The "Secret" Exemption to the Brown Act Enjoyed by California K-12 School and Community College Districts

School district administrators aren’t used to “thanking” Sacramento too often, given the annual slew of additional mandates and reduced funding from the Legislature. When the “Rodda Act,” the set of laws that provides for collective bargaining by school district employees in California, was enacted in 1975, however, the Legislature provided a little known exemption from the normal requirements of the Brown Act relating expressly to negotiations.

Specifically, Government Code section 3549.1 provides that the following activities are completely exempt from the Brown Act:

  1. Any meeting and negotiating discussion between a public school employer and a recognized employee organization.
  2. Any meeting of a mediator with either party or both parties to the meeting and negotiating process.
  3. Any hearing, meeting, or investigation conducted by a fact-finder or arbitrator.
  4. 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.

Consider the following two scenarios:

Scenario # 1: It is almost midnight on Monday, March 10th, and you, in your role as Superintendent, have been in negotiations all day with representatives of the school districts’ certificated union. You have a Board meeting scheduled in less than two days, at 6 pm on March 12th. The school district has been attempting to negotiate five furlough days for the coming year that would result in a corresponding reduction in teacher salaries making it possible for the District to maintain its existing class size reduction program and thus avoid the pending layoff of thirty (30) teachers at the upcoming Board meeting. At each Board meeting during the past two months, where you have met with your Board in closed session to discuss negotiations, the certificated union has packed the meeting with teachers dressed in black, waving signs, and taking two hours of public comment time at the beginning of the meeting to bash the District for seeking furlough days and proposing to layoff teachers. If you have to wait until March 12th to meet with your Board again at the beginning of the meeting, you are sure that the union will keep the pressure up by engaging in this same conduct again.

Scenario # 2: You have been in mediation with your classified union, and this is the third day of mediation. The mediator has put together a “mediator’s proposal” that you think that the District can live with, but you don’t want to call and post a special Board meeting just to wait and discuss the proposed deal.

In both cases, the above-referenced exemption from the Brown Act allows you to either conduct a phone poll of all the Board members to determine if there is sufficient support for the proposal, or even to contact the entire Board and ask them to come down to your office immediately to discuss the proposed mediated settlement proposal with the mediator, without even posting an agenda or otherwise calling a Board meeting.

This Brown Act exemption is one that is exclusive to school employers in California; it is not available to other public employers such as cities, counties, or special districts. It provides school and community college districts with an incredible degree of flexibility in dealing with sensitive negotiations without subjecting themselves to public scrutiny, or worse a riotous Board meeting.

One caution we offer, however, is to not overuse this exemption. For instance, this exemption makes it possible to never even schedule a closed session “negotiations” session with your Board; you could just schedule un-agendized meetings or phone conferences. We don’t recommend this practice though, because it will invite public or union allegations of a Brown Act violation, even though it isn’t because of this exemption. In our experience, the allegation of a Brown Act allegation puts the Board on the defensive and will leave a negative impression with the general public even though the district can “lawyer” its way out of the allegation by explaining the Rodda Act exemption. This exemption should instead be treated as an “ace in the sleeve” which can be pulled out when necessary in order to legally immediately address negotiation issues with the Board when necessary.

Categories: Labor/Employment

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