The San Bernardino County District Attorney's office, based on a complaint submitted by Californians Aware, has warned a school district that using a generic and all-encompassing closed session notice on the school board's meeting agenda violates the Brown Act.
More precisely, the letter from Deputy D.A. Michael Abney informed attorney Cathie L. Fields, of the Irivine law firm of Atkinson, Andelson, Loya, Ruud & Romo, that her defense of the wording used on the agenda for last December 15th's meeting of the Etiwanda Unified School District board of trustees was unacceptable. That wording, referring to a closed session, described it as concerning
Personnel: appointment, employment, contract renewal, assignment, transfer, promotion, demotion, discipline, dismissal, resignation, retirement, leave, out-of-class pay, termination, nonreelect, suspension, release of service, release of administrative assignment and/or any other action affecting employment status (Government Code section 54957)
Responding to a local watchdog's complaint, CalAware General Counsel Terry Francke emailed the district and warned the board that the agenda listing was "grossly uninformative" and came nowhere near the Brown Act's requirements for alerting the public as to closed session topics. But the board proceeded to take action in closed session to "approve( ) a resignation and release agreement with a permanent certificated employee…”, and a week later attorney Fields responded to Francke that the language used was in "substantial compliance with the Brown Act" and alerted by public that the trustees would be considering "a resignation and settlement agreement for an employee.”
Deputy D.A. Abney responded in his letter to Fields, "We respectfully disagree." But after detailing the reasons why he agreed with Francke's position and not hers, Abney concluded his letter as follows.
Despite your claim that the December 15, 2011 agenda substantially complied with the Brown Act, in your December 22, 2011 letter to Mr. Francke, you also represented that in the future the Board of Trustees “will utilize only the safe harbor language for personnel matters discussed in closed session.” During our telephone call, you made a similar statement to me. Based upon your representation that the Board will not repeat its above-described practice, but will instead rely upon the “safe harbor” descriptions provided by Government Code 54954.5, we will consider this matter closed.
We note, however, that for the reasons discussed above, we disagree with your position that the Board of Trustees’ December 15, 2011 agenda substantially complied with the Brown Act. We believe the facts and law make clear that the agenda was in violation of the Brown Act. However, we appreciate the Board of Trustees’ willingness to follow better practices in the future.