Privacy Issues in the Community College Workplace

The Kolter case holds that 24 hours notice is not required before the legislative body decides to initiate discipline against an employee. A cautious and conservative approach is to continue to provide 24 hours notice until the exact boundaries of the Kolter decision are litigated in the coming years. The Kolter decision turned on the fact that the board's action in closed session was not the final decision. If your legislative body’s consideration of discipline is the agency’s final decision, 24 hours notice is still required.

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Furtado v. Sierra Community College The California Court of Appeal held that negative performance evaluations do not constitute “complaints or charges” against an employee pursuant to Government Code § 54957 of the Brown Act. 305 Arguably then, a public employer may consider in closed session whether to retain an employee based on evaluations despite the employee’s request to respond in open session. However, be careful in light of more recent Court of Appeal decisions, e.g. Morrison v. HACLA, infra and Moreno v. City of King City, infra . Fischer v. Los Angeles Unified School District The California Court of Appeal held that the evaluation of the performance of probationary teachers does not constitute the bringing of “specific complaints or charges,” and, therefore, the teachers are not entitled to notice nor have the right to request an open session of the school board meeting in which the decision to re-elect or not re-elect the teachers will be made. 306 Bollinger v. San Diego Civil Service Commission A civil service commission’s closed session hearing to discuss appropriate discipline for employee misconduct (including possible demotion) did not violate the employee’s Brown Act right to an open, public hearing. 307 Be Cautious! Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners The Court of Appeal ruled that a board considering the recommendation of an arbitrator violated Government Code section 54957 by not providing the employee with 24-hours notice of his or her right to have the complaints or charges heard in open session before the board reviewed the arbitration record supporting the arbitrator’s recommendation, 308 especially where the Board rejected the arbitrator’s recommendation and, instead, imposed termination.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 99