Q: Last weekend our son’s 4th grade teacher was fired from her “at will” employment at a local charter school. The board held a Regular Meeting and decided “immediate action” had to be taken. The teacher did not receive 24 hours notice about the meeting but was asked if she wanted to speak for five minutes on her behalf when she happened to walk by the meeting.
The board then held a closed session and decided to terminate her. They had been “investigating her” for a while, so shouldn’t she have had 24-hours notice? The Board responded that they did not need to, since there were no “complaints” or “charges,” but that makes no sense to me.
Second, the school decided to put one of the administrators involved in terminating the teacher into the classroom to replace her this past week. Several students have not wanted to return to school, and one of them was just reported for truancy. Most of the class parents wrote letters to the Board, and we haven’t received much of a response. What can be done for this injustice? Also, do we need a lawyer to send a Cure and Correct demand letter, or can we go ahead and send that as parents?
A: I’m sorry to hear about your son’s teacher, who sounds like she was well-liked among her students and their parents. There may be several issues related to the Brown Act implicated here, so I will address each in turn.
First, with respect to both the school board’s regular meeting and closed session, you might want to investigate whether discussion of this teacher’s employment was on the agenda in the first place.
Under California’s open meeting law, known as the Brown Act, “[a]t least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.
A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public.” Govt. Code § 54954.2.
Was there any indication on the agenda for the regular meeting and the closed closed session meeting that the board would discuss personnel matters?
With respect to the agenda description itself, in general, the Brown Act gives little guidance as to the extent of information that must be provided on an agenda regarding a certain item, providing only that agendas must contain “a brief general description of each item of business to be transacted or discussed at the meeting. … A brief general description of an item generally need not exceed 20 words.” Govt. Code Section 54954.2(a).
However, with respect to “every item of business to be discussed in closed session pursuant to Section 54957” (i.e., appointment or employment of a public employee, discussed below), the Brown Act specifies that, at least in connection with the appointment of a public employee or employee performance evaluation, the title of the position of the employee being hired or reviewed must be specified. Gov’t Code § 54954.5(e).
Where discipline/dismissal/release of a public employee is being considered, the Act only requires, in order to be in “substantial compliance” with the Act, that something to the effect of these words — e.g., PUBLIC EMPLOYEE DISMISSAL” — be posted on the agenda, but does not require the specific title of the employee being considered for such action be listed on the agenda as well. Id.
Indeed, the Court of Appeal held in Moreno v. City of King that an agenda description for a closed session that merely described the business to be transacted as “Public Employee (employment contract),” when a quarter of the meeting was actually devoted to a discussion of whether to terminate the employee at issue, was inadequate notice under the Act. 127 Cal. App. 4th 17, 27 (2005):
“The agenda’s description provided no clue that the dismissal of a public employee would be discussed at the meeting. The City argues that further specification would have violated Moreno’s privacy rights. Not so. As section 54954.5 illustrates, an agenda that said simply “Public Employee Dismissal” would have provided adequate public notice of a closed session at which the Council would consider Moreno’s dismissal.” Id. Government Code § 54954.5(e)
Considered together with Moreno, it is indicated that agenda items must be worded to give the public notice that a specific topic will be discussed, and it would seem that in the situation that you describe, the agenda should have probably indicated that the board was considering potential termination/dismissal of one of the school district’s employees, even if it was not required to identify the employee by title or name.
As indicated in Moreno, “Public Employee Dismissal” would have sufficed. Thus, you may want to carefully review the agenda for both the regular and closed session meeting at issue to see if sufficient notice was provided.
Of course, there are situations where legislative bodies may hold meetings that are closed to the public, including meetings to consider the appointment or employment of a public employee. See Cal. Gov. Code §54957(b)(1).
Specifically, an 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.” Gov. Code §54957(b)(1).
However, “[a]s 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.” Gov. Code §54957(b)(2).
Courts have drawn a distinction “between meetings to hear complaints and charges against an employee and meetings to consider whether those complaints and charges justify dismissal or other disciplinary action.” Morrison v. Housing Authority of the City of Los Angeles Bd. of Comm., 107 Cal. App. 4th 860, 872 (2003).
Courts have held that under 54957(b)(2), notice is not required “when an agency proposes to ‘consider’ in closed session whether charges or complaints against an employee justify dismissal. If, however, the agency proposes to ‘hear’ the charges or complaints in closed session it must give the employee notice of the right to demand an open session.” Id.
From what I understand of the situation that you describe, the school board is denying that its dismissal was based on any specific complaints or charges that were brought against this teacher by “another person or employee.”
The school board’s position, then, seems to be that facts related to its justification for the teacher’s dismissal did not originate with some other individual, but rather appeared before the school board organically. It is difficult to believe that a school administrator, another teacher, a student, a parent, or some other third person was not the individual that originally brought concerns related to this teacher before the school board. You mentioned that one of the administrators involved in her dismissal has taken her place in the classroom, so it could be possible that this individual brought the charges that led to her dismissal. Of course, since the session was closed, it may be difficult to figure out exactly what facts led to the teacher’s dismissal.
Finally, under the Brown Act, legislative bodies are required to report at a public meeting immediately following the closed session any action taken in closed session to appoint, employ, dismiss, accept the resignation of or otherwise affect the employment status of a public employee. Gov’t Code § 54957.1(a)(5). The report must identify the title of the position. Id. However, if the action involved a dismissal or of the nonrenewal of an employment contract, the report will be deferred until the first public meeting following the exhaustion of administrative remedies, if any. Id.
As for remedies, the teacher herself may want to look into what administrative procedures she might have at her disposal to appeal her dismissal. The school district may have some process available that permits her to appeal the decision.
As for your/the public’s remedies, if you feel that the Brown Act was violated based on the information provided above, you may want to send the school board a letter demanding that it cure or correct the action taken in violation of the Brown Act:
“The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days — but sometimes within 30 days — of the action. Id.
It is not necessary that this demand come from an attorney; any individual may make such a demand. If the agency does not cure or correct with the prescribed time limitations, the next step would be to seek a judicial determination that the board’s actions are null and void. Gov’t Code § 54960.1(a).
A citizen who prevails in an action to enforce the Brown Act may be entitled to recover attorneys’ fees. The details of this enforcement procedure are set out in Section 54960.1 of the Government Code. (see https://firstamendmentcoalition.org/brown-act/).
Again, it is not necessary that an attorney file any court action, although if you reach this stage with the school board, you may want to seek assistance in order to ensure that the proper procedure is followed.
Another option is bringing an action to seek a judicial determination that a particular action violated the Brown Act. Gov. Code § 549560. Under that course of action, nothing is nullified — a successful litigant simply ends up with a court order stating that the action at issue violated the Brown Act (and that the legislative body should not do it again).
You can find additional information about enforcing the Brown Act at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-meetings/.
I wish you the best of luck in your endeavors, and hope that the remainder of the school year goes well for you and your family despite these events.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.