Q: I am a member of a school board that recently voted to support a settlement agreement with a six-figure employee who we terminated. The settlement was designed to make the costs related to the termination finite. I supported the termination and opposed the settlement for a variety of reasons. It has come to light today, that a significant incorrect fact was given to us in closed session which I believe may very well have led to a different result on support of the settlement. Nonetheless, I don’t think I’ll find support from my co-board-members by reopening this issue and I would like to know what, if any options I have for going outside of the board for resolution. My goal would be to unwind the vote if at all possible, and re-vote under the correct facts. If that were not possible, I would like to let the public know that these incorrect facts were used in the discussions of the ultimate conclusion. Any advice would be appreciated.
A: The Brown Act itself only governs the extent to which government meetings need be open and accessible to the public. It does not otherwise speak to the validity of governmental action. So the Brown Act itself does not provide any basis for overturning the decision on the basis of the error.
But I think your main concern is with what legal protections you have to disseminate the information you have obtained. As a general matter, you have an almost absolute right to disseminate information that is of public interest, provided that you did not break any laws in obtaining the information (but even if you suspected that your source did). Bartnicki v. Vopper, 532 U.S. 514 (2001).
Further, to the extent you are disclosing any type of official misconduct, your act of disclosure may be protected by a whistleblower protection law. However, if you have agreed not to disclose the information, you may be legally responsible for any damages that are caused because someone else relied on your promise not to disseminate the information, or any damages provided for in any contract that you may have entered into that contained your hypothetical promise not to disclose. Cohen v. Cowles Media, 501 U.S. 663 (1991).
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.