A&A: Board member shared confidential information after closed session

Q: I am an Associate Director at my charter school. I was recently informed by my Board that my contract will not be renewed for the next school year. This is an amicable separation and I am finishing out the school year. However, within a week of this decision, made and executed during a closed session, I learned from two different reliable sources that two Board members had shared this decision with at least three different staff members. What are my rights? What, if any, course of action can I take?

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A: As you may know, the Brown Act permits an agency to meet in a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.”  Gov’t Code § 54957(b).

The Brown Act prohibits disclosure of “confidential information” obtained at a closed session held pursuant to the Brown Act to “a person not entitled to receive it,” unless the legislative body authorizes disclosure:

“For purposes of this section, ‘confidential information’ means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter.” Gov’t Code § 54963(b).

Violation of this section may be addressed by the use of such remedies as are currently available by law, including, but not limited to:

(1) Injunctive relief to prevent the disclosure of confidential information prohibited by this section.

(2) Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section.

(3) Referral of a member of a legislative body who has willfully disclosed confidential information in violation of this section to the grandjury.Gov’t Code § 54963(c)(1-3).

Note, disciplinary action against an employee who willfully discloses confidential information “require[s] that the employee in question has either received training as to the requirements of this section or otherwise has been given notice of the requirements of this section.”  Gov’t Code § 54963(d).

I invite you to review Government Code section 54963.

Whether the board members here violated the Brown Act depends on the extent and type of the information revealed to staff members.

For example, if the board members simply related that your contract is not being renewed, then this may not amount to a violation of the Act.

Indeed, the legislative body is required make public this information at an open meeting—“[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(a)(5).

Therefore, there may have been no violation in the event this information was already made public.

On the other hand, if anything amounting to “confidential information” related to why your contract was not renewed was disclosed, then it may be the trustees violated the above provisions.  However, this would require an in-depth analysis as to whether this information could be categorized as “confidential” in the first place.

For more information check out FAC’s Brown Act Primer.

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.