A&A: Does the Brown Act allow closed sessions to appoint legal firm?

Q: Our local water district board is appointing new general counsel. They have agendized this in a special meeting, allowing each prospect to give a presentation on their firm in open session. After each presentation, the board went into closed session pursuant to GC 54957(b)(1), ”Public Employee Appointment: General Counsel.” I have never seen this done before. Can a legislative body refer to General Counsel as a ”Public Employee” and use this GC as safe harbor for closed session?

A: As you are aware, California Government Code § 54957(b)(1) is a provision of the Brown Act that grants agencies the right to hold closed session meetings to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.

Yet, the California Constitution and a series of case law requires that the provisions of the Brown Act permitting closed sessions be “narrowly construed.” Cal. Const., Art. I, section 3(b)(2). See also, e.g., Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 185 (2006); Shapiro v. Board of Directors, 134 Cal. App. 4th 170, 174 (2005).

That said, California courts have stated that the purpose of the exception is to prevent undue embarrassment to public employees or candidates, and to permit free and candid discussions of personnel matters. Morrison v. Housing Authority of the City of Los Angeles Bd. of Commissioners, 107 Cal. App. 4th 860, 873 (2003); Bollinger v. San Diego Civil Service Commission, 71 Cal. App. 4th 568, 574-575 (1999).

Moreover, a great deal of the language from Gov’t Code § 54957(b)(1), including what an “employee” is, has been defined by other sections of the statute and the courts. Under the code, an “employee” is defined to include officers and independent contractors who function as employees. Gov’t Code § 54957(b)(4). Therefore, the statute is not limited to rank-and-file employees. See Lucas v. Board of Trustees, 18 Cal. App. 3d 988, 990 (1971); 80 Ops. Cal. Atty. Gen. 308 (1997).

Turning now to your question, it seems that the legislative counsel can refer to the general counsel applicants as a “public employee” for the sake of using the safe harbor afforded by Gov’t Code § 54957(b)(1). For one, a subsequent section of the statute indicates that independent contractors, which the law firm of the general counsel would be, fall under the statute. Further, there is precedent indicating that applicants are within the scope of the statute’s intent. I see little reason why the water district board would be in violation of the Brown Act.

Bryan Cave 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.

One Comment

  • Q: Our local water district board is appointing new general counsel. They have agendized this in a special meeting, allowing each prospect to give a presentation on their firm in open session. After each presentation, the board went into closed session pursuant to GC 54957(b)(1), ”Public Employee Appointment: General Counsel.” I have never seen this done before. Can a legislative body refer to General Counsel as a ”Public Employee” and use this GC as safe harbor for closed session

    From FAC Answer:
    “Turning now to your question, it seems that the legislative counsel can refer to the general counsel applicants as a “public employee” for the sake of using the safe harbor afforded by Gov’t Code § 54957(b)(1). For one, a subsequent section of the statute indicates that independent contractors, which the law firm of the general counsel would be, fall under the statute. Further, there is precedent indicating that applicants are within the scope of the statute’s intent. I see little reason why the water district board would be in violation of the Brown Act.”

    Comment by Hal Weber:

    It seems to me that if “Bryan Cave LLP is general counsel for the First Amendment Coalition”, he would take the position that a “new general counsel” could NOT be considered to be a ”Public Employee” prior to first being appointed by the “water district board”, and therefore this initial appointment could NOT be done in closed session.

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