Q: Is a Current County CEO appointed by a Board of Supervisors allowed to sit in on the closed door meeting of interviewing new CEO candidates when 3 of the 6 inside candidates from the County work in the CEO’S Office. While this may be legal it is very troublesome because of power the current CEO wields with the Board of Supervisors. She may want her anointed one. Is there Brown Act laws which would preclude the CEO from being present during these interviews? Or would we be reliant on the local counties ordinances.
A: The provision of the Brown Act that can sometimes authorize the legislative body of a local agency to hold a closed session to consider personnel issues provides that:
(1) Subject to paragraph (2), nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting 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.
(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. 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.
(3) The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.
(4) For the purposes of this subdivision, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. Nothing in this subdivision shall limit local officials’ ability to hold closed session meetings pursuant to Sections 1461, 32106, and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code. Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.
Cal Gov Code § 54957(b).
Although the Brown Act does not specifically address who — other than the body’s members — may attend a closed session, Attorney General opinions have emphasized that it is not permissible to hold a “semi-closed” session where some members of the public are admitted and all others excluded. See 86 Ops. Cal. Atty. Gen. 210, 215 (Cal. AG 2003). “The general rule is that closed-session access is permitted only to people who have ‘an official or essential role to play’ in the closed meeting.” Id.
Accordingly, the current CEO should be permitted to attend only if she has “an official or essential role to play” in the closed meeting.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.