HomeMy WebLinkAboutBROWN ACT 11-03-83DATE:
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11/3/83
HONORABLE MAYOR AND CITY COUNCIL
JAMES G. ROURKE, CITY ATTORNEY
BROWN ACT: SECRET MEETING LAW
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Every member of a public board, council, or commission must be
cognizant of the limitations of the Brown Act, Government Code
Sections 54950 et seq. Violation of these sections can be
enjoined and under certain circumstances may be a crime. Convic-
tion of a crime can result in forfeiture of office and prohibi-
tion against holding any office in the future. Accordingly, no
member should knowingly violate the law and in any situation
regarding doubt as to legal propriety, members should first
consult with the City Attorney.
The Brown Act requires that all meetings of a city council,
planning commission and other permanent city boards and commis-
sions must be held in public, except where otherwise permitted
pursuant to any of the exceptions provided in the Act or by
judicial decision. The exceptions which permit closed sessions
include meetings a) with law enforcement personnel on matters
posing a threat to the security of public buildings threats to
the public's right of access to public buildings or public facil-
ities, or affecting national security, b) to consider the
appointment, employment, evaluation of performance or dismissal
of a public officer or employee or to hear complaints or charges
against an officer or employee, unless the officer or employee
requests a public hearing, c) with designated representatives
prior to and during consultations and discussions with represent-
atives of employee organizations regarding the salaries, salary
schedules, or compensation paid in the form of fringe benefits of
employees in order to review positions and instruct designated
representatives and d) to meet with legal counsel to discuss
litigation (including condemnation of property) pending, proposed
or anticipated where a public discussion of such matters would
redound to the benefit of the City's adversary and to the detri-
ment of the public.
The Court of Appeals in the case of San Diego Union v. City Coun-
cil of the City of San Diego has recently handed down an opinion
which sets forth a different interpretation of the "personnel
exemption" (b above). The "personnel exemption of Government
Code Section 54957 reads as follows:
Nothing contained in this chapter shall be
construed to prevent the legislative body of
a local agency from holding closed sessions.
during a regular or special meeting to
consider the appointment, employment,
evaluation of performance, or dismissal of a
public employee or to hear complaints or
charges brought against such employee by
another person or employee unless such
employee requests a pub~id h~aring.
The Court held that the "personnel exemption" permits discussion
by a City Council in closed session of (i) the performance of an
employee and (ii) whether such performance deserves an increase
in salary for the employee. The Court also held that other
matters such as the specific amount of salary, availability of
funds, and relative compensation of other employees could not be
discussed in closed session. Presumably the Court would consider
fringe benefits in the same category as salary.
It must be remembered that this case only applies to the "person-
nel exemption" and that there is another and separate exemption
for discussions by the City Council with its representatives
during the meet and confer process (the "meet and confer
exemption", c above).
In summary, we would advise you as follows:
1. The City Council may hold closed sessions with its
designated representatives prior to and during consultations and
discussions with representatives of employee organizations
regarding salaries, salary schedules, and compensation paid in
the form of fringe benefits of employees in order to review its
position and to instruct its designated representatives.
2. The City Council may hold closed sessions during a
regular or special meeting to consider the appointment, employ-
ment, evaluation of performance or dismissal of any employee or
to hear complaints or charges brought against such employee.
3. Under the limitations of the San Diego union case,
there may be discussions in closed sessions of whether salaries
should be changed for individual employees as an incidental part
of the evaluation of performance of those employees, however,
specific salary discussions may not be held in closed session.
So long as the San Diego Union case is the definitive law on this
point, the City Council should not have specific discussions nor
fix salaries of non-represented employees in closed sessions.
Considering the rather difficult restrictions this creates, the
Council could consider a process of having a committee composed
of less than a majority of the City Council review recommenda-
tions of the city Manager and any other input and make its recom-
mendations to the City Council for its adoption, rejection or
modification in public session.
If there are any specific questions from time to time,
course be ready to respond.
JGR:se:R:ll/3/83(16)
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