A&A: Does the Brown Act allow closed session negotiations for all public school contracts?

Q: Does the Brown Act allow a publicly elected school board to hold closed session discussion under Government Code 54957 (Public Employee Appointment/Employment) and 54957.6 (Labor Negotiations) regarding the appointment and pay structure of a Director of Curriculum to the position of Assistant Superintendent of Educational Services.

Both positions are administrative positions that report directly to the Superintendent of the District and do not report to, or have direct supervision by the board. The pay is set like any other administrative position and is not set up under a contract with the board.

In an Attorney General of California letter (14-302, Sept 18 2015) it states: “… we considered whether a county board of education could hold closed sessions to discuss the employment and compensation of employees of the county superintendent of schools. The dispositive issue was whether the employees of the superintendent’s office should also be deemed the board’s employees. We decided that they should not, reasoning that the decision to employ them “does not require the board’s approval or consideration.” Rather, “the superintendent, and not the board, is authorized to appoint, discipline, and establish the salaries of certificated and classified employees.”

In another opinion that is related (01-505, April 19, 2002) the Attorney General stated: “While the board has an interest in the ultimate results of these labor negotiations, section 54957.6 is to be construed narrowly in favor of the Act’s general requirement of holding open and public meetings.”

The follow up question is whether there is any weight to an Attorney General’s opinion. I have contacted our local District Attorney and they barely will respond to my letters and phone calls. I also might add that the Civil Grand Jury released a report citing two instances of Brown Act violations just one week before this occurrence, including one which dealt with this exact same government code.

A: I reviewed the opinions of the Attorney General you cited, and agree that 85 Cal. Op. Att’y Gen. 77 (2002), determining a school board may not meet in closed session to discuss employees of the superintendent, appears to speak to your situation.

 “Does a board possess the power to appoint, employ, evaluate the performance of, discipline, or dismiss the certificated or classified employees of the superintendent?…A decision of a superintendent to employ persons in positions requiring certification qualifications does not require consideration by, or the approval of, the board. Likewise, a superintendent’s decision to employ classified employees does not require the board’s approval or consideration. The purposes of section 54957 would be ill served by allowing a board to meet in closed session to consider the superintendent’s appointment, employment, evaluation of performance, discipline, or dismissal of certificated and classified school employees.”  85 Cal. Op. Att’y Gen. 77 at *3 (2002)(citations omitted).

Moreover, with respect to the Labor Negotiations exception, “we conclude that a board may not meet in closed session under the labor negotiations exception of the Act to consider the salaries or compensation paid in the form of fringe benefits to certificated or classified employees of the superintendent.” Id. at *4.

Unfortunately, no court cases cite to this opinion, and in response to your follow up question, the Attorney General’s opinions are advisory, and not legally binding on courts, agencies, or individuals.

However, “[o]pinions of the Attorney General, while not binding, are entitled to great weight. [Citations.] In the absence of controlling authority, these opinions are persuasive ‘since the legislature is presumed to be cognizant of that construction of the statute.’ [Citation.]”  Napa Valley Educators’ Association v. Napa Valley Unified School Disrict.,  194 Cal. App. 3rd 243, 251 (1987).

I am sorry to hear the DA has been unresponsive to your communications, but there are a number of ways to enforce the Brown Act.  If an individual believes a Board is violating the Brown Act, he or she may bring essentially three types of legal suits: (1) a suit over a government entity’s alleged violation of the Act based on the that entity’s past violation of the Brown Act; (2) a suit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and (3) a suit to void an action taken by a government entity in alleged violation of the Brown Act.

Which respect to (1) – challenging past actions to stop their recurrence, which was added to the Brown Act in 2012 – persons alleging a past violation of the Brown Act, and seeking to bar further violations – but NOT  to invalidate a specific government decision or action – must first attempt to resolve the matter, short of litigation, though an elaborate settlement procedure set forth in Government Code section 54960.2.  The deadlines for filing a cease and desist letter with the government entity, as well as the government’s obligations in responding to such a complaint, are set forth in this code section, which can be accessed on the California Legislature’s website here.

With respect to (2) – barring an ongoing or future action, Government Code 54960(a) provides, “any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter . . . or to determine the applicability of this chapter to ongoing actions or threatened future actions. . . of the legislative body.”  Because, practically speaking, lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Government Code section 54960.2, discussed above.

With respect to (3) – suits to void a specific past action – Government Code 54960.1 provides the mechanism for bringing such a challenge, which includes a demand to the agency that it “cure and correct” the violation before filing a lawsuit.  “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 of the action, or 30 days if the action was taken in open session.  Gov’t Code § 54960.1.

If you choose to pursue any enforcement method, you should tailor it based on your ultimate goal (i.e., to prevent future violations of the Brown Act, or invalidate some action taken in that closed session).  In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court.  Id. at § 54060.5.

You can find more information regarding the Brown Act here: http://ift.tt/1Lu3PZr

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 unless separately retained.