Privacy Issues in the Community College Workplace

The Kolter court found that the Legislature used the verb “hear” in connection with “complaints or charges,” but the verb “consider” in connection with “dismissal of a public employee.” 301 The word choice is significant. To “consider” is to deliberate upon, while to “hear” is to listen to in an official capacity. A “hearing” is a formal, official proceeding, usually open to the public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented. 302

LCW Practice Advisor

 The Kolter case holds that 24 hours notice is not required before the legislative body decides to initiate discipline against an employee. A cautious and conservative approach is to continue to provide 24 hours notice until the exact boundaries of the Kolter decision are litigated in the coming years.  The Kolter decision turned on the fact that the board's action in closed session was not the final decision. If your legislative body’s consideration of discipline is the agency’s final decision, 24 hours notice is still required.

Furtado v. Sierra Community College The California Court of Appeal held that negative performance evaluations do not constitute “complaints or charges” against an employee pursuant to Government Code § 54957 of the Brown Act. 303 Arguably then, a public employer may consider in closed session whether to retain an employee based on evaluations despite the employee’s request to respond in open session. However, be careful in light of more recent Court of Appeal decisions, e.g. Morrison v. HACLA, infra and Moreno v. City of King City, infra . Fischer v. Los Angeles Unified School District The California Court of Appeal held that the evaluation of the performance of probationary teachers does not constitute the bringing of “specific complaints or charges,” and, therefore, the teachers are not entitled to notice nor have the right to request an open session of the school board meeting in which the decision to re-elect or not re-elect the teachers will be made. 304 Bollinger v. San Diego Civil Service Commission A civil service commission’s closed session hearing to discuss appropriate discipline for employee misconduct (including possible demotion) did not violate the employee’s Brown Act right to an open, public hearing. 305 Be Cautious!

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 97