Privacy Issues in the Workplace

Public Employee (employment contract).” The minutes from this meeting stated that there was “no reportable action taken in closed session.” Several days following the meeting, Keith Breskin, the City Manager, gave Roberto Moreno, the finance director, a two-page memorandum that informed Moreno he was being terminated and detailed five alleged incidents of Moreno’s misconduct. Moreno was given no opportunity to respond to the accusations before his termination became effective. Moreno filed a petition for a writ of mandate alleging that the City had violated the Brown Act in terminating his employment and sought to have his termination declared null and void. Following an evidentiary hearing, the trial court granted Moreno’s petition. In addition to declaring that Moreno’s termination be declared null and void, the court awarded Moreno damages, fees, and costs. The Court of Appeal affirmed. Among other bases for its holding, the Court ruled the City’s October 17 agenda was in violation of the Brown Act because it did not provide a brief general description of the business to be transacted or discussed at the meeting. The City argued that a more general description of the business on the agenda - i.e., "Moreno’s dismissal" – may have violated Moreno’s privacy rights . In response, the Court stated that the City could still properly specify the action while protecting Moreno’s privacy rights. The Court suggested that if the agenda stated “ Public Employee Dismissal,” this would have been a sufficient description under the Brown Act. 326

c. Pending Litigation Concerning Personnel According to an opinion issued by the California Attorney General, a local agency’s legislative body, such as a city council or school board, may rely upon the “pending litigation” exception of the Brown Act to go into closed session to deliberate and act upon settlement of a lawsuit. This interpretation of Government Code section 54956.9 expands the right of legislative bodies to confer regarding pending litigation with its attorney in closed session. 327

Appointment of Employees/Nomination of Candidates In Gillespie v. San Francisco Public Library Commission, the California Court of Appeal held that the Brown Act’s exception to open meetings for appointment of employees encompasses nomination of candidates by committees that lack the power to appoint. 328 The San Francisco Public Library Commission held a closed session to consider the appointment of an Acting City Librarian, and subsequently submitted three names to the Mayor for consideration. After the Mayor appointed one of the candidates, the Commission stated that it would not disclose the names of the two unsuccessful candidates. Public Access Project filed a petition for writ of mandate to set aside the Library Commission’s nominations, claiming that the Commission violated the Brown Act by meeting in closed session and failing to

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 104