A&A: Can Employment Records & Dismissal Be Presented in City Council Open Session?

Q: Recently a local City Counsel meeting was to be held as an open session to hear non-adopt arguments with regard to a proposed Administrative Law Judge’s (ALJ) decision to fully reinstate employment of a firefighter. My husband never received notice of the open session (hearing). Also, on the agenda it listed his full name and that at this open session there would not be any public comment allowed regarding what was being heard. Is this a violation of the Brown Act?

Secondly, along with the agenda that was posted they also posted to the public, online an additional 816 pages of documents that included transcripts from the ALJ’s hearing, closing arguments and rebuttals from both sides attorney’s, a large amount of employee records to include write up’s and responses to said write up’s, a final report from the psychologist summarizing test scores and outcomes of counseling, his license application for paramedic which contained our address and his social security number and actual drivers license as well as his Paramedic license and local EMS accreditation, none of which were redacted. Plus multiple additional documents and investigation transcripts and emails. Is any of this a violation of the CPRA? I would assume based on the 816 pages they posted with the agenda that there are numerous violations of GC 6254?

A: California’s open meeting law, also known as the Brown Act, is invoked if a “legislative body” is involved, and if a majority of the members of that particular body met and conferred about the public’s business.  The Brown Act requires that at least 72 hours before a regular meeting, the legislative body of the local agency post an agenda containing a “brief general description” of each item to be transacted or discussed at the meeting.  The notice must be posted in a location that is freely accessible to members of the public. Gov’t Code § 54954.2(a).  The Act also requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”  Gov’t Code § 54954.3(a).

Typically, where issues of employment are involved, legislative bodies opt to deliberate in closed session as allowed under Government Code Section 54957(b).  Per that statute, the legislative body may hold a closed session during a regular or special meeting “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.”  Gov’t Code § 54957(b).  Under the Act, “employee” is defined to 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.”  Gov’t Code § 54957 (b)(4).

The scope of a closed session is limited to discussions of specific employees.  The exception does not apply to general discussions concerning employment classifications or general personnel problems where no employee or employees are specifically identified.  Santa Clara Federation of Teachers v. Governing Board, 116 Cal. App. 3d 831, 846 (1981).

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).

However, it sounds like in your husband’s situation, the council determined it would put this item on its open session agenda.  Given this, the Brown Act does not contain any guidance with respect to what notice your husband should have been given with respect to this item.  The only Brown Act violation I see is that the public was not given the opportunity before or during the item to comment on your husband’s item.

If you believe there was a violation of the Brown Act surrounding this meeting, the first step would be to write to the council demanding that it nullify its vote.  Gov’t Code § 54960.1(a).  If the council refuses to cure and correct its action, you could bring a lawsuit to nullify the vote, and if successful, you may be entitled to attorneys’ fees.  The details of this enforcement procedure are set out in § 54960.1(a) of the Government Code.  Note there are strict deadlines under the Government Code with respect to this particular procedure for seeking judicial action to nullify a vote.  Another mode of enforcement provided for in the Government Code is to seek a judicial determination that a particular act by the agency violated the Brown Act, but not seeking nullification of any particular vote taken by the body.  Gov’t Code § 54960.  If successful, this would result in a court order stating that the action at issue violated the Brown Act (and that the council should not do it again).  A third option would be to report the violations to your local district attorney, who also has standing to judicially enforce the Brown Act.  Unfortunately, whether the D.A. decides to enforce the Act is in the sole discretion of the D.A., but alerting the D.A. could possibly spur an investigation into the board that would subsequently result in the board abiding by the Brown Act’s rules.

Your second question is whether the materials placed online might have violated the Public Records Act.  The PRA governs the public’s access to records maintained by state and local agencies.  Although there are numerous exemptions the government may invoke with respect to requests for specific records, the Act does not contain prohibitions on the release of records.  In other words, local agencies can decide to release records to the public even if they are not required to release those records per some exemtpion.  Thus, I cannot imagine the agency here violated the PRA in posting these records online.

If your husband remains concerned about the procedures used by the city in connection with his dismissal, he may want to consult an employment attorney.

Bryan Cave Leighton Paisner 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.  No attorney-client relationship has been formed by way of this response.