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July 30, 2018, Council Agenda Comments - Jim Mosher Page 2 of 4 <br />employee in closed session pursuant to Section 54957 shall be reported at the public <br />meeting during which the closed session is held." <br />And "action taken" is broadly defined by Section 54952.6 as meaning "a collective decision <br />made by a majority of the members of a legislative body, a collective commitment or promise <br />by a majority of the members of a legislative body to make a positive or a negative decision, or <br />an actual vote by a majority of the members of a legislative body when sitting as a body or <br />entity, upon a motion, proposal, resolution, order or ordinance." <br />Moreover, Section 54953(c)(2) requires that the council "shall publicly report any action <br />taken and the vote or abstention on that action of each member present for the action." <br />In other words, any result agreed to by the Council as a result of the allowed private discussion <br />of matters related to the stated employment matters must be reported at the end of the meeting <br />at which the agreement is reached. <br />If a decision is made to narrow the field of candidates, the public is entitled to know that decision <br />was made, and by whom. If a decision was made to select three finalists, the public should <br />know who the finalists are and who voted to select them. And most importantly, if a decision is <br />made to offer employment to one of the finalists, the public is most certainly entitled to know <br />who that offer was made to, and which Council members voted for and against the decision. It <br />is the public's constitutional right. <br />The contrary idea -- that an "appointment" has not been made until some later date when an <br />employment contract has been approved -- is flawed for multiple reasons. <br />Among them, Government Code Section 54953(c)(3) and Section 54957.6(a) both require final <br />action on contracts affecting executive compensation to be taken in open session. It would <br />make no sense for the Brown Act to require a report to be given at the end of a closed session <br />on actions taken in private regarding appointments if such actions require an m contract and <br />therefore are not allowed in closed session. <br />More logically, the decision to appoint happens and is reportable as soon as a majority of the <br />Council settles on a pick. The possibility that the subsequent contract negotiations could fall <br />through is simply a fact of life irrelevant to whether an appointment decision has been made: <br />any contract could fail at any time. <br />If the City Attorney still wants to assert a decision to offer an appointment is not an <br />"appointment" as long as it remains contingent on some subsequent act (such as the signing of <br />an employment contract), then I would assert he would be confusing it with the reporting <br />requirements for agreements settling lawsuits, which indeed don't have to be reported until both <br />parties agree. Unfortunately for the City Attorney, there is no such language, no such savings <br />clause, in the reporting requirements related to closed session personnel decisions. <br />As a result of all the above, I firmly believe that, irrespective of any confidentiality agreements, <br />the public has a constitutional right to know of any decisions reached by the Council in <br />closed session on July 30 and what the vote was on those decisions. <br />