N. Personnel matters.

Bagley-Keene Act: The Bagley-Keene Act distinguishes between public employees and public officers. Public employees expressly do not include “any person who is elected to, or appointed to a public office by, any state body.”  Cal. Gov’t Code § 11126(d). If a state body meets to consider the appointment, employment or dismissal of a public officer, it must hold an open session. 66 Ops. Cal. Att'y Gen. 34 (1985). A public officer is one who carries out a public duty delegated to him or her as an agent, and which is a part of governmental functions of the particular department. Id. A public officer is also one who "exercises some part of the sovereignty of the state, holds an office created by the Constitution or some statute, and has a position which is continuing rather than occasional or temporary." Id.

A state body may hold a closed session to consider a public employee's appointment, employment, evaluation of performance, or dismissal, or to hear complaints and charges against that employee. Cal. Gov't Code § 11126(a)(1). An employee may request a public hearing. Cal. Gov't Code § 11126(a)(2). The following positions are among those considered public employees, and therefore a state body may hold a closed session to consider the appointment or termination of that position:

(1) officers of the California State University who receive compensation for their services, other than per diem and ordinary and necessary expenses. Cal. Gov't Code § 11126(b);

(2) the Director of the California Post-secondary Education Commission. Cal. Gov't Code § 11126(c)(8);

(3) the Executive Director of the Council for Private Post-secondary and Vocational Education. Cal. Gov't Code § 11126(c)(9);

(4) the Executive Officer of the Franchise Tax Board. Cal. Gov't Code § 11126(c)(10);

(5) the Executive Secretary of the State Board of Equalization. Cal. Gov't Code § 11126(f)(7);

(6) the Chief Executive Officer of the Teachers' Retirement Board or the Board of Administration of the Public Employees' Retirement System, or the Chief Investment Officer of the State Teachers' Retirement System or the Public Employees' Retirement System. Cal. Gov't Code § 11126(g)(1); and

(7) the Executive Director of the Commission on Teacher Credentialing. Cal. Gov't Code § 1126(g)(2).

Brown Act: Under the Brown Act, a legislative body may hold a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the public employee requests a public session.” Cal. Gov’t Code § 54957(b)(1).  The term “employee” shall include an officer or an independent contractor who functions as an officer or any employee but shall not include any elected official, member of a legislative body or other independent contractor. Cal. Gov’t Code § 54957(b)(4). See, e.g., Hoffman Ranch v. Yuba County Local Agency Formation Commission, 172 Cal. App. 4th 805, 810-13, 91 Cal. Rptr. 3d 458 (2009)(holding that contractor assigned to perform “executive officer services” for county local agency formation commission was an “officer and thus an “employee” within meaning of statute, despite contract specifying that contractor was an independent contractor not agent or officer of commission).  In order to hold a closed session on specific complaints or charges against an employee, the employee must be given written notice of his or her right to have the complaints or charges heard in open session.  The notice must be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. Cal. Gov’t Code § 54957(b)(2).  This notice provision has been held not to apply to a closed session to consider or deliberate on whether complaints or charges brought against an employee justify dismissal or disciplinary action, but to meetings “to hear” – as in a proceeding where witnesses are heard and evidence presented – the complaints or charges against the employee.  Bollinger v. San Diego Civil Service Com., 71 Cal. App. 4th 568, 574-75, 84 Cal. Rptr. 2d 27 (1999) (closed session to consider whether to affirm demotion recommendation did not require notice to employee and thus action could not be nullified where prior public evidentiary hearing was afforded employee); Kolter v. Commission on Professional Competence of the Los Angeles Unified School Dist., 170 Cal. App. 4th 1346, 1352, 88 Cal. Rptr. 3d 620 (2009) (closed hearing to consider whether charges against employee justified initiation of dismissal proceedings did not trigger notice provision where employee was thereafter provided public evidentiary hearing on charges).  However, another court has held that a legislative body must give an employee notice and an opportunity for an open session before a meeting to discuss the findings of an arbitrator regarding the possible firing of the employee, even if no vote is taken at that discussion meeting, and the notice given for the subsequent "ceremonial" meeting where the legislative body voted to fire the employee did not satisfy the requirement or cure the previous violation. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, 107 Cal. App. 4th 860, 876-76, 132 Cal. Rptr. 2d 453 (2003); see also Moreno v. City of King, 127 Cal. App. 4th 17, 28-29, 25 Cal. Rptr. 3d 29 (2005)(receiving accusations against employee and considering whether to dismiss employee based on those allegations in closed session triggered notice requirements).