Privacy Issues in the Community College Workplace

a. Closed Session for Certain Personnel Matters A closed session may be held 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 an employee by another person or employee unless the employee requests a public hearing. 300 Under the Brown Act, an “employee” includes an officer or an independent contractor who functions as an officer or an employee but excludes any elected official, member of a legislative body, or other independent contractors. Thus, the governing body may not meet in closed session regarding the filling of a vacancy on the governing board. It may not meet in closed session to discuss entering into a contract even if that contract would provide for personal services. Under Government Code section 54957, prior to holding a closed session on specific complaints or charges against an employee, the agency must give the employee written notice of his or her right to have the complaints heard in open rather than closed session. The notice is required to be delivered personally or by mail at least 24 hours prior to the session. Closed sessions held under section 54957 may not include discussion or action on proposed compensation, except for a reduction in compensation resulting from discipline. Section 54957 permits discussion of personnel actions in a closed session to protect the affected employee’s privacy rights. The California Attorney General has stated that the “purpose in permitting an executive session concerning personnel matters is to avoid undue publicity and embarrassment to the affected employee.” 301

The following are decisions which describe the circumstances under which an agency may or may not hold a closed session under section 54957:

Kolter v. Com. of Professional Competence of the Los Angeles Unified School District 302 The governing board of the Los Angeles Unified School District met in closed session and initiated the process to dismiss Kolter, a permanent certificated elementary school teacher. Kolter did not receive any pre-meeting notice of the session or the charges against her. After the closed session, the District notified Kolter of its intent to dismiss her from her employment. The Court of Appeal held that the board was not required to give Kolter 24 hour notice of the meeting because it did not conduct an evidentiary hearing on the charges against her. Rather, it considered whether those charges justified the initiation of dismissal proceedings which would later result in an evidentiary hearing. The Kolter court found that the Legislature used the verb “hear” in connection with “complaints or charges,” but the verb “consider” in connection with “dismissal of a public employee.” 303 The word choice is significant. To “consider” is to deliberate upon, while to “hear” is to listen to in an official capacity. A “hearing” is a formal, official proceeding, usually open to the public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented. 304

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 98