Ralph M. Brown Act:
Closed Sessions for Consultation on Employee Negotiations
Return to main menu
Q: What closed sessions are allowed concerning negotiations
with employees?
Q: Is this type of closed session relevant only to bargaining
with unions?
Q: Is a closed session authorized whenever a body is
discussing salaries for individuals?
Q: How should employee negotiation sessions be listed on the
meeting agenda?
Q: If the body takes action in closed session, how and when
must it be disclosed?
Q: Do these rules apply to school district boards?
Q: What if any public records could be checked to shed light on
the topic of a closed session?
Q: What closed sessions are allowed concerning negotiations with
employees?
A: A body may used a closed session to consult with its own agent on the progress of
negotiations with an employee bargaining unit or even with individual managerial,
confidential or other "unrepresented" employees, concerning wages or other
compensation, or (in the case of an organized employee unit) issues which must under state
law be submitted to collective bargaining. The Act states:
Government Code § 54957.6. (a) Notwithstanding any other provision of law, a
legislative body of a local agency may hold closed sessions with the local agency's
designated representatives regarding the salaries, salary schedules, or compensation paid
in the form of fringe benefits of its represented and unrepresented employees, and, for
represented employees, any other matter within the statutorily-provided scope of
representation. Closed sessions of a legislative body of a local agency, as permitted in
this section, shall be for the purpose of reviewing its position and instructing the local
agency's designated representatives. Closed sessions, as permitted in this section, may
take place prior to and during consultations and discussions with representatives of
employee organizations and unrepresented employees.
Closed sessions with the local agency's designated representative regarding the
salaries, salary schedules, or compensation paid in the form of fringe benefits may
include discussion of an agency's available funds and funding priorities, but only insofar
as these discussions relate to providing instructions to the local agency's designated
representative.
Closed sessions held pursuant to this section shall not include final action on the
proposed compensation of one or more unrepresented employees.
For the purposes enumerated in this section, a legislative body of a local agency may
also meet with a state conciliator who has intervened in the proceedings.
(b) For the purposes of this section, the term "employee" shall include an
officer or an independent contractor who functions as an officer or an employee, but shall
not include any elected official, member of a legislative body, or other independent
contractors.
Back to top
Q: Is this type of closed session relevant only to negotiations
with unions?
A. No. There are really two somewhat different situations covered by this section.
- One is the conference with he body's bargaining agent who is negotiating with an
organized employee unit -- a union or association. In this situation the body not only may
review its position and provide instructions to the negotiator, but may actually vote in
closed session to approve a final package including compensation elements. The vote and
the contents of the package, as noted below, need not be disclosed until the union has
ratified its acceptance.
- The other situation is when the bargaining is with one or more non-union individual
employees -- typically top management or administration. In such cases the agency's
"representative" may actually be a member of the body itself.
Back to top
Q: Is a closed session authorized whenever a body is discussing
salaries for individuals?
A: No. It is essential to recognize three limitations:
Back to top
Q: How should employee negotiation sessions be listed on the
meeting agenda?
A: The Brown Act provides, in Government Code Section 54954.5:
For purposes of describing closed session items pursuant to Section 54954.2, the agenda
may describe closed sessions as provided below. No legislative body or elected official
shall be in violation of Section 54954.2 if the closed session items were described in
substantial compliance with this section. Substantial compliance is satisfied by including
the information provided below, irrespective of its format.
(f) With respect to every item of business to be discussed in closed session pursuant
to Government Code Section 54957.6:
CONFERENCE WITH LABOR NEGOTIATOR
Agency negotiator: (Specify name)
Employee organization: (Specify name of organization representing employee)
or
Unrepresented employee: (Specify position title of unrepresented employee who is the
subject of the negotiations)
Back to top
Q: If the body takes action in closed session, how and when must
it be disclosed?
A: First, recall that a body may not take action in closed session on individual
employee salaries -- that must be done in open session. As for negotiations with organized
employee groups, the Brown Act states in Government Code Section 54957.1:
(a) The legislative body of any local agency shall publicly report any action taken in
closed session and the vote or abstention of every member present thereon, as follows:
(6) Approval of an agreement concluding labor negotiations pursuant to Section 54957.6
shall be reported after the agreement is final and has been accepted or ratified by the
other party. The report shall identify the item approved and the other party or parties to
the negotiation.
Back to top
Q: Do these rules apply to school district boards?
A: School districts are subject to a different union bargaining law than other local
agencies. The Rodda Act provides school boards with more flexibility in how they meet and
confer -- even allowing them to negotiate directly, outside the Brown Act, with the
employee organizations -- but provides its own special controls to assure that the public
is kept informed of the issues under discussion and allowed to express its views in timely
fashion. As provided in the Education Code:
Section 3549.1. All the proceedings set forth in subdivisions (a) to (d), inclusive,
shall be exempt from the provisions of ... the Ralph M. Brown Act ... unless the parties
mutually agree otherwise:
(a) Any meeting and negotiating discussion between a public school employer and a
recognized or certified employee organization.
(b) Any meeting of a mediator with either party or both parties to the meeting and
negotiating process.
(c) Any hearing, meeting, or investigation conducted by a factfinder or arbitrator.
(d) Any executive session of the public school employer or between the public school
employer and its designated representative for the purpose of discussing its position
regarding any matter within the scope of representation and instructing its designated
representatives.
Section 3547. (a) All initial proposals of exclusive representatives and of public
school employers, which relate to matters within the scope of representation, shall be
presented at a public meeting of the public school employer and thereafter shall be public
records.
(b) Meeting and negotiating shall not take place on any proposal until a reasonable
time has elapsed after the submission of the proposal to enable the public to become
informed and the public has the opportunity to express itself regarding the proposal at a
meeting of the school employer.
(c) After the public has had the opportunity to express itself, the public school
employer shall, at a meeting which is open to the public, adopt its initial proposal.
(d) New subjects of meeting and negotiating arising after the presentation of initial
proposals shall be made public within 24 hours. If a vote is taken on such subject by the
public school employer, the vote thereon by each member voting shall also be made public
within 24 hours.
(e) The board may adopt regulations for the purpose of implementing this section, which
are consistent with the intent of the section; namely that the public be informed of the
issues that are being negotiated upon and have full opportunity to express their views on
the issues to the public school employer, and to know of the positions of their elected
representatives.
Section 3547.5. Before a public school employer enters into a written agreement with an
exclusive representative covering matters within the scope of representation, the major
provisions of the agreement, including, but not limited to, the costs that would be
incurred by the public school employer under the agreement for the current and subsequent
fiscal years, shall be disclosed at a public meeting of the public school employer in a
format established for this purpose by the Superintendent of Public Instruction.
Back to top
Q: What if any public records could be checked to shed light on
the topic of a closed session?
A: While the minutes of closed sessions are exempt from disclosure under the California
Public Records Act (CPRA), there are certain records related to employee negotiation
sessions that are not.
- Individual Compensation Increases With respect to bargaining with individual
unrepresented employees, there is no CPRA exemption that would apply to records indicating
the compensation changes sought by the employee, and once a pay or benefit enhancement has
been granted (in open session, as it must be), the changes can be determined by reference
to the adjusted employment contract, which under CPRA is a public record.
- Initial Proposals for School Bargaining As for school employee negotiations, as
indicated above, the Rodda Act requires that both the initial proposals sought and the
proposed final agreement and its costs implications be presented in a public meeting as a
basis for community reaction. Any documents summarized in these presentations would be
public records.
- Agreements Approved in Closed Session The text of any agreement with an employee
organization or an individual staff member that is approved in closed session by the body
becomes a public record once accepted by the other party.
Back to top
