Filing a Vacancy by Closed Session Appointment

Answer

The Brown Act requires that legislative bodies post an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session.  Cal. Gov’t Code § 54954.2(a).  A “brief general description,” as the term indicates, can be brief and general, usually satisfied within 20 words.  However, it must be a description, not a code phrase that is unintelligible to the public.  The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body.  The agenda description need not educate the reader about all aspects of an item, as it would often be impossible in any “brief” or “general” way.  The law assumes that people with a particular interest in a given subject matter will take steps to find out more about the agenda item and/or attend the meeting.  But it does mean, among other things, that when it is possible to use a few words to alert the public to an obviously consequential or controversial proposal, a failure to do just that may violate the law if its effect is to leave those most likely to care unaware and with lowered guard.  In the situation you describe, while it might have been helpful to the public for the school board to have posted the names of the applicants, failing to do is likely not a violation of the Brown Act.  If the school board posted a description sufficient to give notice that a vacancy is to be filled, it arguably provided enough information regarding the general nature of the item for consideration.

With respect to your second question, California’s Public Records Act (PRA) governs the public’s access to government records.  The Brown Act incorporates the mandates of the PRA through Government Code section 54957.5.  The PRA guarantees the public’s right to inspect and obtain copies of documents collected or maintained by state of local agencies.  The presumption is that such records are open, and that agencies can withhold them only if doing so is permitted by one of the exemptions set forth in the PRA.  The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days.  Gov’t Code § 6253.  If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek.  Gov’t Code § 6255.  It may be that the agency has withheld those applications under the privacy exemption of the PRA.  Courts have not been entirely consistent in determining what constitutes an “unwarranted invasion of personal privacy,” which is the standard required in order to justify withholding records under the privacy exemption.  Govt. Code Section 6254(c).  One court held that the kind of information that would be included in a resume, curriculum vitae or job application to demonstrate a person’s fitness, in terms of education, training or work experience, for a government job is not a matter of privacy.  Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788 (1982).  The Eskaton court reasoned that “information as to the education, training, experience, awards, previous positions and publications of the (employee) . . . is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.”  However, the rule with respect to resume-type of information applies ONLY to information about actual employees.  It does not require the disclosure of government job applications, especially if the applicants have asked for, or applied upon assurances of, the confidential treatment normally accorded such processes.  Thus, the school board appears to be within its rights to withhold job applications for those applicants who were not appointed, but it would be obligated to disclose resume-type of information with respect to the board member that was appointed.