Closed Session Agenda on Worker Evaluation Covers Contract Renewal

Friday, November 9, 2001

Page 3

Closed Session Agenda on Worker Evaluation Covers Contract Renewal—C.A.

By a MetNews Staff Writer

The Fifth District Court of Appeal yesterday gave some leeway to local governments conducting employee evaluations in executive session, holding that a school board could renew the superintendent’s contract behind closed doors under an agenda item that specified a performance evaluation.

The trustees of the Coalinga-Huron Unified School District in Fresno County did not violate the Ralph M. Brown open meeting law when they talked about what kind of form to use to evaluate Superintendent Patricia Lewis or when at a later meeting they found the evaluation satisfactory, triggering the contract renewal provisions, the Fifth District said.

The actions came in closed session under agenda items that specified Lewis’ annual employment evaluation.

It was not the first time the school board had been sued on Brown Act grounds over closed session actions taken for Lewis. In 1998, as part of a settlement, the trustees admitted they had violated the Brown Act when they discussed Lewis’ appointment to the permanent position in closed session under an agenda item that specified the performance evaluation of Lewis as interim superintendent.

The same plaintiffs who sued the school board in that case sued the next year and this time asked the court for a declaration that the board violated the Brown Act in the past and for an injunction against future violations. A Fresno Superior Court judge concluded that the complaint sought relief only for past actions.

The Fifth District, in an opinion by Justice Steven M. Vartabedian, disagreed, saying there was in fact sufficient evidence to show that the school board engaged in the practices the plaintiffs complained about and set a pattern they were likely to follow in the future.

But although the school board previously admitted to Brown Act violations, Vartabedian said, the trustees’ actions actually had been quite legal under the Brown Act.

“While not providing any extensive analysis or discussion of the matter, plaintiffs impliedly construe ‘evaluation of performance’ and ‘public employee evaluation’ [exceptions stated in the Brown Act] in a very narrow sense of a formal, periodic review of the employee’s job performance,” Vartabedian said.

“We disagree that ‘evaluation of performance’ is as narrow as plaintiffs suggest,” he said.

The phrase takes in consideration of the process for conducting the evaluation and other preliminary matters, especially where as here no collective bargaining agreement existed that already set forth evaluation criteria, the justice said.

“Similarly, it is far too narrow an interpretation of the statutory criteria to hold that ‘[taking] action to find the evaluation satisfactory’ is an action apart from the evaluation itself, thereby requiring separate notice on defendant’s agenda,” he said.

The case is Duval v. Board of Trustees, F035238.