City of Alameda + California
January 25, 2014
Re: City Council closed session of December 28, 2010
Dear
| recently received several letters regarding the City Council closed session on
December 28, 2010, including a letter from you. Each of the letters raises the question
whether the City complied with the Brown Act and City Charter in making the closed
session agenda, and deliberating and voting on the matters taken up during the closed
session. The answer is yes
The topic was addressed at the most recent City Council meeting on Jan. 18, 2011,
under a referral item by Counciimember Doug deHaan. In that meeting, it was
confirmed that the Council was advised on the wording for the agenda for December 28,
2010, by Meyers Nave, which specializes in municipal law. The Council also voted 5 - 0
at the beginning of the closed session to have Eddie Kreisberg of Meyers Nave advise
them during and following the closed session on issues related to the City's Charter
Officers. Reliance on outside counsel is the standard practice to the extent there is a
matter between the City Attorney and the City Council which would make it
inappropriate for the City Attorney to render advice. While | was not in attendance at
the closed session on Dec. 28, 2010, and did not observe the discussions, there has
been no indication of any discussion taking place that was inconsistent with the Brown
Act or any of the listed agenda items.
Iam able to address your concem whether, under the third agenda item regarding
public employee discipline/dismissal/release, the City must indicate what position is at
issue and whether there is more than one position at issue. The answer is no. The
Brown Act statute providing closed session agenda titles, Government Code Sec,
54954.5, does not require any more detail than what was listed for the third item. The
statute itself states that "no additional information is required." The reason the
legislature permits closed sessions on this topic is to minimize potential embarrassment
to the public employee who is the subject of the closed session, especially given that
Office of the City Anorney
2263 Santa Cinen Avenue, Room #280
‘Alameda, California 9430-44
“Tel 510.747.4750 + Fax 510.863.4028 + TDD 510.522.7538
Prin Rl PaperJanuary 25, 2011
Page 2
“no action” may be the decision of the governing body in the closed session. The
closed session title remains the same regardless of whether members of the community
would have wanted to know the identity of the employee, either to speak critically or in
support outside the closed session.
It has also been asserted that the Interim City Manager, Ann Marie Gallant, was entitled
to notice under the Brown Act a day ahead of time and the opportunity to have the
discussion occur in open session. This is not the case. The Brown Act statute, Gov't
Code Sec. 54957(b), requires notice only in the event that complaints or charges are
being brought against the employee by another person or employee. The courts have
confirmed the proper reading of the statute, including that the opportunity for public
session does not apply to one’s appointment, employment, performance evaluation,
discipline or dismissal, but only to complaints or charges. To do otherwise would have
this exception for specific complaints or charges overshadow the general rule that
personnel matters may be considered in closed session. Complaints or charges
amount to specific accusations of wrongdoing; however, the purpose of the closed
session on Dec. 28, 2010, was not to consider any specific complaint or charge lodged
by someone against a City employee. Accordingly, the exception in Gov't Code Sec.
54957(b)(2) to the general rule in Gov't Code Sec. 54967(b)(1) that personnel matters
are usually discussed in Closed session did not apply, and advance notice and the right
to an open hearing was not required under the Brown Act.
You have asked for comment on whether the City complied with City Charter Article 1,
Section 2, which bars Council from removing or suspending officers within 90 days of
the installation of a newly elected official. Here, the City has a limited term Interim City
Manager, and the Interim City Manager has a two-year contract that expires on March
31, 2011, unless the City and Interim City Manager mutually agree to extend it
Consistent with the terms of the contract, the City Council provided the Interim City
Manager with notice of nonrenewal of her contract, and placed her on paid
administrative leave. Her term as Interim City Manager has not been shortened from
that set forth in her contract, and she remains the Interim City Manager. And, placing
her on paid administrative leave, a common employment practice, is not a suspension
or removal as is contemplated by the Charter.
The City Attorney also was placed on paid administrative leave. No adverse
employment action has been taken against the City Attomey either. She has not been
separated from the City. She remains the Alameda City Attorney. Again, there is a
legal distinction between administrative leave and removalisuspension, and for that
reason, the Council's decision complied with the Charter.January 25, 2041
Page 3
‘Some of the letters | received asked whether the placement of a support staff person on
paid administrative leave constituted a violation of the City Charter. The answer is no.
The Acting City Manager made the decision and the Mayor communicated the decision
to the support staff person. The working title of the staff position indicates she provides
support not only to the City Manager, but also the Council and the Mayor. And, paid
administrative leave is not an unusual too! to use in the transition of an office.
Finally, a question was raised whether a community member received word of the
actions of the City Council of Dec. 28, 2010, well in advance of any official
announcement by the City. There was an official announcement by Mayor Gilmore
when the Council came out of closed session on December 28, 2010. The
announcement was available to all who were present in Council Chambers at the
conclusion of closed session and to anyone who subsequently made an inquiry. That is
standard practice for closed sessions. The City later issued a press release conceming
the December 28, 2010 closed session as well.
‘Thank you for contacting me with your concerns.
Very Truly Yours,
KN
Donna Mooney
Acting City Attorney