Q: The School Board announced last night that they had narrowed the field of candidates for superintendent to one finalist when reporting out of closed session. But no vote was taken. The board president emailed me today that they had reached consensus. How can they do that without a vote being taken? Is that legal?
A: The Brown Act contains a few narrow exceptions to its general requirement that meetings be open to the public. One of these exceptions is found in Government Code § 54957(b), which authorizes public agencies to hold a meeting in closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.” This exception, while narrow, likely applies here because the meeting involves the selection of a new superintendent.
Whether an official vote is necessary to select a new superintendent is beyond the scope of the Brown Act. You may want to review the school board’s bylaws or operating procedures to see what is required in this regard. But you should be able to learn more about the board’s selection process here in any event.
Under the Brown Act, in addition to posting an agenda of items to be discussed in a closed meeting, an agency must “publicly report any action taken in closed session and the vote or abstention on that action of every member present.” Gov’t Code § 54957.1(a).
Thus, if the board selected a candidate without a vote, this provision would seem to require that it report any other actions it took which led to the selection of the new superintendent.
You might consider writing the school board to request this information. In addition, consider reviewing the posted agenda to see what information it provides, as it would be improper under the Brown Act for the school board to discuss any items not specifically noticed for discussion on the agenda. See Govt. Code §§ 54957.7, 54954.2(a), (b).
Bryan Cave LLP is general counsel for the First Amendment Coalition (FAC) 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.