School Board Voted In Secret to Pick New Superintendent

Answer

I am sorry to hear about the lack of transparency associated with the hiring of the superintendent. When it comes to personnel decisions, the Brown Act does permit for some discussions to be held behind closed doors, but these exceptions are to be construed narrowly. With respect to hiring decisions,Section 54957(b) permits a legislative body of a local agency to hold a closed sessions 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). 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, i.e., a current employee who is being evaluated, or a vacant position that is being filled, notice on the agenda along the lines of the following would be sufficient under the Brown Act:

PUBLIC EMPLOYEE EMPLOYMENT EVALUATION

Title: (Specify position title of employee being reviewed) or

PUBLIC EMPLOYEE APPOINTMENT Title: (Specify description of position to be filled)

The scope of a closed session is limited to discussions of specific employees.Thus, to the extent the board discussed the superintendent position more generally (i.e., was not discussing a specific candidate for the position), these discussions likely should be held in open session.

The Act also provides for “closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.”Gov’t Code § 54957.6(a). This statute goes on to require that “prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives.”Id.Such closed sessions“shall not include final action on the proposed compensation of one or more unrepresented employees.” Thus, as you can see, there are certain conditions that must be met before a legislative body discusses salary and benefits in closed session, and any final action must be taken in open session.

If you believe there was a violation of the Brown Act surrounding the hiring of the superintendent, the first step would be to write to the board demanding that it nullify its vote. Gov’t Code § 54960.1(a). If the board 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.

Another mode of enforcement provided for in the Government Code is to seek a judicial determination that a particular act by the agency violated the Brown Act, but not seeking nullification of any particular vote taken by the body. Gov’t Code § 54960. If successful, this would result in a court order stating that the action at issue violated the Brown Act (and that the council should not do it again).

A third option would be to report the violations to your local district attorney, who also has standing to judicially enforce the Brown Act. Unfortunately, whether the D.A. decides to enforce the Act is in the sole discretion of the D.A., but alerting the D.A. could possibly spur an investigation into the board that would subsequently result in the board abiding by the Brown Act’s rules.

The FAC provides a list of lawyers who practice in this area here.

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.