Privacy Issues in the Workplace

Kolter v. Com. of Professional Competence of the Los Angeles Unified School District 318 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.” 319 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. 320

LCW Practice Advisor

 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.

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 section 54957 of the Brown Act. 321 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.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 102