The Anderson Fire Protection District may have scheduled a closed-session board meeting for Tuesday that violates the state’s open meeting laws, according to legal counsel for the California Newspaper Publishers Association (CNPA) and California First Amendment Coalition (CFAC).
The 6 p.m. meeting was initially announced by Chairman Keith Webster to invite captains, firefighters and volunteers to talk one at a time in closed session about what they would like in a new fire chief and where they see the department going.
Tuesday’s agenda has board members going into closed session to meet with fire district employees and volunteers to discuss the hiring of a fire chief. The resignation of former fire chief Joe Piccinini was announced July 7 following a board investigation into management practices.
"The Brown Act recognizes a number of distinct occasions when legislative bodies (such as fire protection district boards) may lawfully hold closed sessions. ... However, ... holding a closed session with individual firefighters, or even with the district’s fire chiefs, to discuss possible improvements to the district and ideal qualities in their search for firefighters is not one of them," CFAC general counsel Isela Castaneda of Holme Roberts & Owen LLP said Thursday.
The fire district’s legal counsel, Mike Fitzpatrick, reviewed the Ralph M. Brown Act and revised the scope of the upcoming closed-session discussion, though not in reaction to Castaneda’s statement.
"They (fire district personnel) can be called in one by one and interviewed, just as could candidates for the position itself, as long as the subject is restricted to the qualifications and issues they want the board to consider in making the appointment," Fitzpatrick said.
Jim Ewert, legal counsel for CNPA, offers a different opinion.
"While the Brown Act does recognize that there is a closed-session exemption that permits the board only to discuss an evaluation ... for hiring, that (exemption) does not extend to that discussion occurring with (many) people while the public is excluded," Ewert said Friday.
"If they (the board members) want to take comments without violating the Brown Act, they can ask (firefighters) to submit written comments and then take the written comments into closed session and legally discuss it among themselves. That way the Brown Act isn’t curtailing the valuable input that only those folks have...., but at the same time recognizing that the closed session exemption does not permit the process the board wants to enter into to do that."
Redding City Attorney Rick Duvernay last week concurred with Fitzpatrick’s assessment, adding that the board may bring to closed session anyone that assists them in making a decision.
They can bring in support staff to aid them, Ewert said, such as a secretary for transcription or a department head, but the employees, he said, are not support staff.
Ewert referred to a California Attorney General’s opinion in place since 1965, which he said states: "... Meetings could not be semi-closed. Thus certain interested members of the public may not be admitted to a closed session while the remainder of the public is excluded.... As a general rule, closed sessions may involve only the membership of the body in question plus any additional support staff which may be required.... Persons without an official role in the meeting should not be present."
When asked why firefighters could not be considered support staff for a board decision, Ewert said: "They are not staff of the fire board. They are employees of the district, and that’s the difference. In bringing in employees beyond just staff to the fire district board, they are operating a semi-closed meeting," Ewert said. "That is prohibited by article one, section three (of the California State Constitution).
In an e-mail Friday, Fitzpatrick cited two attorney general opinions that Ewert said would not provide for such closed-session discussion. Other than indicating the opinions, Fitzpatrick did not explain how the cases supported the fire district’s planned closed session.
In one case, Ewert said a county retirement board permitted an employee who applied for disability retirement and his or her representative to attend the closed session in which medical records were discussed.
In another case, Ewert said a city mayor was to attend a closed session meeting of a redevelopment agency when the purpose of closed session was to conduct a conference with agency property negotiators who were to negotiate development of property partly owned by the city. The attorney general decided the mayor could not attend the meeting.
What's Your Opinion: March 17, 2010
Scripps Interactive Newspapers Group
Comments » 2
HeardEnough writes:
the board should not ask for input from the fire personel regarding the hiring of a chief. i think they are still smarting from their last choice and are being a bit gunshy. perhaps an interview committee with ex-chief matheson or a chief from a surrounding district could assist in asking the technical questions necessary to make a proper choice.
southcounty1 writes:
I do think they should ask input from the personnel, and they really appreciate it. The choice of the last chief was obviously a huge mistake...although we find out now how he manipulated the referral sources in Okiehoma to get the job. His deception started VERY early.
You'd think the newspaper had bigger fish to fry than to question the board's aciton. Put your money into saving your declining newspaper!
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