Q: I submitted your Brown Act template regarding a closed meeting. The city attorney response was that it was ok to meet secretly to discuss other terms and conditions of employment with representatives of “.. .recognized employment organizations . . .” Government Code Section 3505. Please clarify.
A: The Government Code section you mentioned requires:
“[t]he governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, [to] meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, … and [to] consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.” Gov’t Code § 3505.
It does not address whether such meeting and conferring may be conducted in a closed session, but the Brown Act does provide some relevant direction.
Specifically, Gov’t Code § 54957.6 (which is part of the Brown Act) provides that “a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives.”
This section of the Brown Act also provides as follows:
Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency’s designated representatives.
Closed sessions, as permitted in this section, may take place prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees.
Closed sessions with the local agency’s designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency’s available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency’s designated representative.
Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees. For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings. ….
For the purposes of this section, 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.
Gov’t Code § 54957.6.
Note that even when a legislative body is permitted to meet in closed session under Gov’t Code § 54957.6, it must still take certain steps to keep the public informed about what is going on, including listing the closed session on the agenda and later reporting certain information in open session. As for the agenda listing, the Brown Act suggests the following form for describing a closed labor session:
CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of designated representatives attending the closed session) (If circumstances necessitate the absence of a specified designated representative, an agent or designee may participate in place of the absent representative so long as the name of the agent or designee is announced at an open session held prior to the closed session.)
Employee organization: (Specify name of organization representing employee or employees in question)
or
Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations)
Gov’t Code § 54954.5. An agenda listing that describes the closed session “in substantial compliance” with this format will not be subject to challenge. Id.
As for subsequent reporting, the Brown Act provides that “[t]he legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention on that action of every member present, as follows:
….Approval of an agreement concluding labor negotiations with represented employees pursuant to Section 54957.6 shall be reported after the agreement is final and has been accepted or ratified by the other party. The report shall identify the item approved and the other party or parties to the negotiation.” Cal Gov Code § 54957.1.
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.