When it comes to public sector employment, one of the most important things to remember is that there is bound to be a law, rule, regulation, or ordinance that in some way controls or dictates the action to be taken. While there is little that is certain in this world, you can be assured that ignoring or circumventing the established protocol will almost always have consequences, and will usually involve the employee association. The following presents a broad overview of the what an agency’s governing body can and cannot do when it comes to directing agency employees and accessing employee files.

Interactions between the Agency's Governing Body and Agency Staff
What, if any, direction and control a public agency’s governing body has over the staff of the public agency will depend, in part, on how that issue has been addressed in either the agency’s charter or municipal code, or in the governing body’s rules and regulations.

Generally, the governing body does not take an active role in either managing or directing the agency employees in their duties; that task usually falls to the agency’s manager or director, and the employee’s supervisors. Should a governing body decide to become involved in the supervision of an agency employee, the governing body could be seen as demonstrating a disregard for the command structure of the agency. Its actions could also be interpreted as undermining the authority of not only the agency’s manager or director, but also the supervisors within the employee’s chain of command. Since a governing body usually does not wish to micro-manage at such a level, it is highly recommended that a governing body not involve itself with matters relating to individual employees.

When the matter on which the governing body wishes to become involved with concerns the employee’s speech, it is even more important that the governing body take a back seat and let the agency’s supervisors handle the situation. Aside from the fact that the governing body runs the risk of possibly acting contrary to the powers granted it, some may interpret the governing body’s actions as violating state and/or federal law. For example, the First Amendment protects the rights of employees to speak at a meeting of the governing body. This is not to say, however, that the governing body and/or any individual member of the governing body cannot impose reasonable time, place, and manner restrictions on the speech. The governing body and/or any individual member may limit an employee’s speech at a meeting when the speech becomes disruptive or has no relation to the agency or to the agency’s business.

Likewise, even though Government Code Section 54954.3(c) also prohibits a governing body from banning speech that criticizes the policies, procedures, programs or services of the agency, or the acts or omissions of the governing body, the governing body still has the right to regulate the time, place, and manner of the speech. It may also terminate the speech if it becomes disruptive.

Accessing Personnel Files
Although an agency’s governing body or any of its individual members may have a legitimate reason for wanting to access an employee’s personnel file, and although agency’s management may want to be responsive to such a request, it is important to remember that there are a number of restrictions that limit such access, even where the request is made with the best of intentions.

Employees have both constitutional and statutory rights to privacy that extend to information contained in personnel files.¹ As such, the agency has a duty to ensure that information contained in an employee’s personnel files or a supervisor’s desk file is not disclosed to others, including members of the governing body, unless the person has a demonstrated need to know.

Amazingly, being responsive to a complaint about an employee from either a constituent or another employee does not qualify as having a demonstrated need to know. However, members of the governing body have a right of access to an employee’s personnel files when the documents they wish to review have some relevance to their duties as a member of the governing body as a whole.

Further, while California Labor Code Section 1198.5 provides every agency employee with the right to inspect his or her own personnel records maintained by the agency, and allows the agency to establish procedures for such inspection, it makes no provision from which one can infer that either the governing body or any of its individual members would have a right of inspection. For that reason, it should not be relied upon as a basis for the governing body to access an employee’s personnel files.

And while the governing body and its individual members will most likely be very familiar with California’s Public Records Act (the "Act") Government Code Section 6250 et seq, and will very likely understand that the purpose of the Act is to provide the public with access to information that is within the possession of public agencies, the governing body may not be so familiar with the Act to know what types of documents are exempt from disclosure.² As a result, the governing body and/or any of its individual members could reasonably presume that they would be entitled to access an employee’s personnel files under the Act. The Act, however, specifically excludes personnel files from its definition of "public records."³

Fortunately, Government Code Section 54957 of the Brown Act allows a governing body to hold a closed session to not only consider the appointment or employment of a public employee, but also to consider the discipline, or dismissal of a public employee.⁴ As part of the governing body’s consideration, it may be provided with at least a portion of an employee’s personnel file, if not the whole file. In that situation, such access would be authorized because the records would be directly relevant to the governing body’s duties. Absent such a showing, however, should the governing body, or an individual member of the governing body make a request to review personnel records, you should refer to Government Code Section 6254(c), and advise the person making the request that the Act specifically excludes personnel records from disclosure.

Peace Officer Personnel Files
If the personnel files sought to be accessed by the governing body belong to a peace officer, the governing body should be advised of the various restrictions that state law places on such access. Both the penal code and the evidence code provide that the personnel records of a peace officer, including any citizen complaints lodged against the officer and any related investigation of such complaints, are confidential and may not be disclosed in any criminal or civil proceeding absent strict compliance with certain procedures.⁵

Moreover, the definition of what constitutes a peace officer’s "personnel records" encompasses a far greater range of records than that of non-peace officer employees. Pursuant to Penal Code Section 832.8, personnel records are defined as

any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (b) Medical history. (c) Election of employee benefits. (d) Employee advancement, appraisal, or discipline. (e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy."⁶

Although members of the governing body may find themselves in a situation involving a citizen complaint against a member of the police department where they would want to review a peace officer’s personnel file so they could respond to the constituent, these restrictions effectively limit their ability to respond with anything substantive. Given that the legislature has imposed strict limitations on accessing a peace officer’s personnel records, the governing body should always speak with their legal advisor before attempting to access such records.

Conclusion
As the above demonstrates, even though the governing body may not have an "all access" pass to the personnel files of agency employees and is somewhat limited in its ability to directly manage or control agency employees, the governing body of a public agency maintains the right to access the personnel files of agency’s employees and to interact with agency employees whenever such access or interaction is related to its duties, and they have complied with any mandated procedures.