Achieving Brown Act Success: What Are The Top Five "Dos And Don'ts" For Closed Session?

Category: Published Articles
Date: Jul 24, 2015 03:43 PM

The Ralph M. Brown Act, Government Code section 54950, et seq., commonly referred to as the "Brown Act," is a staple of public governance in California. Although enacted back in 1953, the Brown Act continues to evolve and change. The Brown Act generally requires that meetings of governing bodies of local public agencies be open and public. While there are exceptions to open and public meetings that allow for an agency to conduct some business in "closed session," such exceptions are limited and construed narrowly. Navigating the Brown Act to determine when a closed session is lawful is a challenge for all public agencies, including special districts. These top five "dos and don'ts" relating to closed sessions are intended to provide districts with a roadmap to avoid unintentional violations of the Brown Act.

1. DO reference the applicable Government Code section for all closed session items in the agenda for the meeting.
In order to properly discuss an item in closed session, the item must be placed on the agenda for the meeting. Next to the description of the closed session item on the agenda, the applicable Government Code section that corresponds to the item should be referenced (e.g. Conference with Legal Counsel pursuant to Government Code section 54956.9(d)(1)). Government Code section 54954.5 provides descriptions for the various types of closed session items that can lawfully be held.

2. DON'T include the name of the employee when describing a closed session item for "Public Employee Discipline/Dismissal/Release."
For the closed session agenda item, Public Employee Discipline/Dismissal/Release, do not state the name of the employee in the agenda item description. No additional information should be stated other than "Closed session pursuant to Government Code section 54957, Public Employee Discipline/Dismissal/Release." This differs from going in to closed session to discuss the appointment, employment or evaluation of a public employee. In those instances, the position to be filled or reviewed must be specified on the agenda, but that is not true for discipline/dismissal/release.

3. DO allow for public comment before recessing into closed session.
Government Code section 54954.3 requires that the governing body allow for members of the public to directly address them before they discuss the item. Therefore, districts should be careful to ensure that public comment occurs before the governing body recesses into closed session.

4. DON'T allow unnecessary individuals to attend closed session.
Closed session usually only involves the governing body members, and the governing body may not conduct a "semi-closed" session by permitting some members of the public to attend the meeting while excluding others. It may, however, allow additional district staff required or witnesses who have an official or essential role to play in the closed session meeting. Individuals not necessary to the closed session should be excluded.

5. DO remember that the purpose of the Brown Act is to govern via openness.
Remember that the Brown Act's central tenet is to ensure that governing bodies conduct business in an open and transparent manner. Agencies may lose track of this important fundamental principle, and instead think of closed session as means to hide or conceal governance from the public's scrutiny. Remember that closed session functions as the exception to the rule, not the default, and may only be authorized when a specific statutory exception to the open meeting requirement of Brown Act applies.


Mark Meyerhoff, partner in Liebert Cassidy Whitmore's Los Angeles and San Diego offices, represents clients in all types of civil litigation, administrative proceedings and arbitrations. He regularly advises and represents clients in all aspects of employment and traditional labor relations matters. Mark can be reached at mmeyerhoff@lcwlegal.com.

Oliver Yee, attorney in Liebert Cassidy Whitmore's Los Angeles office, provides representation and legal counsel to the Firm's clients for a variety of labor and employment law issues. He also has experience in labor negotiations, having represented public agency clients as their chief negotiator. Oliver can be reached at oyee@lcwlegal.com.

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