Judges: BILL LOCKYER, Attorney General
Filed Date: 4/19/2002
Status: Precedential
Modified Date: 7/5/2016
BILL LOCKYER Attorney General THOMAS S. LAZAR Deputy Attorney General
THE HONORABLE WESLEY CHESBRO, MEMBER OF THE STATE SENATE, has requested an opinion on the following questions:
1. May a county board of education meet in closed session under the "personnel exception" of the Ralph M. Brown Act to consider the appointment, employment, evaluation of performance, discipline, or dismissal of certificated or classified employees of the county superintendent of schools?
2. May a county board of education meet in closed session under the "labor negotiations exception" of the Ralph M. Brown Act to consider the salaries or compensation paid in the form of fringe benefits to certificated or classified employees of the county superintendent of schools?
1. A county board of education may not meet in closed session under the "personnel exception" of the Ralph M. Brown Act to consider the appointment, employment, evaluation of performance, discipline, or dismissal of certificated or classified employees of the county superintendent of schools.
2. A county board of education may not meet in closed session under the "labor negotiations exception" of the Ralph M. Brown Act to consider the salaries or compensation paid in the form of fringe benefits to certificated or classified employees of the county superintendent of schools.
The superintendent generally oversees the schools of the county, enforces the course of study, audits the expenditures of school districts, and conducts teacher institutes, among other duties and responsibilities. (See Cal. Const., art.
We are asked to determine whether a board may meet in closed session to discuss employment related issues concerning the superintendent's employees under two "exceptions" contained in the Ralph M. Brown Act (Gov. Code, §§
1. Personnel Exception
The first question to be addressed is whether a board may meet in closed session to consider the appointment, employment, evaluation of performance, discipline, or dismissal of certificated (those in positions requiring certification qualifications such as classroom teachers) or classified (those in positions not requiring certification qualifications such as office staff) employees of the superintendent pursuant to what is known as the "personnel exception." Section
"Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency . . . from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"For the purposes of this section, the term `employee' shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors . . . Closed sessions held pursuant to this section shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline."
In analyzing the provisions of section
The word "consider" in the context of section
Does a board possess the power to appoint, employ, evaluate the performance of, discipline, or dismiss the certificated or classified employees of the superintendent? We have previously examined the duties of a board and a superintendent with respect to the appointment, discipline, and establishment of salaries of certificated and classified county personnel. (72 Ops.Cal.Atty.Gen. 25, supra.) We concluded that the superintendent, and not the board, is authorized to appoint, discipline, and establish the salaries of certificated and classified employees. (Id. at pp. 29, 31.) A decision of a superintendent to employ persons in positions requiring certification qualifications does not require consideration by, or the approval of, the board. (See Ed. Code, §§
The purposes of section
We must construe the personnel exception narrowly in favor of the Act's general requirement of holding open and public meetings. (Bollinger v. San Diego Civil Service Commission, supra, 71 Cal.App.4th at p. 573; Fischer v. Los Angeles Unified School District, supra, 70 Cal.App.4th at p. 96; San Diego Union v. City Council (1983)
Accordingly, we conclude that a board may not meet in closed session under the personnel exception of the Act to consider the appointment, employment, evaluation of performance, discipline, or dismissal of certificated or classified employees of the superintendent.3
2. Labor Negotiations Exception
The second question presented is whether a board may meet in closed session under the "labor negotiations exception" (§
"Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency's designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation."
In 61 Ops.Cal.Atty.Gen. 323, 326 (1978), we analyzed the scope of section
"This section involves what is commonly known as the `meet and confer' provisions of the Meyers-Milias-Brown Act, section 3500 et seq. The governing body of a local agency such as a county board of supervisors may conduct its `meet and confer' session, that is, its labor negotiations, either itself, or through its `designated representative.' Section
54957.6 is pertinent when it selects the latter option. [Citation.]"
Based upon the plain text of section
We recognize that a board has the responsibility to "[a]pprove the annual budget of the county superintendent of schools before its submission to the county board of supervisors" (Ed. Code, §
Accordingly, in answer to the second question, we conclude that a board may not meet in closed session under the labor negotiations exception of the Act to consider the salaries or compensation paid in the form of fringe benefits to certificated or classified employees of the superintendent.
"The superintendent is also authorized, through the county school service fund, to provide for the coordination of educational programs among school districts and community college districts. (§
Thus, for these employees, a board shares authority with the superintendent and may meet in closed session under the personnel exception to consider whether to approve the superintendent's employment decisions. (Cf. Gillespie v. San Francisco Public Library Commission (1998)