Labor & Employment Practitioner’s Guide to Brown Act Obstacles - PowerPoint Presentation

Labor & Employment Practitioner’s Guide to Brown Act Obstacles Teresa Stricker & Jon HoltzmanNovember 20, 2019CALPELRA November 20, 2019

Learning Goals UnderstandingWhat may be discussed in closed sessions Specific closed session requirements Common pitfalls to avoid Special Brown Act challenges with subcommittees 2

Agenda Brown Act Basics: A RefresherClosed Session: Exceptions, Agenda, & Reporting Compensation Issues Subcommittees Other Labor & Employment Tips 3

Purpose of the Brown Act To promote transparency and public participation in local government decision making All meetings of the legislative body of a local agency shall be open and public , and all persons shall be permitted to attend any meeting of the legislative body of a local agency, unless an exception applies under the Ralph M. Brown Act. (Cal. Gov. Code, § 54953) 4

Brown Act Basics Generally, all meetings of a legislative body must be open and publicApplies to almost all types of local government bodies, elected or appointed, decision-making or advisory Sets the floor for public meeting transparency Public right to participate though public comment Agenda posting requirements prior to meeting (content and timing) Strict limits on discussing matters not on the agenda 5

Important Definitions What is a meeting?A meeting occurs when there is a gathering of a majority of the members of a legislative body to discuss or take action on any matter within the jurisdiction of the body. What is a legislative body?A governing board, a commission, standing committee, or certain types of non-profit organization boards 6

When Are We “Meeting”? Meetings may be: formal or informal, planned or unplanned involve only discussions or actions, or both advisory in nature or involve an exercise of power Meetings may occur through telephone conferences, electronic communications, or in-person contacts or conversationsIncludes: retreats, site tours, dinners, and even training sessions 7

When Are We “Meeting”? (II) Key question: Was a quorum of a legislative body involved in communications about matters within its subject matter jurisdiction? 8

Unlawful Meetings Examples“Pre-meetings” “Post-meetings” Collective briefings “Seriatim” meetings 9

Beware of Seriatim Meetings… A “seriatim meeting” occurs when a quorum of a legislative body exchanges ideas through people or technology acting as intermediaries , even though the members did not gather at the same time or place. May happen inadvertently through… Phone E-mailSocial MediaStaff Constituents Subcommittees 10

Seriatim Meeting Scenario: 5-Person City Council Councilmember Wong posts her views on the proposed wage ordinance on her Facebook page Councilmember Garcia reads Councilmember Wong’s Facebook post, but does not write a reply Councilmember Garcia calls Councilmember O’Connor and tells her about Councilmember Wong’s post on the wage ordinance Result : A majority of a 5-person legislative body have now exchanged views on a matter within its subject matter jurisdiction outside of a properly noticed public meeting 11

Conversations & Questions to Staff The Brown Act allows communications between individual members of the legislative body and staff regarding a matter within the body’s jurisdiction (Gov. Code § 54952.2) NO “CROSS POLLINATION” ALLOWED : Staff may meet with every councilmember and answer the same question or talk about public agency matters, as long as staff does not tell councilmembers what other councilmembers have said 12

Conversations & Questions to Staff (II) Accidental pitfalls:Councilmember emails a question to staff regarding an upcoming agenda item Staff responds with an email to all councilmembers containing the question and answer 13

Conversations & Questions to Staff (III) Tips: Remind members of councils, boards and commissions to avoid sending “reply all” responses to group emails When sending out information to all members of a council, board or commission, do not identify that you are responding to a question from a members. ( i.e., “scrub” the response and original question) 14

Conferences, Training Sessions, Ceremonial and Social Events Brown Act requirements apply when a majority of a legislative body attends an agency-sponsored training session Examples: AB 1234 ethics training or a training on the labor negotiations process Training must be held in public and properly noticed. Advise councilmembers that they may discuss only the topic on the agenda, but may request that a matter be placed on an agenda for a future meeting.Public comment must be allowed! 15

Conferences, Training Sessions, Ceremonial and Social Events (II) Special exceptions for attendance at regional or state conferences that discuss issues of general interest to the public or public agencies, or purely social or ceremonial occasions (Gov. Code § 54952.2). BUT a majority of members may not discuss among themselves matters within the subject matter jurisdiction of the local agency 16

Agenda Brown Act Basics: A RefresherClosed Session: Exceptions, Agenda, & Reporting Compensation Issues Subcommittees Other Labor & Employment Tips 17

Closed Session What is a closed session?A meeting of a legislative body conducted in private, without the press or public When may a matter be taken into closed session? Only when a specific statutory exception appliesNo catch all exception for confidential or sensitive information 18

Getting into Closed Session Some commonly-used justifications for holding a closed session:Litigation Limited public personnel matters Some aspects of employee labor negotiations Limited aspects of real estate transactionsPublic security threats Ongoing criminal investigations by joint powers authority 19

Litigation Exception

Litigation Exception Pending Litigation Involving the AgencyFalls into three categories: Existing litigation to which the agency is a party, Threatened litigation against the agency, or Anticipated initiation of litigation by the agency Applies when an open, public discussion would prejudice the local agency’s position in litigation 21

Litigation Exception (II) Agency’s counsel must participate in the meeting (counsel’s participation by phone is okay)The legislative body may discuss and authorize settlement in closed session But the opposing party or its lawyer may not participate in the closed sessionBeware: Exemption is far more narrow than what is protected by the attorney-client communication or attorney work product doctrines 22

What is “litigation”? Includes any adjudicatory proceedings including those before:A court An administrative body exercising its adjudicatory authority A hearing officer An arbitratorIncludes Civil Service Commission and PERB proceedings. Gov. Code § 54956.9(c). 23

When is Litigation Threatened? There must be “existing facts and circumstances” that constitute “significant exposure to litigation” against the local agency. Gov. Code § 54956.9(d)(2). The Brown Act provides an exclusive list of what constitutes “existing facts and circumstances.” Gov. Code. § 54956.9(e)(1)-(5). 24

When is Litigation Threatened? (II) “Existing facts and circumstances” are limited to:Facts and circumstances that may result in litigation against the agency Where the agency believes facts and circumstances are NOT yet known to the potential plaintiff. (No disclosure needed.) OR Where the facts and circumstances are known to the potential plaintiff. (The facts/circumstances must be disclosed.) 25

When is Litigation Threatened? (III) Or…A written claim or other written communication from a potential plaintiff threatening litigation. (Writing is subject to disclosure.) An oral statement threatening litigation against the agency made at a public meeting; or An oral statement threatening litigation against the agency made to an agency official or employee, outside of a public meeting, but only if the official or employee creates a record of the statement prior to the meeting. (The record is subject to disclosure.) Gov. Code. § 54956.9(e) 26

When is Litigation Threatened? (IV) Determining whether “existing facts and circumstances” pose a significant threat of litigation to the agency is tricky.Tip : Always consult agency legal counsel! 27

Closed Session to Determine Whether “Threatened Litigation” Exists?YES! A Legislative body may meet in closed session for the sole purpose of determining whether a closed session is authorized regarding threatened litigation. Gov. Code § 54956.9(d)(3). 28

Personnel Exceptions

Public Personnel Exception A legislative body may meet in closed session To consider a public employee’s: Appointment Employment Evaluation of performanceDiscipline DismissalORTo hear complaints or charges brought against a public employee by another person or employee 30

Which Employees? Applies only to agency employees appointed by the legislative bodyE.g., City Manager or agency CEO Legislative body must have power to hire or fire employee Not employees that are hired, fired and report to an appointed employeeAssistant City Manager, Chief of Police, Assistant Housing Director 31

Which Employees? (II) Includes independent contractors appointed by the legislative body who function as an agency officer or employee Legal general counsel retained through an outside law firm Interim City Managers (sometimes retained as a contractor) Does not include Other types of independent contractors Elected officials or appointed members of a legislative body 32

Performance Evaluations Council may discuss performance of a covered public employeeThis includes discussions of Criteria to evaluate performance Parameters for a raise Priorities and goals for the following yearCouncilmembers’ evaluation notes composed elsewhere – these may be brought into and discussed in closed session 33

Gone Too Far? Final decisions regarding salary changes, bonuses, or other compensationCouncil may only discuss parameters for a raise in closed session. Approval of salary, bonus, raises, or other compensation must be made in a properly noticed public meeting. 34

Gone Too Far Again? Job reclassificationMay discuss only the employee’s ability to fill position in closed session No approval of reclassification in closed session Again, must pertain to employees that report to the legislative body 35

Gone Too Far? Project Details Project-specific goals for the future that go beyond setting evaluation criteria May list goals/priorities for future performance But may not engage in substantive discussions about the projects in closed sessionOK to inform the City Manager that she needs to improve oversight in Planning Department staff because many details were missing from the staff report regarding the zoning item NOT OK to discuss which substantive zoning changes the councilmembers would like to see made 36

Hearing a Charge or Complaint Against the Employee A legislative body may convene in closed session to “hear” specific complaints or charges brought against an employee by other individuals May review evidence, hear live testimony from witnesses, or adjudicate conflicting evidence if necessary. Not to discuss general personnel policies Purpose: to avoid undue publicity or embarrassment to the employee and allow full candid discussion by the legislative body 37

Special Notice for Hearing the Charge or Complaint Special 24-hour notice to employee of the right to have the hearing conducted in public rather than in closed session. Required only when the legislative body is acting as a fact-finding body regarding charges/complaints. Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568. Negative performance evaluations based on general performance do not constitute “complaints” or “charges” against the employee because they are not accusations against a person. (78 Ops.Cal.Atty.Gen . 218 (1995). 38

Failure to Provide 24-Hour Notice BEWARE OF THE CONSEQUENCESAny disciplinary action is null and void (Gov. Code § 54957(b)(2).) No opportunity to cure the defective notice The employee may not be disciplined for the same conduct 39

Who May Attend the Closed Session? Only those persons with an “an official or essential role to play in the closed session” may attend Under the Public Personnel exception the legislative body may meet in closed session to: Interview candidates they are considering hiringDiscuss performance with a covered employeeExamine witnesses with knowledge of the charge or complaint against the employee (when the legislative body is acting in its fact-finding role) May include the affected employee, that employee’s advocate, or other witnesses 40

Labor Negotiations Exception

Labor Negotiations Exception The legislative body may hold a closed session to instruct its bargaining representatives on employee salaries and benefits, and bargainable terms and conditions of employment The exception applies to both represented and unrepresented employees PERB charges may fall under this exception when tied with ongoing labor negotiations 42

Represented Employees No union members or representatives are allowed in the closed sessionNo bargaining may take place in the closed session But labor negotiations between the union and the designated agency negotiators may still take place behind closed doors 43

The Bargaining Representative of the Council The designated representative must be identified on the agenda or in an open meeting prior to the closed session The bargaining representative may be a member of the legislative body This is sometimes the case in negotiations with the City Manager or CEO Other agency employees may attend if needed (HR personnel, finance experts) 44

Who May Attend the Closed Session? Under the Labor Negotiation exception: No unrepresented employee or union representative No unrepresented employee Any agency employees reasonably necessary for consideration of the matter being discussed in closed session The designated negotiator required! 45

Swapping Out the Labor Negotiator What happens if the agency’s labor negotiator can’t make the closed session? You may use a different labor negotiator who was not identified on the agenda as long as the agency announces the identity of the negotiator in public following the session Tip : List the City Manager as the negotiator for the City, then you may interchange who accompanies the City Manager as necessary for the negotiations (not all persons attending the closed session need be named on the agenda) 46

Gone too far in Closed Session? What if, during a closed session with a Board and its labor negotiator, the Board discusses: Salary increases of other personnel? Anticipated costs of a large public works project?Other ways to meet union demands, such as budget amendments, placing a revenue measure on the ballot or cutting jobs? 47 Watch out! Finance and labor issues often cross over. Do not make final decisions in a closed session with a labor negotiator to approve employee compensation or amend the budget.

Exemption is Not Applicable to PLA Negotiations The legislative body may not discuss project labor agreements that the City enters into with private trade unions for public works projects Applies only to labor negotiations regarding agency employees 48

Closed Session Agendas

Notice & Agenda for Closed Sessions Public agenda must identify the statutory provision authorizing each closed sessionTip: Use the Brown Act’s safe harbor agenda language for closed sessions Gov. Code § 54954.5 Tip: List all exceptions that apply! For example, discussion of a PERB charge may qualify as both litigation and labor negotiation closed sessions Tip: Consult Agency Counsel! 50

To discuss and evaluate the City Manager’s performance in closed session pursuant to the Public Personnel exception:PUBLIC EMPLOYEE PERFORMANCE EVALUATION Title: City Manager Gov. Code § 54957 To confer and instruct the District’s labor negotiator under the Labor Negotiations exception: CONFERENCE WITH LABOR NEGOTIATORS Agency designated representative: Mr. Lam Nguyen Employee organization: LOCAL 500 Gov. Code, § 54957.6 51 Sample: Safe Harbor Descriptions

Reporting Actions

Reporting Out After Closed Session After closed session, the legislative body must reconvene into open session to report on certain actions taken or votes cast in the closed session Report may be oral or written 53

Reporting Out the Closed Session (II) Reportable actions include:Final settlement of pending litigation But only if there is a signed agreement in writing by all other parties and final approval does not rest with any other person or body. Gov. Code § 54957.1. Decisions to appoint, employ, or dismiss an employee Approval to initiate litigation, even, for example, to act as amicus curiae 54

Confidentiality Reminder Information discussed in closed session may not be disclosed unless the governing board votes to authorize disclosure Closed session information may be subject to other confidentiality rules, such as the the privacy rights of persons discussed in the closed session, or the attorney-client privilege 55

Consequences for Breaching Confidentiality Remedies for unauthorized disclosure of matters discussed during closed session include:Civil penalties (monetary fines) Injunctive relief Disciplinary action against a violating employee Referral to the district attorney for criminal prosecution 56

Agenda Brown Act Basics: A RefresherClosed Session: Exceptions, Agenda, & Reporting Compensation Issues Subcommittees Other Labor & Employment Tips 57

Executive Compensation Executive compensation rules were amended to impose certain limits on the approval of executive compensation following the fraud and corruption that occurred in the City of Bell Compensation of a “local agency executive” may be considered only at a regular or adjourned regular meeting. Never allowed at a special meeting. 58

Executive Compensation (II) Local agency executive = any employee who is not subject to the Meyers-Milias-Brown Act and who is:the CEO, deputy CEO, or assistant CEO of the agency; a department head; or a person whose position is held by an employment contract between the agency and that person 59

Executive Compensation – Oral Summary Required Legislative bodies must provide an oral summary of the agency’s recommendation regarding any proposed changes in an executive’s compensation prior to taking final action during the regular open meeting where the final action is taken. Gov. Code § 54953Cannot be approved on a consent calendar without an oral summary. 60

Cost-of-Living Increases (COLAs) The Brown Act prohibits “automatic contract renewals” for agency executives that provide an increase in compensation that exceeds a cost-of-living adjustment “Cost-of-Living” is defined to mean the California Consumer Price Index for Urban Wage Earners and Clerical Workers as calculated by the Department of Industrial Relations. Gov. Code § 3511.1 This prohibition further restricts excessive executive compensation 61

Agenda Brown Act Basics: A RefresherClosed Session: Exceptions, Agenda, & Reporting Compensation Issues Subcommittees Other Labor & Employment Tips 62

Subcommittees – Proceed at Your Own Risk Benefits: Deep dive work gets done!Downside: More Brown Act pitfalls! Committees may not consist of a quorum of the full legislative body Does the Brown Act always apply to Subcommittees?It depends 63

Standing vs. Ad Hoc CommitteesAll standing committees of the legislative body are subject to the Brown Act (Gov. Code § 54952(b).) Open meetings that require proper notice and agendas Ad hoc committees are not subject to the Brown Act if they: are advisory only (not decision-making);include only council or board members;do not have continuing subject matter jurisdiction; and do not meet on a fixed schedule set by the legislative body 64

Ad Hoc Committees Usually have a limited purpose and limited durationMay be used for labor negotiations or performance evaluations 65

Ad Hoc Committees (II) Tip: Be sure to clearly define a limited subject matter jurisdiction of the ad hoc committeeWarning! Be careful using ad hoc committees for all bargaining tablesAn ad hoc committee that is initially given, or is over time granted, continuing subject matter jurisdiction or a fixed schedule established by the full body is actually a standing committee subject to Brown Act rules Remember, just because a committee is labeled as “ad hoc” does not make it so 66

Subcommittees: Serial Meeting Minefield Recall that all Brown Act meeting requirements apply to standing subcommittees Subcommittees pose special Brown Act challenges 67

Subcommittees: Serial Meeting Minefield (II) Example: Board member Perez sits on a 2-member Reclassification Subcommittee with Board member Jackson Board member Perez also sits on a 2-member Salary Survey Subcommittee with Board member Gupta .During a meeting for the Reclassification Subcommittee, Perez discloses to Jackson information she discussed with Gupta about the employee salary survey 68

Subcommittees: Serial Meeting Minefield (III) STOP: Perez, Jackson, and Gupta (3 members of a 5-person body) have now all discussed the same topic (the salary survey) outside of a properly noticed meeting of the full legislative body But , no Brown Act violation of the Salary Survey Subcommittee because there was no quorum of that subcommittee involved in the discussions 69

Agenda Brown Act Basics: A RefresherClosed Session: Exceptions, Agenda, & Reporting Compensation Issues Subcommittees Other Labor & Employment Tips 70

Public Records Act Requests Prior to and during labor negotiations, confidential and sensitive material is developed to aid and assist the council or board and its bargaining representative (e.g., the salary survey) What happens if a member of the public submits a Public Records Act request for documents relating to the negotiation before it’s complete? 71

Public Records Act Requests (II) Government Code section 6254(p)(2) broadly exempts from disclosure most bargaining documents for local agencies if the activity is governed by the Meyers-Milias-Brown Act (MMB) The exemption includes records that reveal a “local agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under [the MMB].” Exemption is broad and does not require disclosure after negotiations are complete 72

Thank you! Additional questions? Teresa L. Stricker, Partner tstricker@publiclawgroup.com Jon Holtzman, Partner jholtzman@publiclawgroup.com November 20, 2019