Privacy Issues in the Workplace

B. T HIRD P ARTY A CCESS TO P ERSONNEL A CTIONS , R ECORDS , AND F ILES

1. B ROWN A CT The Ralph M. Brown Act (Brown Act), Government Code section 54950 et seq ., (significantly amended in 1994 – see the Liebert Cassidy Whitmore workbook on “The Brown Act” for current law) requires public agency governing boards and commissions to meet in public to take official action, unless an exception exists. One such exception exists in Government Code section 54957. This section allows public agencies to meet in closed session to consider the appointment, employment, evaluation of performance, or dismissal of a public employee. The Brown Act also provides that any employment action taken in closed session must be publicly reported at the public meeting during which the closed session takes place or at the next public meeting, 315 though there are some technical exceptions to this provision. With regard to privacy rights of those attending meetings, Section 54953.3 provides that a public agency cannot force a speaker participating in a public meeting to state his or her name and address for the record. Agencies may only ask participants to volunteer that information. Additionally, agencies cannot compel speakers at public meetings to provide “personally identifiable information.” 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. 316 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.” 317

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

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