A&A: Brown Act Violation Concerns Over Closed Session Protocols for Employee Evaluations

Q: At a special meeting of a California legislative body, an employee was suddenly put on paid administrative leave. The closed session agenda item was added to a special meeting just over 24 hours before that meeting and stated: Public Employee Performance Evaluation/Discipline/dismissal/release (Government code section 54954.5 and 54947(b)) title: [employee title].

The employee was told verbally the day before that the item was added but he did not get written notice and was not notified of an option for an open session. After the meeting, the Board Chair announced that he was put on leave and they would hire an outside consultant to look into financial and operational concerns.

Following that announcement, there were five other regular and special board meetings conducted that addressed this same issue in closed session without the employee under consideration being notified beforehand.

Finally, at a regular board meeting there was a closed session agenda item that stated: Public employee performance evaluation, [employee title] (pursuant to Government Code Section 54957).

Then there was a special meeting called with the agenda posted about 26 hours prior to the meeting. The closed session item stated: Public Employee Performance Evaluation (Government Code Section 54957(b)) title: [employee title].

He did not get any notification of this meeting. The closed session lasted about one hour. The Board Chair announced that they voted 5-0 to terminate the employment of the CEO without cause and that the District was going in a “new direction.”

No “new direction” has been discussed at any Board meeting. The now former employee has still not been formally notified of his termination even though it was announced to the public.

I find this lack of transparency very alarming. Several people have sent requests to the Grand Jury for investigation. Is there anything else that we can do or should do. I suspect Brown Act violations in the way that the agenda items were listed and the lack of notice to the employee being evaluated.

A: The Ralph M. Brown Act, Cal. Gov. Code § 54950 et seq., generally requires that local legislative bodies transact the public’s business at noticed, open, and public meetings.

One of the limited exceptions to the open meetings requirements allows a local legislative body to hold a closed session to discuss “the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.” § 54957(b)(1). Note that notice is only required to the employee under discussion if the legislative body is considering “specific complaints or charges” against that employee, in which case they must be given notice of their right to have the charges heard in open session. § 54957(b)(2). Therefore, if the board was not considering a specific complaint or charge against the CEO, and was instead engaging in an ordinary performance evaluation or similar process, then notice was not required. If, however, specific complaints or charges against the CEO were discussed at these closed sessions, then notice should have been given.

The Brown Act also requires that agendas be posted at least 72 hours prior to a regular meeting, with a brief general description of each item of business to be transacted, including items to be discussed in closed session. § 54954.2(a)(1). Legislative bodies can hold special meetings with 24 hours’ advance notice, but only for emergency situations. § 54956. However, “emergency situations” are defined as situations such as a “work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both,” or a “crippling disaster, mass destruction, terrorist act, or threatened terrorist activity” posing an imminent danger. § 54956.5. On the facts you have provided, it is not clear that an “emergency situation” as defined in the Brown Act existed at the time the board called its special meetings.

The Brown Act enables the district attorney or “any interested person” to bring an action to prevent violations or even nullify previous actions that were taken improperly. Cal. Gov. Code § 54960. As such, you may wish to first bring your concerns to the district attorney’s attention. The Brown Act also has provisions that enable private citizens to enforce the Act, via certain non-judicial settlement procedures and/or lawsuits. More information about these procedures can be found at the First Amendment Coalition’s website here (see tab VII, “Enforcement”).

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.