A&A: Can I use information revealed in closed session, or is it privileged?

Q: I have been an adjunct prof at a local Junior College for 20 years. When a student  was prevented from passing out constitutions on Constitution Day, I publicly criticized the Administration. They retaliated by giving me a terrible teaching evaluation and by forbidding me to use my own writings in my classes.

In response, I filed two whistle-blower complaints against the Community College District and several of its employees. Immediately, the District unlawfully retaliated by threatening me with disciplinary action, saying that two employees had filed negative workplace complaints arising from my series of emails listing my complaint.

The District repeatedly refused to say who complained against me, what policy I had violated, or what I had done to violate the unnamed policy. The most they would say was that it was in the area of a discrimination/harassment complaint. I know I was not guilty of such, as I only accused people of violating state and federal laws and District policies, and did not harass or make slurs against anyone on the basis of their gender, race, ethnicity, etc.

After over two months, they said the charges were no longer pending, but refused to let me have a copy or summary of the investigative report as required by AP 3435 (which they had not adopted).

I would argue that pursuing those faux complaints against me constituted illegal retaliation under CA ed code, as attempts to intimidate and harass me via malicious prosecution (pursing charges without probable cause). This District has a habit of using vague discrimination/ harassment complaints to chill the speech of its critics. They did the same to three members of the Academic Senate, and even used it against a Trustee who had made the same criticisms I did.

After two months, they said they determined that the charge against the Trustee was not a discrimination complaint, but was only a request that she recuse herself if my whistle-blowing case came before the Board.

All the Trustees recently were given (in closed session) a copy of the billings record for the main attorney. That record reveals who filed the faux complaints against me and the Trustee, and it also reveals that the Chancellor lied to me and violated the District Policy on whistle blowing when she she said she had no part in the investigative process because she was one of the accused. She had 39 teleconferences with the District’s attorney regarding my complaint, while the Chair of the Board (who according to Policy was in charge of an impartial investigation) had only a couple contacts with the attorneys.

My question is, can I use this information that was revealed in closed session, or is it privileged?  Also, can I charge the Chief Atty as a co-conspirator and architect of the retaliation effort against me? She even refused me my Weingarten rights. It seems to me that this could be an important First Amendment case — it could put a stop to Colleges using vague and unspecified discrimination charges to intimidate and harass critics. I would appreciate some help here.

A: I am sorry to hear about your situation.  Any time a public institution retaliates against an individual for exercising his or her constitutional rights is cause to be concerned.

It sounds like in the situation you describe, you want to know whether you can reveal the contents of billing records – including the name of the individual who complained about you to the administration – that were disclosed to the trustees during closed session.

As a preliminary matter, you should determine if the Board properly met in closed session.  The Act contains a few narrow exceptions to its requirement that all legislative deliberations occur in open session, one of which is “to consider the…performance, discipline, or dismissal of a public employee.”  Gov’t Code § 54957(b).

If the meeting in question was to discuss disciplinary action, the Board may have properly met in closed session, but was required to post an agenda containing a brief general description of the items to be discussed at the meeting.  Gov’t Code § 54954.2(a)(1).

Where the closed session is being held to hear or consider “specific complaints or charges brought against an employee by another person or employee,” the employee must be given the opportunity 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.”  Gov’t Code § 54957(b)(2).  If the meeting was held to consider the specific complaints or charges brought against you, you should have be given the opportunity to have them heard in open session, and may bring an action to “cure and correct.”  Here is a sample “cure and correct” letter to use as a template.

In any event, you may want to request the information you seek by way of a public records request.  Under the California Public Records Act (“PRA”), public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code section 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

Unfortunately, attorney billing records may be exempt from disclosure–the Second District recently held that, “[attorney] invoices are confidential communications within the meaning of Evidence Code section 952, they are exempt from disclosure under Government Code section 6254, subdivision (k).”  Cnty. of Los Angeles Bd. of Supervisors v. Superior Court of Los Angeles Cnty., 235 Cal. App. 4th 1154, 1160 (2015).

However, the Court concluded that, “while the invoices themselves are privileged, information that is not otherwise privileged does not become so merely by being transmitted to, or in this case from, an attorney…Therefore, to the extent the information the ACLU seeks is available in a nonprivileged source, the fact the invoices are privileged does not necessarily protect the information itself.”  Id. at 1177.

Therefore, you may request information regarding the complaints and calls referenced in the records.I could not tell if you already have the records—if you do, whomever distributed them to you (provided it was not the attorney in question) may have already waived the privilege.

Privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication.”  Evid. Code §912(a).  “What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege.”  Transamerica Title Ins. Co. v. Superior Court, 188 Cal. App. 3d 1047, 1052 (1987).  “Where the disclosure sought is so related to the disclosure already made that the [holder] could not reasonably retain a privacy interest in preventing it, then the purpose of the privilege no longer exists, and it may be said that the privilege has been waived.”  Jones v. Superior Court, 119 Cal. App. 3d 534, 547-48 (1981).

I recommend you make a public records request for the information you seek – per Cnty. of Los Angeles Bd. of Supervisors, although the billing records may themselves be privileged, some of the information contained in them is subject to disclosure.  The PRA requires the Board assist you in making a focused and effective request that reasonably describes identifiable records.  Gov’t Code § 6253.1.

You’ll find more information about the Public Records Act, including a sample request letter, under the Public Records tab in the navigation bar.

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.