Labor negotiations and the Brown Act

Answer

Your inquiry raises several issues under the Brown Act.  First, any discussion or action regarding the amount of a public employee’s compensation must be open to the public.  Duval v. Bd. of Trustees., 93 Cal. App. 4th 902, 908 (2001); San Diego Union v. City Council, 146 Cal. App. 3d 947, 951 (1983).  As you indicate, there is an exception to the open-meeting requirements of the Brown Act for certain employee evaluations.  This “personnel exception” permits closed sessions to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.”  Government Code 54957(b)(1).   However, section 54957(b)(4) further provides: “Closed sessions . . . shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.”  Thus, while an employee’s job performance can be discussed in closed session, including the initial determination that the employee should receive a raise or a bonus, the amount of any adjustment in compensation must be discussed and determined in an open meeting.  San Diego Union v. City Council, 146 Cal. App. 3d 947 (1983).

Second, a closed session to evaluate a school principal’s job performance is probably improper in the first instance.  The California Attorney General has expressed the opinion that the superintendent, and not the board, is authorized to appoint, discipline, and establish the salaries of “certificated” employees such as teachers and school principals. Where the superintendent, rather than the school board, is the employer, the board cannot hold closed sessions concerning a certificated employee’s appointment, employment, evaluation of performance, discipline, or dismissal, (even though closed sessions to discuss such matters may ordinarily permitted by the personnel exception to the Brown Act).  This is because the superintendent, and not the board, is the relevant authority in charge of such matters, and therefore the board has no “substantial reason” for holding a closed session to consider them.  See California Attorney General Opinion No. 01-505, 85 Ops Cal Atty Gen 77 (April 19, 2002).

Finally, even in situations where the personnel exception to the Brown Act is properly invoked, a school board would be required to report certain information to the public in open session. Gov Code 54957.1(a)(5) provides that a legislative body must report “any action taken in closed session and the vote or abstention on that action of every member present. . . . Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session . . . shall be reported at the public meeting during which the closed session is held.”