City Councils often have appointing authority over the City’s very highest officials, such as the City Manager and City Attorney. But otherwise, individual Council members and the Council as a body have virtually no role with regard to individual City employees. In fact, a Council member’s role vis-à-vis such employees probably has more in common with that of a City resident (who is an interested "outsider" looking in at the City employment structure) than with that of a private company’s CEO.

This Article describes several legal reasons why City Council members’ roles with regard to individual employees have such substantial limitations. The Article then sets forth some practical approaches for dealing with individual employees.

A. Why a City Council Member’s Role is So Limited
1. City Council Members Are Meant to Act as Part of the Council, Not Individually
A primary reason why City Council members have virtually no role with regard to individual City employees is that applicable law provides that Council members will act as a body, not as individuals. Indeed, the law requires that, with limited exceptions, the Council conduct city business only through duly convened meetings "in full view of the public."¹ Thus, when an individual City Council member takes unilateral action, his or her conduct may well lose the sanction of the law. The Council member may then lose certain protections and immunities from liability, and his or her actions may more easily be rescinded or disputed.²

2. Legislative immunity is limited
Second, City Council members may well not have legislative immunity with regard to actions as to individual employees. This is particularly true if the Council member acts unilaterally. Typically, when a City Council member’s acts as a legislator, he or she has absolute immunity. But that immunity can be lost when the legislator takes actions outside the "sphere of legitimate legislative activity."³ Accordingly, if a City Council member takes any unilateral actions concerning an individual employee, he or she could risk loss of legislative immunity. Even actions taken collectively with the full Council might conceivably lack immunity if they relate to specific individuals instead of furthering general City policy.

3. Under California Law, City Council Members Can Be Liable for Invasion of Privacy, Among Other Things
Third, the threat of liability presents another factor that limits Council member roles toward individual employees. One potential type of liability is for invasion of privacy. In one case, Braun v. City of Taft, a city council member was subject to censure by the council for removing documents from a city employee’s personnel file and revealing them to the press. Although the Court ultimately determined that the particular documents were public records that could legally be disclosed, the Court remanded the case to the Council to allow it to decide whether the member should suffer censure for other reasons. These possible reasons included his "unilateral decision regarding [the documents’] suitability for disclosure."⁴ Other courts have articulated that public employees can have limited privacy rights in their personnel files.⁵ Employees can thus argue that improper review and/or disclosure should result in personal liability for invasion of privacy.⁶

4. Other Officials, Such as City Managers, are Charged with Overseeing City Employees
Fourth, Council member actions with regard to individual employees may be considered suspect because other high-level City officials are officially charged with supervising and/or overseeing individual employees. Most cities appoint City Managers to provide overall supervision to a City’s human resources function. Because a designated official already has this responsibility, there should be little need for City Council members to become involved with individual employees.⁷

B. Practical Advice for Dealing with Individual Employees
1. Refrain from Doing So, Unless it is a Part of One’s Obligations to the City
The most prudent course for a City Council member is to refrain from taking action, or otherwise becoming involved in any supervisorial role, with respect to individual City employees.

2. Proceed as Part of Properly Convened City Council Meetings, and Not Individually
If a Council member must become involved in decisions with respect to an individual employee, the member should not act unilaterally, but should instead act as part of the Council. The member should also act pursuant to the requisite formalities that will insure legislative immunity applies.

3. The City Manager or Other Appropriate City Employee Should Interface with Employees
Tasks such as reviewing employee personnel files, gathering information from supervisors, and providing instruction as to particular employees should be done by the City Manager or other official charged with overseeing the City’s employment structure. This is true even for matters of public interest. If City residents object to the conduct of particular employees, the Council can respond by asking the City Manager to investigate and take appropriate action regarding the objections. For example, in a small City experiencing resident complaints about rude police officers, the Council should itself refrain from taking direct action as to those officers. Instead, it can ask the City Manager to investigate and respond to the issue globally. The City Manager can then, as part of his or her comprehensive response, take appropriate employment action as to the officers in question.

4. Comply with the Brown Act
The Ralph M. Brown Act provides that certain official bodies, including City Councils, may only act through duly called and regularly held meetings that are open to the public. A City Council can conduct closed meetings to discuss certain personnel matters. These include meetings in which the Council discusses the "appointment, employment, evaluation of performance, discipline, or dismissal of a public employee . . . "⁸ This closed meeting exception, however, may apply only to the Council’s consideration of employees over whom the Council has appointing authority (e.g., City Managers, City Attorneys, and others). A California Attorney General opinion describes that the closed meeting exception does not apply to a body’s consideration of an employee over whom it does not have appointing authority.⁹ Lack of compliance with the Brown Act may lead to adverse legal consequences, including the voiding of actions the Council takes.

5. Consult with Legal Counsel
These issues have some complexity. Also, situations in which Council members must take a role vis-à-vis City employees will be rare. Council members should obtain legal advice when such circumstances arise to assure they undertake their role appropriately.