Question
Our Board of Directors met in Executive, closed session to discuss amending our By-laws to reduce the number of directors. When I questioned the closed session, I was told that the Board of Directors were considered personnel and as so covered under the personnel matters exception in the Davis-Sterling Open Meeting Act.
I read a pamphlet from the California Attorney General’s office that was very clear that board members are not considered personnel under the Bagley-Keene Act. Does this definition of personnel also apply to Davis Sterling?
Answer
Some of the provisions of the Davis-Stirling Common Development Open Meeting Act, Cal. Civ. Code § 1363.05, track some of the provisions of the Brown Act. Section 1363.05(b) states that “executive sessions” may be held “to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 1367 or 1367.1.” However, from my brief review of that section and surrounding sections, including some research on judicial cases that might interpret these provisions, I was not able to find any guidance on the limits of holding an executive session pursuant to the Act.
Under the Brown Act, legislative bodies would not be able to consider a reduction of members of the body in closed session because the provision permitting a closed session to “consider the appointment, employment, evaluation of performance, or dismissal of a public employee” (the “personnel” exemption) actually excludes members of the legislative body from the definition of “employees.” See Gov’t Code § 54957. However, again, because the Davis-Stilring Common Development Open Meeting Act does not contain similar provisions, it is unclear whether amending the by-laws to reduce the number of directors in the common interest development you reference falls into the “personnel matters” category.
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