something along these lines, which may indicate that such discussion took place. However, you should also know that if such session dealt with specific complaints and charges against you, you should have been entitled to a 24-hour written notice of that fact informing you of your right to have the complaints or charges aired in an open session. The law even mandates that the employee be reminded of this right and declares null and void any disciplinary action taken in a closed session where the notice was not given: “If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.” Gov’t Code § 54957.
Now, if you suspect that the city council discussed your dismissal outside the presence of the public (in other words, not during an open or closed session), please note that such action may constitute a violation of the Brown Act. The Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” (Govt. Code § 549523.2(a)). Section 54952.2(b) provides that “except as authorized pursuant to section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action taken on any item by the members of the legislative body is prohibited.”
The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc). To the extent there was communication that concerned matters within the city council’s subject matter jurisdiction (such as dismissal of a public employee) and the communication was among a majority of its members, this is probably a violation of the Brown Act.
As the Attorney General has explained:
“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions. … Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”
The Brown Act: Open Meetings for Local Legislative Bodies, p. 12 (Cal. Atty General’s Office 2003).
Second, with respect to the city council’s closed session to discuss the appointment of a new City Manager, as stated above, the Brown Act permits a legislative body to hold a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.” Gov’t Code § 54957. Unless the city council failed to give proper notice of such items on the agenda and/or failed to properly disclose any decisions that may have taken place immediately after the closed session (see Gov’t Code § 54957.1), it does not appear (at least from the information in your submission) that the city council acted in violation of the Brown Act.
Third, before addressing whether it was proper for the city council to hold an emergency closed session during the sewer workshop, we must address whether such workshop constitutes a meeting for purposes of the Brown Act. As stated above, the Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” Govt. Code § 549523.2(a). To the extent the workshop was attended by a majority of the members of the city council and communication concerning matters within the city council’s subject matter jurisdiction took place, the workshop constitutes a meeting for purposes of the Brown Act, in which case they would require notice and compliance with all other Brown Act provisions.
Assuming that the workshop constitutes a meeting for purposes of the Act, the next question is whether it was proper for the city council to call an emergency meeting and whether such emergency meeting can be held in closed session.
The Brown Act permits a legislative body to discuss a nonagenda item at a regular meeting if, by majority vote, the body determines that the matter in questions constitutes an emergency. The Brown Act provides for emergency meetings to be held by a legislative body with little or no notice to the public, depending upon the situation. When a majority of the legislative body determines that an emergency situation exists, it may call an emergency meeting. (Gov’t Code § 54956.5). According to the California Attorney General’s Office, the Brown Act defines an emergency as a crippling activity, work stoppage or other activity which severely impairs public health, safety or both. (Gov’t Code § 5795605(a)(1)). Absent a dire emergency, at least one hour before the meeting, telephonic notice must be provided to all media entities that have requested that they receive notice of any special meetings called pursuant to section 54956. (Gov’t Code § 54956.5(b)). In the case of a dire emergency, notice need only be provided at or near the time that notice is provided to the members of the body. (Gov’t Code § 54956.5(b)). A dire emergency is a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting may endanger the pubic health, safety, or both, as determined by a majority of the members of the legislative body. (Gov’t Code § 54956.5(a)(2)). At the conclusion of such meeting, the minutes of the meeting, a list of persons who the legislative body notified or attempted to notify, a copy of the roll call vote, and any actions taken at the meeting must be posted for a minimum of 10 days in a public place as soon after the meeting as possible. (Gov’t Code § 54956.5(e)). From the information in your submission, it does not appear that the city council had a dire emergency in its hands that would allow them to dispense with the notice requirements. In addition, emergency meetings must be entirely public. The Brown Act does not permit closed door discussions when meeting under this section. Gov’t Code § 54956.5.
Finally, if you consider that the city council has violated Brown Act provisions, you may consider taking additional steps available under the Act. Pursuant to the Brown Act, you may seek to void an improper action taken at an illegal 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. However, if there is a violation under section 54954.2 (agenda requirements), such demand must be made within 30 days of the action. If the legislative body fails to cure or correct the action within 30 days from receipt of the demand, you must file the lawsuit within 15 days after the expiration of those 30 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline. CFAC’s website contains a link to the statute for your reference. If you are considering engaging legal counsel to represent you in this matter, you might try using the CFAC Lawyer’s Assistance Request service at
http://cfac.org/Lawyers/lawyers_rfp.html.