Are Academic Senates Brown Act Bodies? The Case that Settled the Question

Former ASCCC President 2014-2016

In recent months, the Academic Senate for California Community Colleges has received inquiries and has been made aware of several situations in which entities at local colleges have questioned whether the academic senate is bound to operate under the Ralph M. Brown Open Meetings Act. This question was a matter of frequent debate up until roughly twenty years ago, when the court case of Callahan vs. Academic Senate of Long Beach City College gave a legal determination on the issue. Because so much time has passed since this court decision, and due to the questions that have recently re-emerged on campuses, a reminder of the events that took place and the court’s decision may be useful to local senates. [1]

The Background: Accusations of Brown Act Violations

The problems at Long Beach City College (LBCC) began with conflicts between the faculty—both academic senate and faculty union—and the college’s vice president of academic affairs, Mary Callahan. Callahan was a long-time member of the LBCC community, having served as a nursing faculty member, department chair, and dean prior to becoming vice president. Faculty complaints regarding Callahan involved lack of consultation in scheduling and reorganization of academic departments as well as other failures to work with the academic senate regarding academic and professional matters and various contract violations.

In the spring of 2003, after having worked with Callahan for over a year in attempts to resolve these issues, the academic senate began a process of considering a vote of no confidence. Because several of the senators did not wish to inflict unnecessary embarrassment on Callahan through public discussion of the issues, as she had past connections to many faculty members through her years at the college, the academic senate held several closed-session meetings to establish its process and to debate the merits of a possible no confidence vote. The senate’s rationale behind the closed sessions was that the Brown Act allows closed sessions in order to consider personnel evaluation issues, and, because the senate participated in the evaluation of the vice president, the senate had a formal personnel interest in her evaluation. Thus, while the question of whether academic senates fell under the Brown Act was still debatable, the LBCC academic senate felt that even if it were bound by the Brown Act, a closed session would be justified.

Over the summer of 2003, the academic senate and the faculty union at LBCC developed a document of approximately thirteen pages delineating in detail the various violations of both consultation and contract committed by Callahan and circulated that document to all faculty at the college. In the fall of 2003, the LBCC faculty union passed a no confidence vote in Callahan. Then, on September 19, 2003, the academic senate considered its own vote of no confidence.

The senate meeting was a fiasco. The entire LBCC Administrators Association attended to support Callahan, arriving in force as a group several minutes after the meeting was called to order. Several non-senator faculty members also attended and spoke in favor of the vote. As the senate moved toward the taking of the vote, attorneys for Callahan and the district, as well as the college’s vice-president of human resources, began to shout over Academic Senate President Janice Tomson, insisting that they be heard in spite of the fact that they had arrived late and had not filled out the cards required for guest speakers, and they refused to allow the meeting to proceed. As the disruptions continued, the senate members adjourned as a group to a separate room in recess, hoping that a break could relieve the tension. However, the interruptions and shouting began again when the senators returned to the meeting room, and ultimately the police were called to remove Callahan’s attorney. After a stressful period of open debate among the senators themselves, the vote of no confidence was taken by secret, written ballot. The final vote was twenty-seven in favor, four against, and one abstention.

Roughly two months later, in November 2003, Callahan filed a lawsuit against the academic senate, accusing the senate of Brown Act violations for both the closed sessions and the secret ballot taken for the vote of no confidence. The suit named President Janice Tomson and included all other senators as John Does. It sought both injunctive relief to prevent the academic senate from repeating actions that, according to Callahan, were in violation of the Brown Act as well as declaratory relief to force the rescinding of the no confidence vote.  Ultimately, Callahan also requested $68,967 for attorney fees with a 1.5 times multiplier for a total of $103,450.50, claiming that the multiplier was justified because the suit had benefited the public.

The LBCC Academic Senate was represented without cost in the suit by Wendy Gabriella, a practicing attorney but also a member of the faculty at Irvine Valley College. At Gabriella’s urging, the senate convened on March 24, 2004 to correct its previous action. Once again, multiple members of the LBCC administration were present, including Callahan herself. In open session, the senate voted to formally rescind the previous vote of no confidence that was taken by secret ballot in September and then voted on another no confidence motion against Callahan by show of hands. Interestingly, while in September four senators voted against the no confidence motion and one abstained, the second vote passed with only one senator in opposition.

The Court’s Decision

Because of the action of March 24 to rescind and re-take the vote in open session, the court dismissed the declaratory portion of Callahan’s lawsuit, noting that the violation was cured by that action. The court also removed President Tomson’s name from the suit, dismissing Callahan’s claim of individual misconduct as improper in a Brown Act suit.

However, the court did grant a permanent injunction against the academic senate, ordering that the senate must have an attorney present when going into closed session to discuss anticipated litigation, must not to use the Brown Act’s exception on evaluation of employee performance to go into closed session for the purpose of discussing an administrator of the college, and must provide the required 24-hour notice to any person when discussing specific complaints about that person. The court clarified that a body can only consider a person to be an employee of that body, and thus invoke the Brown Act closed session exception for evaluation, if the body has the power to hire and fire that individual.

Regarding Callahan’s request for attorney fees, the court denied the 1.5 times multiplier and cut the amount of the award in half, to approximately $34,000, noting that the 310 hours billed to Callahan by her attorneys was excessive. Fortunately for the LBCC academic senate, the senate leadership had maintained a positive relationship with the college president throughout this experience. The college president had remained essentially uninvolved and impartial regarding the lawsuit, but when the invoice for the attorney fees arrived, the senate president sought the advice of the college president, noting that the LBCC senate, like most academic senates, had no resources to pay a $34,000 bill. The college president stated simply, “I’ll take care of it,” and the senate was not troubled with the matter again.

The Significance of the Decision

Callahan appealed the court’s decision regarding the dismissal of the declaratory relief and the amount of the monetary award. The court of appeals upheld the trial court’s decision. However, the decision of the appeals court also contained the following language:

Initially, we note that the trial court must have concluded that the Brown Act applied, both in terms of the Academic Senate qualifying as a "legislative body" under section 54952, and the meetings in question falling within the definition of meetings set forth in section 54952.2.

This statement by the appeals court, based on the decision of the trial court, makes very clear that the academic senate was found to be a Brown Act body and subject to all provisions of the Brown Act. In simple terms, the LBCC academic senate was ordered by the court to hold all votes by open ballot and to avoid closed sessions unless it was discussing pending litigation that involved the senate, in which case an attorney must be present.

In the twenty years since the case of Callahan vs. Academic Senate of Long Beach City College took place, the world has changed in many ways, and thus some aspects of the Brown Act were altered either temporarily or permanently. However, the question of whether academic senates are bound by the Brown Act has not been challenged in court since this case, and thus local senates must continue to consider themselves subject to the provisions of the Brown Act.

1. A large portion of the information in this article comes from the author’s own experience, as he was a member of the leadership of the Long Beach City College Academic Senate during this time period and became president of the LBCC Academic Senate in 2006, near the end of the case. Further documentation on the case see the article web page or [PDF].