In Travis v. Board of Trustees of the California State University, (— Cal.Rptr.3d —, 2008 WL 787266, Cal.App. 2 Dist., March 26, 2008), a California Court of Appeal considered whether the California State University (“University”) Board of Trustees (“Board”) violated the state’s open meeting law when it met in closed session to discuss a former chancellor’s decision to return to the University from a years-long leave of absence.
The court ruled that the Bagley-Keene Open Meeting Act’s (“Open Meeting Act”) exemption for personnel matters applied and affirmed a lower court ruling that the Board’s closed session was therefore legal.
Facts
Barry Munitz served as the University’s chancellor from 1991 to 1998, when he resigned to become president of the J. Paul Getty Trust (“Trust”). Under the terms of his employment with the University, Munitz had earned the right to a tenured professorship. During his years at the Trust, Munitz exercised his right to a professorship, but took a series of unpaid leaves of absences from that position. His tenure at the Trust was controversial and Munitz resigned amid criticism in 2006. He then notified current chancellor Charles Reed of his decision to exercise his right to return to the University as a professor. Acknowledging that Munitz’ return could be controversial, Reed scheduled a discussion of the matter as a closed session item at a Board meeting.
John Travis, President of the California Faculty Association, filed suit against the Board and other University officials alleging violation of the Open Meeting Act and requesting disclosure of the discussion that occurred in closed session. The trial court ruled that the Open Meeting Act’s exemption for personnel matters applied and entered judgment for the Board. Travis appealed.
Decision
The Open Meeting Act requires that state agencies conduct all business in public and openly, but allows for closed sessions “to consider the appointment, employment, evaluation of performance, or dismissal of a public employee or to hear complaints or charges brought against the public employee by another person or employee unless the employee requests a public hearing.”
At issue here is whether the board’s closed session discussion about Munitz’s return from leave of absence was proper under the Bagley-Keene Act’s so-called personnel exemption. The court rejected Travis’ contention that the personnel exemption applies only when the Board takes specific employment-related actions, rather than for general discussions of personnel matters, as occurred in this case, since Munitz’ right to his professorship was vested and not subject to Board action. But if the Legislature had so intended, the court reasoned, it could have expressly stated that closed sessions were proper specifically for a “decision to employ” someone, rather than to “consider” employment matters.
Prior case law and Attorney General opinions on the matter, while not conclusive, the court noted, pointed toward a more flexible interpretation of employment when it is consistent with the purposes of the Open Meeting Act. Such was the case here, the court determined. A return from a leave of absence, even when controversial, shares a kinship with an initial hiring decision.
As the personnel exemption’s purpose is to shield employees from undue publicity and embarrassment, the court said it found little gain for public interest in making public a discussion of an employee’s return from a leave of absence. It was reasonable, therefore, for the trial court to rule that the discussion of Munitz’ return fell within the purview of the Open Meeting Act’s personnel exemption. The trial court ruling was affirmed.