Privacy Issues in the Community College Workplace

c. Pending Litigation Concerning Personnel According to an opinion issued by the California Attorney General, a local agency’s legislative body, such as a city council or school board, may rely upon the “pending litigation” exception of the Brown Act to go into closed session to deliberate and act upon settlement of a lawsuit. This interpretation of Government Code section 54956.9 expands the right of legislative bodies to confer regarding pending litigation with its attorney in closed session. 310

Appointment of Employees/Nomination of Candidates In Gillespie v. San Francisco Public Library Commission, the California Court of Appeal held that the Brown Act’s exception to open meetings for appointment of employees encompasses nomination of candidates by committees that lack the power to appoint. 311 The San Francisco Public Library Commission held a closed session to consider the appointment of an Acting City Librarian, and subsequently submitted three names to the Mayor for consideration. After the Mayor appointed one of the candidates, the Commission stated that it would not disclose the names of the two unsuccessful candidates. Public Access Project filed a petition for writ of mandate to set aside the Library Commission’s nominations, claiming that the Commission violated the Brown Act by meeting in closed session and failing to publicly announce the nominations at that meeting. The court denied the petition. Public Access Project appealed. The Court of Appeal affirmed. The court held that the fact that the Commission did not have the power to appoint the Acting City Librarian did not prevent the Commission from meeting in closed session. Under the San Francisco City Charter, the Mayor shares the power of appointment with the Library Commission. The Court concluded that the Commission can nominate Department head candidates in closed session because such meetings are consistent with the purposes of Government Code section 54957, i.e., “to foster candid discussions by members of the legislative body concerning the qualifications of staff or prospective staff members without subjecting the latter to public embarrassment.” Moreover, the court held that the Brown Act makes clear that only the actual appointment, and not merely nomination, must be reported on the day of the nomination.

2. C ALIFORNIA P UBLIC R ECORDS A CT The California Public Records Act, Government Code section 6250 et seq., also requires employers to exercise caution in areas implicating employee privacy rights. Non-profit organizations of local government agencies and officials that are supported solely by public funds are now encompassed within the Act’s parameters.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 101