February 13, 2012
Mr. Rick Zanutto, President
Bear Valley Community Services District
28999 South Lower Valley Road
Tehachapi, CA 93561-9637
RE: RALPH M. BROWN ACT—DEMAND FOR CURE AND CORRECTION
Dear Mr. Zanutto,
Californians Aware demands that the Board of Directors of the Bear Valley Community Services District provide a cure and correction of multiple violations of the Ralph M. Brown Act occurring at its December 8, 2011 regular meeting. The agenda for that meeting listed, as item 4 C:
"A. REQUEST FOR CLOSED SESSION REGARDING PUBLIC EMPLOYEE PERFORMANCE REVIEW §54957
ASSISTANT GENERAL MANAGER
CHIEF OF POLICE
PUBLIC WORKS SUPERINTENDENT
The Brown Act, in Government Code Section 54957, states in pertinent part:
(b)(1) Subject to paragraph (2), 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 . . . evaluation of performance . . . of a public employee . . .
(4) . . . Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.
Included in the scope of discussion conducted in the December 8 closed session in question were employment contract terms, including compensation for the following employees:
John Yeakely, General Manager
Severance pay, disability compensation, salary, automobile/auto allowance, paid vacation, health and life insurance, dues and subscriptions, professional development travel and subsistence, club memberships
Brown Act Demand/Bear Valley Community Services District
February 13, 2012
Page 2 of 3
Sandra L. Jantzen, District Secretary/Assistant General Manager
Severance pay, disability compensation, salary, health and life insurance, professional development travel and subsistence.
Terry Freeman, Chief of Police
Severance pay, salary, automobile, administrative leave, automobile, health and life insurance, dues and subscriptions, professional development travel and subsistence, club memberships.
Clinton R. Stewart, Public Works Superintendent
Severance pay, disability compensation, salary, administrative leave, automobile, health and life insurance, professional development travel and subsistence.
Rudy Hernandez, Finance Director
Severance pay, disability compensation, salary, administrative leave, health and life insurance, professional development travel and subsistence.
Discussing and approving these items of compensation in closed session deprived the public of the notice to which it was entitled under the Brown Act, which would have permitted district residents to address the Board on the specifics of the contract terms, including compensation. The Brown Act accommodates this legitimate public opportunity by prohibiting discussion of compensation in any closed session called to evaluate performance—or to consider any “personnel” decision—and by designating a different agenda listing for closed sessions in which compensation will be discussed and approved, namely in Government Code Section 54954.5:
For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format.
(f)With respect to every item of business to be discussed in closed session pursuant to Section 54957.6:
CONFERENCE WITH LABOR NEGOTIATORS
Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations)
If the public had been thus appropriately notified, interested residents would have been alerted to request and obtain copies of the proposed contracts and to address the board prior to the open session final action––required under Section 54954.2—on the subject of compensation in an informed manner. Confining the discussion to a closed session designated for performance evaluation—coupled with the agenda's "SUMMARY OF ACTIONS [already] TAKEN IN CLOSED SESSION"— deprived them of that opportunity.
To cure and correct these violations, Californians Aware demands that the board rescind any and all compensation commitments made on December 8, 2011 and not reinstitute them until such time as the public is given express and unambiguous notice on the agenda that final approval of the contracts is scheduled for open session discussion and action and that copies of the proposed contracts are available at the District office at any time.
Failure to comply with this demand will leave Californians Aware with no choice but recourse to the remedies provided in Government Code Sections 54960 and 54960.1, coupled with an award of attorney's fees and costs as provided in Section 54960.5.
Awaiting CalAware's response