OPEN MEETINGS -- The fact that most people working for local government agencies in California are "employees at will"—subject to dismissal for any or no reason—does not deprive them of the right to 24-hour written notice when the governing body of their agency proposes to discuss complaints or charges against them in closed session, the California Court of Appeal has ruled.

In its opinion filed April 30 in Kent v. Don Pedro Community Services District, the Fifth District Court of Appeal dealt with two district employees, General Manager Robert D. Kent and Treasurer Kimberly L.Topie, who were dismissed by the board of directors at an open and public meeting, and who sued alleging, among other things, that they had not been given the advance written notice required by the Brown Act.  That statute requires, in Government Code Section 54957 (b) (2):

As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

This notice was not provided, the employees said.

The statements in the petition and exhibits, plus reasonable inferences from them, allege that the district's board must have heard complaints about the conduct and performance of Kent and Topie at some time. There would seem to be only four logical possibilities about this: the board heard the complaints in an open session; it heard them in a closed session; it heard them in serial or other unauthorized meetings; it never, as a body, heard them at all. The first possibility can be ruled out, for it is undisputed that no reasons for the terminations were presented at an open meeting. The fourth possibility is improbable, for it would mean that when the motions to terminate Kent and Topie were made, seconded, and unanimously approved, the board members were acting independently and without advance discussion. This is not impossible. For example, someone might have brought complaints to each board member's attention separately at an earlier time, and the vote at the open meeting could have been based on each member's separate deliberation on those complaints. At the pleading stage, however, it is not necessary for the plaintiffs to disprove this possibility.

This leaves the second and third possibilities. If the third possibility—serial meetings—is what happened, then the district violated section 54952.2, subdivision (b)(1). If the second possibility—closed sessions—is correct, then the district was required to give Kent and Topie 24 hours' notice of the closed sessions and advise them of their right to have the complaints heard in open session. If it did not, it violated section 54957, subdivision (b), and the action it took based on the complaints was null and void.

Kent and Topie have stated causes of action under both provisions. In Kent's case, the petition alleged that the letter of censure was presented to him in a closed session before which he was not advised of his right to an open session; it was already typed and signed and laid out specific complaints. The board members could have heard these complaints earlier in the closed session or through a series of communications outside an authorized meeting. In Topie's case, the petition alleged that she was accused of misconduct at a closed session before which she did not receive notification of her right to an open session. The board could have been hearing those accusations for the first time at that meeting, or it might have heard them before through a series of communications outside an authorized meeting.

The Fifth District ruled that the employees could proceed in the trial court to try to prove the violations they alleged, and in doing so rejected the notion that, as employees at will, they had no right to the notice of complaints and charges.

It makes no difference that Kent and Topie were at-will employees. The relevant provisions of the Brown Act make no distinction between at-will employees and other employees. All local agency employees have the rights described in section 54957, subdivision (b). Section 54952.2, subdivision (b)(1), applies to all business within the local agency's jurisdiction. There is no exclusion for personnel matters concerning at-will employees.

Contrary to the district's view, there is no "conflict" between section 54957, subdivision (b)(2), and statutes on at-will employment, such as section 61050, subdivision (d), and Labor Code section 2922. There is no reason why a statute, such as the Brown Act, cannot give certain rights to employees who are terminable at will. There are many examples of statutes which do just that, such as antidiscrimination laws.