OPEN MEETINGS -- Californians Aware and its founding president, Richard McKee, have filed suit against a labor-management committee of the Los Angeles Community College District established to maintain the quality and control the costs of the district's employee health benefits program. 

SEE UPDATE FOLLOWING POST

The committee in question was formed pursuant to a 2002 negotiated agreement between the district board and its workforce unions, and that origin, argues the Attorney General in a published opinion, means it may meet privately, as it has since then.  CalAware and McKee disagree, and seek a court order to the committee to begin complying with the Brown Act. The lawsuit, filed Friday in Los Angeles Superior Court, contends that the district's Joint Labor/Management Benefits Committee is subject to the Brown Act because its existence results from the 2002 action of the district board in adopting a far-reaching Master Benefits Agreement calling, among other things, for the formation of such a committee, and a later implementing rule requiring the district to convene the committee.The committee chair, Dr. Susan Aminoff, simply denies that it is subject to the Brown Act.  Her position is backed by the Attorney General's opinion, which concludes that

the District’s rule here merely implements a predecessor provision in the Master Benefits Agreement, which is the product of the collective bargaining process between labor and management. The existence of the Master Agreement compelled the adoption of the District’s Board Rule. The Master Agreement, not the District Board Rule, creates the JLMBC and prescribes its composition, duties, and scope of authority. The Master Agreement commands the parties to act, and the subsequent District Board rule responds to that command, acknowledging the agreement’s primacy with the phrase “as prescribed by the Master Agreement.” The Master Agreement establishes the District’s duty under collective bargaining to convene, or call, the benefits JLMBC together, which the District fulfilled by adopting its rule.  Strictly speaking, this was not an act of establishment or creation, but merely of implementation.

When we interpret a statute, we are required to give the words their plain meaning. We do so here. To “create” means, among other things, “to bring into existence,” or “to produce or bring about by a course of action or behavior.” The JLMBC was brought into existence through the process of collective bargaining memorialized in the Master Agreement. Having established the JLMBC, the Master Agreement conferred upon the District the complementary obligation to cause the JLMBC to assemble, which the District discharged through the adoption of Rule 101702.10.

Because the JLMBC was created through the process of collective bargaining as memorialized in the Master Agreement, it does not come within the definition of a legislative body under section 54952.20  We therefore conclude that the Los Angeles Community College District Joint Labor Management Benefits Committee is not required to comply with the Ralph M. Brown Act.

The opinion resulted from a request by Jack Scott, chancellor of the California Community Colleges. McKee, a Pasadena Community College professor who successfully sued his own employer on similar grounds 12 years ago, contacted Scott to protest the opinion's conclusion shortly after it was published on the last day of 2009, and said it could lead to much broader escapes from the open meetings realm:

The downside of this opinion is clear.  A board of trustees, in an agreement with just one of its bargaining groups (say mid-level administrators), could establish any number of committees for different purposes, and keep those meetings and all the actions taken by those committees secret from the public under this opinion.

The committee, comprising three district administrators and representatives of six employee unions and operating for years without public scrutiny, is given the authority to

1. review the District's Health Benefits Program and
effect any changes to the program it deems necessary to contain costs while
maintaining the quality of the benefits available to employees (this includes,
but is not limited to, the authority to substitute other plans for the
District's existing health benefits plans);

2. recommend the selection, replacement, and evaluation
of benefits consultants;3. recommend the selection, replacement, and evaluation
of benefit plan providers;

4. review and make recommendations regarding
communications to faculty and staff regarding the health benefits program and
their use of health care services under it;

5. review and make recommendations regarding benefit
booklets, descriptive literature, and enrollment forms;

6. study recurring enrollee concerns and complaints and
make recommendations for their resolution;

7. participate in an annual review of the District's
administration of the Health Benefits Program;

8. review and make recommendations about the District’s health benefits
budget; and

9. if health care legislation that necessitates modification of the
District’s Health Benefits Program is enacted before the termination of this
agreement, assess the effects of such legislation and make recommendations to
the District and the Exclusive Representatives about appropriate action to
take.

UPDATE:  After a June 30 hearing in Los Angeles County Superior Court, Judge David P. Yaffe denied CalAware's petition, ruling that the Educational Employment Relations Act (governing labor relations in public education) removes negotiation meetings between the "public school employer" and public employee bargaining unit representatives from the application of the Brown Act.  The judge ignored the facts that

  • the EERA's definition of "public school employer" in this connection (Government Code Section 3540.1 (k)) is the board of trustees, not district administrators;
  • any statutory term, including those in the EERA must, under the California Constitution, be "narrowly construed if it limits the right of access";  and
  • the function of the JLMBC is (as noted above) is far more comprehensive and policy-directed than, as Judge Yaffe described it, "to filter out the changes (in benefit plans) that are to be brought to the negotiating table by requiring some degree of consensus by both labor and management members of the (committee) in order to submit a change to the board of trustees for its consideration . . ."