                            TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                  OFFICE OF THE ATTORNEY GENERAL


                                            State of California



                                              DANIEL E. LUNGREN


                                                Attorney General



                                ______________________________________

                     OPINION            :


                                        :          No. 95-207


                   of                   :


                                        :          July 25, 1995


          DANIEL E. LUNGREN             :


            Attorney General            :


                                        :


          GREGORY L. GONOT              :


         Deputy Attorney General        :


                                        :
______________________________________________________________________________


           THE HONORABLE THOMAS F. CASEY, COUNTY COUNSEL, COUNTY OF
SAN MATEO, has requested an opinion on the following question:

                When the members of a school district governing board discuss whether to employ a
probationary certificated employee for a third consecutive school year, may the employee require that
the discussion be held in public?

                                                   CONCLUSION

                 When the members of a school district governing board discuss whether to employ a
probationary certificated employee for a third consecutive school year, the employee may not require
that the discussion be held in public.

                                                      ANALYSIS

                 Education Code section 44929.21, subdivision (b)1 provides in part:

                 "Every employee of a school district of any type or class having an average
        daily attendance of 250 or more who, after having been employed by the district for two

   1
    All references to the Education Code prior to footnote 2 are by section number only.


                                                            1.                                    95-207

       complete consecutive school years in a position or positions requiring certification
       qualifications, is reelected for the next succeeding school year to a position requiring
       certification qualifications shall, at the commencement of the succeeding school year,
       be classified as and become a permanent employee of the district.

               "The governing board shall notify the employee, on or before March 15 of the
       employee's second complete consecutive school year of employment by the district in a
       position or positions requiring certification qualifications, of the decision to reelect or
       not reelect the employee for the next succeeding school year to the position. In the
       event that the governing board does not give notice pursuant to this section on or before
       March 15, the employee shall be deemed reelected for the next succeeding school
       year."

We are asked to determine whether the governing board of a school district may make its decision
whether to employ a probationary certificated employee for a third consecutive school year in a closed
session of the board without allowing the employee or members of the public to be present. We
conclude that the discussion may be held in closed session regardless of the employee's request that the
discussion be held in public.

               As recently observed in Cousins v. Weaverville Elementary School Dist. (1994) 24
Cal.App.4th 1846 with respect to the limited rights of probationary school employees:

                "The Education Code establishes two major classes of certificated school
       employees, permanent and probationary. (Ed. Code, ' 44929.21. . . .) Unlike
       probationary employees permanent employees enjoy tenure and may only be dismissed
       for cause. ('' 44955, 44932-44947.) A probationary employee enjoys less job
       security; although dismissal during the school year must be based on cause, a
       probationary teacher may be dismissed at the end of the school year by a simple notice
       of non-reelection. (' 44929.21.) In school districts with an average daily attendance
       of 250 or more a probationary employee becomes permanent upon the commencement
       of a third consecutive school year in a certificated position. (Ibid.)" (Id., at p. 1849;
       footnote omitted.)

Probationary teachers may be "non-reelected" without any showing of cause, without any statement of
reasons, and without any right of appeal or administrative redress. (Bellflower Education Assn. v.
Bellflower Unified School Dist. (1991) 228 Cal.App.3d 805, 808; Grimsley v. Board of Trustees (1987)
189 Cal.App.3d 1440, 1448 [interpreting former ' 44882, the language of which is now contained in
' 44929.21].) In addition to being subject to non-reelection for the next succeeding school year, first
and second year probationary employees may be dismissed during the school year for unsatisfactory
performance pursuant to provisions concerning the evaluation and assessment of performance of
certificated employees (' 44660, et seq.) or for cause pursuant to section 44932. Either of these
procedures requires a statement of reasons and notice to the employee of the opportunity to appeal the
matter before an administrative law judge. Special procedures apply to termination for budgetary or
financial reasons. (' 44955; see Cousins v. Weaverville Elementary School Dist., supra, 24
Cal.App.4th at 1854.)

                                                   2.                                                95-207

                 As found in McFarland Unified School Dist. v. Public Employment Relations Bd.
(1991) 220 Cal.App.3d 166, 169: "There is no question but that the final determination about rehiring
probationary teachers lies within the discretion of the governing board and that tenure can be denied for
any lawful reason regardless of the sufficiency of the cause." And as explained in Paramount Unified
School Dist. v. Teachers Assn. of Paramount (1994) 26 Cal.App.4th 1371, 1378: "Because
probationary teachers do not have a vested property interest in their positions, non-reelection does not
deprive them of property without due process of law and therefore they are not entitled to a hearing or
statement of reasons for their dismissal under the provisions of Education Code section 44929.21,
subdivision (b). . . ."

                Even though a non-reelection decision under the terms of section 44929.21 does not
constitute a "for cause" termination, we assume for purposes of this analysis that the members of a
board intend to discuss possible reasons for not employing a probationary certificated employee for a
third consecutive year. Under such circumstances must the discussion be held in public if the
employee so requests?

                To answer this question we turn to the open meeting requirements of the Ralph M.
Brown Act (Gov. Code, '' 54950-54962; hereafter "Act"). 2 The Act generally requires that all
meetings of "legislative bodies" of "local agencies," including school districts (' 54951), are to be open
to the public. Any closed session may only be conducted pursuant to statutory authorization.
(' 54962.)

                 One such statutory authorization is section 54957 which contains the so-called
"personnel exception" to the open meeting requirements of the Act. Section 54957 provides in
pertinent part as follows:

                 "Nothing contained in this chapter shall be construed to prevent the legislative
        body of a local agency . . . from holding closed sessions during a regular or special
        meeting to consider the appointment, employment, evaluation of performance,
        discipline, or dismissal of a public employee or to hear complaints or charges brought
        against the employee by another person or employee unless the employee requests a
        public session.

                "As a condition to holding a closed session on specific complaints or charges
        brought against an employee by another person or employee, the employee shall be
        given written notice of his or her right to have the complaints or charges heard in an
        open session rather than a closed session, which notice shall be delivered to the
        employee personally or by mail at least 24 hours before the time for holding the
        session. If notice is not given, any disciplinary or other action taken by the legislative
        body against the employee based on the specific complaints or charges in the closed
        session shall be null and void. . . ."

    2
     All references hereafter to the Government Code are by section number only.


                                                           3.                                        95-207

The underlying purposes of the "personnel exception" are (1) to permit free and candid discussion of
personnel matters by a local governmental body and (2) to protect the employee from public
embarrassment. (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955; 63
Ops.Cal.Atty.Gen. 153, 155 (1980); 61 Ops.Cal.Atty.Gen. 283, 291 (1978).) As an exception to the
open meeting requirements (' 54953), the "personnel exception" is to be narrowly construed. (San
Diego Union v. City Council, supra, 146 Cal.App.3d at 955.)

                There can be little doubt that considering whether to grant tenure to a probationary
employee is a matter within the scope of the personnel exception. That question concerns the duration
of the public employee's employment. A decision not to reelect is a form of "dismissal" (see Fontana
Teacher's Assn. v. Fontana Unified School Dist. (1988) 201 Cal.App.3d 1517, 1524), the consideration
of which may be undertaken in a closed session under the terms of section 54957.

                Moreover, any discussion of whether to grant tenure to a particular probationary
employee would obviously center upon an evaluation of the employee's performance.3 A certificated
employee's job performance is reflected in a written evaluation and assessment of performance which is
prepared for each such employee on a continuing basis, with probationary employees being evaluated at
least once each school year. (Ed. Code, '' 44662, 44663, 44664.)4 The evaluation is discussed with
the employee by the evaluator, and the employee has the right to prepare a written response to the
evaluation, with such response becoming a permanent attachment to the employee's personnel file.
(Ed. Code, ' 44663.) We assume that a probationary employee's evaluation and response, if any,
would be the basis for a board's decision to reelect or non-reelect the employee. Hence the discussion
concerning whether to grant tenure to the employee may be held in closed session under the terms of
section 54957 as the consideration of an "evaluation of performance."

                We reject the suggestion that a discussion of whether to employ a probationary
certificated employee for a third consecutive year would come within the "complaints or charges"
language of section 54957. In 61 Ops.Cal.Atty.Gen. 283, supra, we analyzed the "complaints or
charges" phrase prior to the statute's incorporation of the "evaluation of performance" language (Stats.
1982, ch. 298, ' 2) in determining whether an employee's job performance could be discussed without
allowing the discussion to be held in public. We concluded:

                  "It is therefore concluded that at a minimum, section 54957 contemplates that
         an executive session may be called to discuss specific complaints or specific charges
         against an employee before an employee may assert that he has a right to be informed
         of such matter and requests an open `hearing' or meeting. Such a conclusion at least
         strikes some reasonable balance between a local body's ability to regulate its personnel

    3
      As previously noted, termination for economic considerations is covered by Education Code section 44555,
subdivision (b).

    4
     Of course, a board need not find that the employee has performed unsatisfactorily in order to deny tenure. It may
simply decide that another candidate for the position is better qualified or has greater potential.


                                                         4.                                                  95-207

        matters and an employee's right to have adverse matters concerning his employment
        aired at a public meeting. Such a conclusion also appears to be more in harmony with
        the wording of section 54957 than a conclusion that not one critical word may be said
        of an employee without his having a right to prior notice thereof and the right to a
        public hearing on such statement. From this conclusion it follows that a general
        discussion of an employee's job performance may be held pursuant to section 54957
        without giving an employee prior notice thereof and an opportunity to demand that the
        discussion be held at an open hearing." (Id., at p. 291; fn. omitted.)

                 A school administrator might not be able to give the board a full and complete
assessment of a probationary employee's performance if any critical remark in the written evaluation
could result in a violation of the notification and open-session requirements of the Act. Moreover, the
March 15 deadline for making a non-reelection determination, with prior notification provided to the
employee, might not give the board sufficient time to act in such circumstances. The language of
section 54957 need not be read so broadly as to undermine the procedure envisioned by Education
Code section 44929.21.

                Excluding statutorily mandated performance evaluations and any discussions thereof
from the meaning of "complaints or charges" in section 54957 is consistent with the qualifying phrase:
"brought against the employee by another person or employee . . . ." Both "complaint" and "charge"
connote an accusation, something which is "brought against" an individual. Performance evaluations
conducted in the due course of district business are not in the nature of an accusation and are not
normally thought of as being "brought against the employee." This is particularly true when the
evaluation is used as a basis for determining whether to reelect a probationary employee.

                This interpretation of "complaints or charges," as those terms are used in section 54957,
also comports with the wide latitude afforded to school districts in deciding whether to reelect
probationary employees. "Under section 44929.21 . . . non-reelection of probationary teachers is
within the sole discretion of the school district. A probationary teacher may be timely non-reelected
without any cause whatsoever, without any statement of reasons, and without any hearing or appeal."
(Bellflower Education Assn. v. Bellflower Unified School Dist., supra, 228 Cal.App.3d at 811.)

                 In answer to the question presented, therefore, we conclude that absent special
circumstances, when the members of a school district governing board discuss whether to employ a
probationary certificated employee for a third consecutive school year, the employee may not require
that the discussion be held in public.

                                                *****




                                                   5.                                            95-207


