In Hofman Ranch v. Yuba County Local Agency Formation Commission, (— Cal.Rptr.3d —, Cal.App. 3 Dist., March 25, 2009), a California Court of Appeal considered whether it was lawful under the Ralph M. Brown Act (Act”) for a county’s Local Agency Formation Commission (“LAFCO”) to meet in closed session to evaluate the performance of a person with whom LAFCO had contracted to provide executive officer services. The court ruled that by virtue of the services the contractor performed, he was in fact LAFCO’s “executive officer,” and that the Act therefore permitted LAFCO to meet in closed session to evaluate his performance.
Facts
Yuba County LAFCO entered into a contract with John Benoit to provide “executive officer services.” In June 2006, LAFCO entered into a closed session for the purposes of conducting “an evaluation of the executive officer.” After the closed session, LAFCO voted in public to extend Benoit’s contract by one year.
Francis Hofman attended the LAFCO meeting and objected to the closed session, contending that because Benoit was an independent contractor, and not an employee, the Act did not allow LAFCO to discuss his performance in closed session. She filed suit (as Hofman Ranch, the name of a family trust), seeking to nullify the actions resulting from the closed session, and to ban on future closed sessions to evaluate the performances of contractors. The trial court denied the petition and Hofman appealed.
Decision
The Act permits local government bodies to convene a closed session to evaluate the performance of an employee, and it further defines “employee” to include “an officer or an independent contractor who functions as an officer.” As such, the issue before the court was whether Benoit, an independent contractor, had “functioned as an officer” of LAFCO. The court concluded that the record clearly demonstrated that Benoit had functioned as an officer.
The court reviewed the list of Benoit’s duties pursuant to his contract and the lengthy record of the services he performed reflected in LAFCO meeting minutes. “Taken together, these duties assigned to Benoit by agreement and his conduct in fulfilling them[,] satisfy the requirement that he performed the day-to-day business of the LAFCO,” the court said. As such, he was LAFCO’s executive officer and the closed session to evaluate his performance was proper.
Hofman’s argument that Benoit was not an employee because LAFCO did not exert direct day-to-day control over him was irrelevant under the law because Benoit did in fact “function as an officer” under the terms of the Act. Further, the fact that Benoit performed similar services for other small counties was also irrelevant because Benoit did nonetheless function as Yuba County’s LAFCO executive officer.
The court concluded that Benoit did function as Yuba LAFCO’s executive officer and the closed session to consider his performance was therefore proper. The trial court’s ruling was affirmed.
Questions
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