Privacy Issues in the Workplace

Government Code section 54957 of the Brown Act. 319 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. 320 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. 321 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, 322 especially where the Board rejected the arbitrator’s recommendation and, instead, imposed termination.

b. Notice and Reporting of Closed Session Personnel Matters Government Code section 54957.7 is similarly instructive. This section requires the legislative body of a local agency to state the reasons and authority for holding a closed session at the open session during which the closed session took place or at the next public session held by the agency. This section further provides: “Nothing in this section shall require or authorize the giving of names or other information which would constitute an invasion of privacy or otherwise unnecessarily divulge the particular facts concerning the closed session.” In order to comply with the public announcement requirements and at the same time respect an employee’s privacy rights, employee numbers, and not names, should be used when reporting personnel decisions made in closed session. This would assure an employee’s anonymity and enable an employer to comply with the Brown Act. Please note, however, that employee social security numbers must not be used in announcing the action.

City’s Overly-Cautious Notice of Personnel Matter Resulted in Insufficient Notice and City’s Termination of an Employee Deemed Null and Void 323 In October 2002, the City of King City Council held a special meeting. On the agenda for the meeting was a single item: “Per Government Code section 54957

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 100