Tuesday, May 30, 2006
Decision Not to Discipline Employee Need Not Be Reported Under Brown Act—Lockyer
By a MetNews Staff Writer
Where the legislative body of a local agency ultimately rejects the proposed dismissal of a public employee after discussing the issue in a closed session meeting, it is not thereafter required to publicly report its decision and the vote or abstention of each member, Attorney General Bill Lockyer said in a published opinion.
“[T]he reporting requirement of section 54957.1, subdivision (a)(5),” wrote the attorney general, “does not apply to a legislative body’s closed-session rejection of a motion or other proposal to dismiss an employee.”
Issued last week in response to a request by State Sen. Wesley Chesbro, D-Arcata, the opinion clarified the parameters of the reporting requirement associated with closed sessions conducted pursuant to the “personnel exception” in the Ralph M Brown Act.
The Brown Act establishes the general rule that all meetings of a local agency’s legislative body must be open and public, and all persons must be permitted to attend them. Government Code Sec. 54957(b)(1), a provision of the act, creates an exception permitting closed sessions for meetings convened 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.”
But Sec. 54957.1(a)(5) adds that in situations where such a closed session meeting results in an “[a]ction taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee,” the legislative body must report the action to the public.
Lockyer concluded that where an “action taken” does not result in effecting some modification or change in employment status, the reporting requirement for personnel-related closed session meetings does not apply.
“Section 54957.1, subdivision (a)(5), imposes a reporting duty only when the legislative body has actually taken action ‘to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session.’ If none of these specified types of ‘actions’ is ‘taken’ during the closed session, there is no duty to report the body’s deliberations or the members’ votes or abstentions with respect thereto,” he wrote.
The attorney general explained that legislative intent underlying the personnel exception was clearly to protect employee privacy, and therefore the proper conclusion was to require disclosure under Gov. Code Sec. 54957.1(a)(5) only when the legislative body actually makes a modification or change in employment status.
Proposition 59, the constitutional amendment adopted in 2004 that requires a statute to be “narrowly construed if it limits the [people’s] right of access to information concerning the conduct of the people’s business,” does not change the result, Lockyer said.
The personnel exception was first enacted in 1975, he explained, and “plainly” qualifies under Proposition 59 as a pre-existing statutory exception to the right of access to meetings of public bodies.
The opinion, No. 05-701, was prepared for Lockyer by Deputy Attorney General Daniel G. Stone.
Copyright 2006, Metropolitan News Company