Labor negotiations and the Brown Act
Q: Our public school board evaluated the principal and voted to give him a raise, in a closed session, which I understand is legal since the evaluation is confidential. Should the vote on the bonus remain secret? I asked to know the breakdown of which board members voted which way on the bonus. Is that information protected against public disclosure? I did not ask the amount of the bonus, nor the results of the evaluation. I only asked for the breakdown of who voted which way.
A: Your inquiry raises several issues under the Brown Act. First, any discussion or action regarding the amount of a public employee’s compensation must be open to the public. Duval v. Bd. of Trustees., 93 Cal. App. 4th 902, 908 (2001); San Diego Union v. City Council, 146 Cal. App. 3d 947, 951 (1983). As you indicate, there is an exception to the open-meeting requirements of the Brown Act for certain employee evaluations. This “personnel exception” permits closed sessions to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.” Government Code 54957(b)(1). However, section 54957(b)(4) further provides: “Closed sessions . . . shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.” Thus, while an employee’s job performance can be discussed in closed session, including the initial determination that the employee should receive a raise or a bonus, the amount of any adjustment in compensation must be discussed and determined in an open meeting. San Diego Union v. City Council, 146 Cal. App. 3d 947 (1983).
Second, a closed session to evaluate a school principal’s job performance is probably improper in the first instance. The California Attorney General has expressed the opinion that the superintendent, and not the board, is authorized to appoint, discipline, and establish the salaries of “certificated” employees such as teachers and school principals. Where the superintendent, rather than the school board, is the employer, the board cannot hold closed sessions concerning a certificated employee’s appointment, employment, evaluation of performance, discipline, or dismissal, (even though closed sessions to discuss such matters may ordinarily permitted by the personnel exception to the Brown Act). This is because the superintendent, and not the board, is the relevant authority in charge of such matters, and therefore the board has no “substantial reason” for holding a closed session to consider them. See California Attorney General Opinion No. 01-505, 85 Ops Cal Atty Gen 77 (April 19, 2002).
Finally, even in situations where the personnel exception to the Brown Act is properly invoked, a school board would be required to report certain information to the public in open session. Gov Code 54957.1(a)(5) provides that a legislative body must report “any action taken in closed session and the vote or abstention on that action of every member present. . . . Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session . . . shall be reported at the public meeting during which the closed session is held.”
Q: I am a reporter for a college newspaper. The college is in the process of hiring a new president. Recently the board has had closed session meetings regarding the hiring, but they have been reporting no action taken until the last meeting. According to an email on behalf of the president of the board the following is what occurred during closed sessions, which they reported as no action at the meeting and in the minutes. A presidential search committee that was previously created by the board submitted their final two candidates for the presidential position and all other candidates from the pool where considered unacceptable. The board discussed this during closed session: they concluded that these two candidates were insufficient (no reason given), then they picked an additional four (but one declined the offer) from the pool. They decided that these five would then need to be interviewed. After reporting no action at the meeting, a few days later they gave the five names to our local newspaper, Whittier Daily News who printed the article with the names of the candidates on April 7. They then at the next meeting conducted their interviews with the candidates (in closed session) without an EEO monitor present.
At the next meeting, from these five they chose three as the finalists and they did report this closed session action. My question is did the board violate any laws they are subject to and which ones plus why.
A: The Brown Act generally requires that the “legislative bodies” of “local agencies” (including community college districts) hold their meetings open to the public. Assuming the board you refer to in your inquiry is the board of governors of the community college district, the board is a “legislative body” subject to the Brown Act’s open-meeting requirements.
Closed sessions to consider the appointment of a community college president very likely fall within a specific “personnel exception” to the Brown Act’s general mandate of open meetings. Specifically, Government Code section 54957 provides that closed sessions may be held regarding the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. Under this section, a legislative body can select, interview, and consider nominees for a position of public employment in closed session. See Gillespie v. San Francisco Pub. Library Com., 67 Cal. App. 4th 1165 (1998). Note that the right to hold a closed session under these circumstances extends not just to the board, but also to committees empowered by the board to consider candidates and make recommendations to the board. See California Attorney General Opinion No. 97-414, 80 Op. Atty Gen. Cal. 308 (Nov. 10, 1997). However, a closed session is only permissible if the body holding the closed session has some responsibility in connection with the hiring decision. See California Attorney General Opinion No. 01-505, 85 Op. Atty Gen. Cal. 77 (April 19, 2002).
The next issue raised by your inquiry is what “action” taken in closed session must be reported to the public. California Government Code 54957.1 provides: “The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention of every member present, as follows: . . . Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session . . . shall be reported at the public meeting during which the closed session is held.” Under this section only the final selection of a candidate for a position of public employment, and not nominations of candidates, must be reported to the public as “action taken” in closed session. Gillespie v. San Francisco Pub. Library Com., 67 Cal. App. 4th 1165 (1998).