Does A Closed Session Employment Termination Decision Violate the Brown Act?

Answer

Where issues of employment are involved, legislative bodies often opt to deliberate in closed session as allowed under Government Code § 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)(1).

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).

If the subject matter does fall into one of the categories above, the public must still be given notice on the agenda.Under the safe harbor descriptions provided for in Government Code § 54954.5, if the matter relates to a specific public employee – in your case, a current employee who is being dismissed – notice on the agenda along the lines of the following would be sufficient under the Brown Act:

PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE (No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes potential reduction of compensation.) Gov’t Code § 54954.5(e).

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).

In your situation, if there was a specific complaint or charge brought against you by “another person or employee” that led to the council’s actions, and that the council discussed behind closed doors, it seems you should have been made aware of these charges and given the opportunity to have them heard in open session, as provided for under Government Code § 54957(b)(2).

However, if there weren’t any specific complaints or charges brought against you by another person or employee, then the city council probably was not obligated to provide notice to you. That said, even if you weren’t required to be personally notified of the closed session, the agenda should have specifically stated that the closed session was being held to consider a public employee’s dismissal, as required by Government Code § 54954.5(e).

It sounds like the agenda only indicated that the council was evaluating your employment, which would have been sufficient had this been true – i.e., if the council was indeed only discussing a performance evaluation, as opposed to discussing dismissal or some other disciplinary action.

However, from what you describe, the council went much further than merely evaluating you as an employee, and instead discussed dismissal, and thus the agenda item was misleading and likely violated the requirements of the Brown Act. Note, however, that where an evaluation is concerned, the Brown Act’s safe harbor provides that the position of the employee being reviewed is required on the agenda, whereas for discipline/dismissal/release, this information is not required.

If you believe the council may have discussed specific charges brought against you in the meeting in violation of Government Code § 54957(b)(2), “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.”

Likewise, if the council was discussing your dismissal, but erred in properly labeling this item on the agenda, you might be able to get the vote nullified. In either case, the first step would be to write to the council demanding nullification based on your understanding of what took place behind closed doors, and how the Brown Act may have been violated.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.

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.