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CITY COUNCIL AGENDA REPORT
City of Anaheim
OFFICE OF CITY ATTORNEY
DATE: NOVEMBER 1, 2022
FROM: OFFICE OF THE CITY ATTORNEY
SUBJECT: LABOR NEGOTIATIONS IN PUBLIC
ATTACHMENT (Y/N): NO ITEM # 14
RECOMMENDATION:
Receive a report on the legality of negotiating collective bargaining agreements in public.
BACKGROUND:
At the October 25, 2022 Council meeting, Councilmember Moreno agendized for discussion the following question: does the City of Anaheim have the legal ability to negotiate in public the Anaheim Police Association and the Anaheim Firefighters Association collective bargaining agreements? In agendizing this item, Councilmember Moreno referenced a similar discussion occurring at the City of Santa Ana.
DISCUSSION:
The Brown Act provides that “[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided…” 1 Under the Brown Act, some subject matters can be discussed in closed session, including some aspects of labor negotiations. Specifically, “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…” 2 Closed session discussions under this provision are “for the purpose of reviewing [the local legislative body’s] position and instructing the local agency's designated representatives.”3 Although the Brown Act allows such discussions by Council to take place in closed session, the law does not require that closed session be utilized for that purpose. The Council is permitted to provide direction to its negotiators in open session as well, even though that approach would be ill-advised in that the City would be disclosing its 1 Cal. Gov’t Code §54953(a)
2 Cal. Gov’t Code §54957.6
3 Id.
Labor Negotiations in Public
November 1, 2022
bargaining strategy not only to the public generally, but also specifically to the subject labor organization.
Discussions properly held in closed session are confidential. No person may disclose confidential information that has been acquired by being present in a closed session to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.4 Having said that, there is always a risk that unauthorized disclosures of closed session discussions could be leaked, either intentionally (which could potentially lead to criminal charges) or unintentionally.
To address the issue of labor organizations somehow learning about closed session discussions, Councilmember Moreno has raised the possibility of negotiating with certain bargaining units in public, presumably either with the Council directly during open session, or otherwise. As long as all parties agree to that type of public negotiating process, the law would not prohibit it.
However, whether the City can unilaterally compel public bargaining is questionable at best. As early as 1978, the Public Employment Relations Board (PERB) held that, in the context of public school negotiations, one party cannot unilaterally insist that negotiating sessions be open to the public.5 In 2020, the Washington Court of Appeals came to a similar conclusion, finding that a County committed an unfair labor practice by passing a resolution requiring all collective bargaining to be conducted in public.6 Perhaps another way to address the concern of unauthorized closed session leaks is by convening a closed session simultaneous with collective bargaining sessions, although we are not aware of this ever having been done. As provided in the Brown Act, closed sessions to provide direction to the local agency's designated representatives “may take place prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees.”7
IMPACT ON BUDGET:
This discussion item, for information only, will have no impact on the budget.
Respectfully submitted,
Robert Fabela
City Attorney
4 Cal. Gov’t Code §54963.
5 Ross School District Teachers Ass’n v. Ross School District Board of Trustees, PERB Decision No. 48 (2/21/78).
6 Lincoln County v. Public Employment Relations Commission, 15 Wash.App.2d 143 (2020). 7 Cal. Gov’t Code §54957.6