Q: Our City Council sets the City Manager’s goals in open session. The goals are public. The evaluation of the City Manager in meeting goals in done in closed session.
In contrast, the School Board sets goals for the Superintendent’s in closed session. Recently, the new superintendent made her goals available on the District web site. The Board President thanked her in a public column for choosing to be transparent since the goals are an integral part of her personnel file and it is her choice.
Should the School Board be setting current goals in open session, similar to the City Council? Do the open meeting laws let the superintendent decided whether or not to make her goals public or should they always be public?
A: California’s open meeting law, known as the Brown Act, provides for closed sessions for certain personnel decisions:
(1) … [N]othing 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. … 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.
Gov’t Code § 54957(b)
“Evaluation of performance” is not restricted to formal, periodic review of the employee’s job performance, but may also include consideration of the criteria for such evaluation, consideration of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of the legislative body’s discretion in evaluating a particular employee. Duval v. Board of Trustees of Coalinga-Huron Joint Unified School Dist., 93 Cal. App. 4th 902, 909 (2001)
(“[W]e conclude ‘evaluation’ may properly include consideration of the criteria for such evaluation, consider of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of [the public agency’s] discretion in evaluating a particular employee. … [T]hese preliminary considerations are an integral part of the actual evaluation of the superintendent and are properly a part of defendant’s ‘consider[ation] [of] the … evaluation of performance’ of the superintendent.”).
The Duval case specifically addressed a meeting in which goals that were established by the school district for its superintendent, and the court determined that the establishment of “goals for future improvement” was part and parcel of “the primary objectives of a formal performance evaluation,” and as such, the plaintiffs had failed to allege any Brown Act violation. Id. at 910.
It sounds like, from the facts you describe, the goals discussed at the closed meeting were particular to the current superintendent, as opposed to being more generic goals that could apply to the position in general.
If the latter were true, there might be a colorable argument that the closed session was improper, since they were not in the process of evaluating (and setting goals for) a particular district employee, but rather were setting broader district policies with respect to the office of superintendent.
Of course, there are still certain notice requirements related to even those items that are discussed in closed session, as well as reporting requirements.
The Brown Act requires that agenda include “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.” Gov’t Code § 54954.2(a).
The Duval court concluded that notice on the agenda that the superintendent would be evaluated, in general, was sufficient, even though the board discussed the evaluation criteria at one particular meeting, as opposed to specifically reviewing the superintendent. Id. at 910. “[I]t is far too narrow an interpretation of the statutory criteria to hold that ‘[taking] action to find the evaluation satisfactory’ is an action apart from the evaluation itself, thereby requiring separate notice on the defendant’s agenda.”
The Brown Act requires bodies to “publicly report any action taken in closed session and the vote or abstention on that action of every member present,” specifying particular procedures based on the justification for the closed session. Gov’t Code § 54957.1(a). For closed sessions authorized for personnel decisions, the Brown Act provides that “[a]ction taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.” Gov’t Code § 54957.1 (emphasis added).
Finally, it is worth noting that even though the Duval case suggests that the closed meeting you describe would not violate the Brown Act, written records of the goals may qualify as public records that are required to be disclosed under the Public Records Act (contrary to what the board president suggests, i.e., the goals are exempt from disclosure because they are part of a personnel file). Gov’t Code § 6254(c) exempts personnel files if their disclosure would constitute an “unwarranted invasion of privacy,” and is routinely invoked when a public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial. Gov’t Code section 6254(c) (agencies can withhold “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”). However, this exemption was developed to protect intimate details of personal and family life, not official business judgments and relationships. Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004). The California Court of Appeal has held that “information as to the education, training, experience, awards, previous positions and publications of [the employee] … is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794 (1982); see also Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (1984) (letters contained in personnel filing appointing and then rescinding appointment of public employee were public records required to be disclosed under Public Records Act since they contained no personal information, and manifested the employee’s contract). Of course, since the superintendent herself posted the goals on the website, it is probably unnecessary in this instance to make an official request for those records, but this information may be helpful in connection with any future goals that are set by the school board in a closed meeting, and then withheld from public view because they are considered part of the individual’s “personnel file.”
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.