APPEAL from a judgment of the Superior Court of Yuba County, John J. Golden, Judge. (Retired Judge of the Lake County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super. Ct. No. CVPT060000487).
The opinion of the court was delivered by: Robie, J.
CERTIFIED FOR PUBLICATION
The Ralph M. Brown Act (Brown Act) (Gov. Code,*fn1 § 54950.5 et seq.) requires "[a]ll meetings of the legislative body of a local agency [to] be open and public . . . except as otherwise provided in this chapter." (§ 54953.) The chapter provides for closed sessions "to consider the . . . evaluation of performance . . . of a public employee." (§ 54957, subd. (b)(1).) In this context, "employee" includes "an officer or an independent contractor who functions as an officer or an employee but [does] not include any elected official, member of a legislative body or other independent contractors." (Id., subd. (b)(4).)
In this case, the Yuba County Local Agency Formation Commission (Yuba LAFCO) and its five commissioners (collectively defendants) held a closed session to evaluate the performance of John Benoit, with whom Yuba LAFCO contracted to provide "executive officer services." Frances Hofman, a member of the public, who is one of the plaintiffs here, unsuccessfully objected to the closed session. After the closed session, the commissioners publically voted to extend Benoit‟s contract by one year.
In response, Frances Hofman, her partner in a family trust, Emma Hofman, and Hofman Ranch (collectively the Hofman plaintiffs) filed a petition for writ of mandate to "enforce" the Brown Act. They requested setting aside all action taken in the closed session and enjoining all future closed session evaluations of "independent contractors" such as Benoit. The trial court denied the petition, and the Hofman plaintiffs appeal.
The dispositive question on appeal is whether defendants violated the Brown Act by conducting a closed session evaluation of Benoit. The answer turns on whether Benoit was Yuba LAFCO‟s executive officer. Finding he was, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 11, 2006, Yuba LAFCO "[a]ccepted the proposal" of Benoit for a "[p]ublic [e]mployee [a]ppointment" as the "[e]xecutive [o]fficer." The proposal was memorialized in an agreement for "[e]xecutive [o]fficer services" between Yuba LAFCO and Benoit, who was identified as "contractor."
Attachment A to the agreement defined Benoit‟s duties as follows: (a) "[p]rocess applications for city and district changes of organization"; (b) "[w]ork with the cities, districts, Yuba County, developers, and members of the public on LAFCO related issues"; (c) "[p]repare notices, agendas, filings, minutes, agreements, and reports consistent with the requirements of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000" (§ 56000 et seq.); (d) "[f]acilitate workshops and attend meetings as needed to address community concerns"; (e) "[p]repare Municipal Service Reviews and Sphere of Influence updates"; (f) "[p]repare the necessary CEQA documents"; (g) [p]repare and manage LAFCO‟s budget; (h) "[r]review local projects of concern and prepare response for the Commission"; (i) "[s]upervise support staff and coordinate with counsel"; (j) "[r]epresent Yuba County LAFCO at CALAFCO"; (k) "[m]ake provisions for a presence in Yuba County"; and (l) "[o]ther duties as assigned or directed by the Commission." Attachment D of the agreement specified the "general provisions" as including the following: "[a]ll acts of CONTRACTOR shall be performed as an independent contractor and not as an agent, officer or employee of LAFCO" and "CONTRACTOR is not subject to the direction and control of LAFCO except as to the final result contracted for under this Agreement."
The minutes for Yuba LAFCO‟s meetings reflect that Benoit performed the following functions from February 8, 2006, to June 14, 2006: he attended all Yuba LAFCO meetings, where he was identified as the executive officer; he prepared the minutes of those meetings and kept track of meeting dates; he answered questions from the public and the commission during Yuba LAFCO meetings; he presented and made recommendations on requests for waivers of filing fees regarding annexations; he kept track of written protests for annexations; he prepared and presented staff reports to the commissioners containing recommendations on adopting resolutions dealing with sphere of influence amendments and subdivision annexations; he presented to the commissioners amendments to resolutions; he educated the commissioners about special districts; he reviewed resolutions to adopt guidelines for municipal service reviews and spheres of influence; he was responsible for negotiating with the City of Marysville for the city‟s portion of the Yuba LAFCO budget; he presented a staff report recommending the commission approve a resolution adopting the draft budget and answered questions from the commissioners about it; and he requested authorization for staff to attend the "CALAFCO" conference and "CEQA" workshop.
Correspondence between Benoit and local government agencies between February 2006 and April 2006 reflect that Benoit performed the following functions: he notified local governmental agencies when their applications for amendments and annexations had been received and whether those applications were incomplete; he received notices from local governmental agencies regarding sphere of influence annexation maps; he published notice of hearings for proposed sphere of influence amendments; he coordinated with Yuba LAFCO counsel for receipt of necessary documents for annexation projects; he made recommendations to Yuba LAFCO regarding approving amendments to the sphere of influence for certain cities; and he prepared "CEQA" compliance documents.
On June 14, 2006, Yuba LAFCO held a regular meeting attended by the commissioners, Benoit, and members of the public. Over objection from Frances Hofman, the commissioners "entered into closed session" for one and one-half hours to conduct "an evaluation of the Executive Officer." After the closed session, the commissioners publically voted to extend Benoit‟s contract by one year.
In response, the Hofman plaintiffs filed a petition for writ of mandate to "enforce" the Brown Act, contending defendants "violated the Brown Act by going into closed session at a public hearing to evaluate the performance of an independent contractor . . . ." The Hofman plaintiffs sought to "set aside LAFCO‟s closed session action*fn2 and to enjoin future similar violations of the Brown Act."
The trial court denied the petition, finding that Benoit was functioning as the LAFCO executive officer "notwithstanding the provisions of the agreement" and "therefore, the evaluation of his ...