Authored Articles & Publications May 06, 2015

Pasadena Community College Ex-President’s $400,000 Severance Package Nullified Due to Brown Act Violations

By Victoria Hester

A nearly $400,000 severance deal struck between Pasadena Community College and its former president was nullified by a judge after determining that the deal was improperly discussed and finalized in closed session. A Los Angeles Superior Court judge found last week that the Board of Trustees violated the Brown Act. The Brown Act, California’s open meeting law, generally requires that meetings of legislative bodies be open to the public, and that at least 72 hours before a regular meeting, the legislative body post an agenda containing a brief description of each item to be discussed.

A nonprofit group, Californians Aware, filed the lawsuit against the College, claiming that the Board violated the Brown Act by finalizing the former president’s severance package in two closed sessions rather than in public meetings. The College claimed that a dispute with the former president had matured into potential litigation, and that the two closed sessions, held on July 22 and Aug. 6, qualified as “conferences with legal counsel regarding anticipated litigation,” and were therefore exempt from the Brown Act’s open meeting requirement.

The Brown Act allows a legislative body to hold a closed session to “confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” (Gov. Code § 54956.9(a).) Litigation is considered pending not only when a lawsuit has been formally initiated, but also when “based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.” (Gov. Code § 54956.9(d)(2).) The Brown Act requires that when the facts and circumstances that may give rise to litigation are known to the potential plaintiff, they must be disclosed on the agenda or publicly announced. (Gov. Code § 54956.9(e)(2).)

The facts and circumstances giving rise to the anticipated litigation were not included on the College’s agendas and were not publicly announced. Both closed session agenda items noted only that the sessions were closed due to conference with legal counsel regarding anticipation of litigation. The judge held that, although the severance package did qualify as a litigation settlement, because the College failed to announce or include on the agenda the facts and circumstances of the anticipated litigation, the College violated the Brown Act. The College and former president were given 90 days to “unwind” the agreement and revisit settlement negotiations, should they wish to do so, in compliance with the Brown Act.

Local agencies should remember that, although a legislative body may convene in closed session to discuss anticipated litigation with legal counsel, if the facts and circumstances of the litigation are known to a potential plaintiff, they must be disclosed on the agenda or publicly announced.

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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