Question
Are contracted City Attorneys considered city employees? I’m asking because the city I cover has scheduled a closed-session meeting to review the job performance of its City Attorney. This comes at a time when a few council members want to replace the current attorney, who charges $130 per hour, with a full-time, in-house attorney that would cost more. If the City Attorney technically is not a city employee, I would protest the closed-session review.
Answer
The short answer to your question is yes.
As you are clearly aware, the Brown Act permits closed sessions “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’t Code § 54757(b)(1).
Government Code section 54957(b)(4) provides, in part, as follows: “For the purposes of this subdivision, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors.” It sounds like you have a private contractor serving as an officer of the City, i.e. a City Attorney.
Unfortunately, this is something that can be addressed in a closed session.
Note, however, that “[c]losed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.” So, to the extent that what is being discussed is compensation, they can’t talk about that in closed session.
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