In Kolter v. Commission on Professional Competence of the Los Angeles Unified School District, (— Cal.Rptr.3d —, Cal.App. 2 Dist., Jan. 8, 2009), a California Court of Appeal considered whether a school district’s governing board violated the Ralph M. Brown Act (“Act”), when it convened in closed session to consider initiating dismissal proceedings against a teacher without providing the teacher 24 hours notice of her right to have the matter heard in open session.
Citing Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, the court found that the 24-hour notification requirement applied if a school board was formally “hearing” evidence, but it could convene in closed session to “consider” dismissing an employee without providing the required notice.
The governing board (“Board”) of the Los Angeles Unified School District (“District”) convened in a closed session on May 2, 2006 and initiated the process of dismissing certificated teacher Colleen Kolter. Kolter was not given notice of the session. Kolter exercised her right to request a hearing before the District’s Commission on Professional Competence (“Commission”). The Commission concluded that Kolter should be dismissed.
Kolter filed suit alleging that the Board violated the Act when it met in closed session to consider dismissing her without notifying her 24 hours in advance of her right to a public hearing, and that her dismissal was therefore void. The trial court denied her petition and Kolter appealed.
The Act generally requires that all meetings of a governing body must be open and public, but allows for exceptions, such as some discussions to “consider” the “dismissal” of personnel. The Act, in Government Code Section 54957, states:
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.
The court noted that the Bollinger court referred to the Legislature’s use of the word “hear” in connection with “complaints or charges,” but “consider” in connection with the dismissal of a public employee, and found the distinction significant. Citing Bollinger, the court agreed that pursuant to the language of the Act, it was permissible for the Board to “consider” the dismissal of Kolter in a closed session without providing her 24 hours notice to request an open meeting, but that such notice would be required if the Board were to more formally “hear” complaints against her.
“In this matter, the governing board did not conduct an evidentiary hearing on the verified statement of charges against Kolter,” the court said. “Rather, it considered whether those charges justified the initiation of dismissal proceedings.” The personnel exception to the Brown Act therefore applied to the Board’s action and the 24-hour written notice was not required. The judgment was affirmed.
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