Denied right to have job termination discussed in open meeting

Answer

There are situations where legislative bodies may hold meetings that are closed to the public, including meetings to consider the appointment or employment of a public employee. See Cal. Gov. Code §54957(b)(1).

Specifically, an agency may hold a closed session to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.”Gov. Code §54957(b)(1).

However, “[a]s a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right 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. Code §54957(b)(2) (emphasis added).

Courts have drawn a distinction “between meetings to hear complaints and charges against an employee and meetings to consider whether those complaints and charges justify dismissal or other disciplinary action.”Morrison v. Housing Authority of the City of Los Angeles Bd. of Comm., 107 Cal. App. 4th 860, 872 (2003).

Courts have held that under 54957(b)(2):
notice is not required “when an agency proposes to ‘consider’ in closed session whether charges or complaints against an employee justify dismissal. If, however, the agency proposes to ‘hear’ the charges or complaints in closed session it must give the employee notice of the right to demand an open session.”Id.
In the situation you describe, whether or not the district was in compliance with the Brown Act with respect to its closed session would depend on whether the meeting was called to consider whether the charges justify dismissal, or whether the agency was “hearing” the charges or complaints in that session.

This distinction is blurry, but one fact that might inform whether or not the closed session required written notice to you, and the opportunity for you to request an open meeting, is whether the district board ever heard the charges/complaints in a meeting (open or closed), which might indicate that the board was only considering whether to dismiss you in light of those charges at this particular meeting.

(Of course, if the board heard the charges at a previous closed session, and you were not given notice of this notice of the complaint, then the Brown Act may have been violated at that previous meeting, and the action taken by the board at the subsequent meeting might be null and void as a result.)

If you feel that the Brown Act was violated, you may want to send the board a letter demanding that it cure or correct the action taken in violation of the Brown Act.

“The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days of the action. Gov. Code §54960.1(c).

It is not necessary that this demand come from an attorney; any individual may make such a demand.If the agency does not cure or correct within the prescribed time limitations, the next step would be to seek a judicial determination that the board’s actions are null and void.Gov’t Code § 54960.1(a).

A citizen who prevails in an action to enforce the Brown Act may be entitled to recover attorneys’ fees.The details of this enforcement procedure are set out in Section 54960.1 of the Government Code. (see http://firstamendmentcoalition.org/brown-act/).

Again, it is not necessary that an attorney file any court action, although if you reach this stage with the school board, you may want to seek assistance in order to ensure that the proper procedure is followed.

You may be able to find an attorney to assist you through the First Amendment Coalition’s Lawyer’s Assistance Request Form at http://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.

Holme Roberts & Owen 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.