"Independent Contractor" Still Considered "Public Employee" Under the Brown Act

By Cori Badgley

In Hofman Ranch v. Yuba County Local Agency Formation Commission, 172 Cal.App.4th 805 (2009), the Court of Appeal, Third Appellate District held that an independent contractor hired by the Local Agency Formation Commission (“LAFCo”) acting as LAFCo’s executive officer, was, for the purpose of the Brown Act, an employee of LAFCo.  Because the independent contractor was an employee, LAFCo lawfully held a closed session to discuss the contractor’s employment terms pursuant to the Ralph M. Brown Act.

Generally, the Brown Act (Gov. Code § 54950.5 et seq.) requires “[a]ll meetings of the legislative body of a local agency [to] be open and public.”  (Gov. Code, § 54957(b)(1).)  However, certain exceptions apply, including the “evaluation of performance … of a public employee.”  (Gov. Code, § 54957(b)(4).)  In this case, LAFCo held a closed session to evaluate the performance of John Benoit, whom LAFCo hired as an independent contractor to provide executive officer services.  The plaintiffs sued LAFCo on the grounds that the closed session violated the Brown Act because John Benoit was not a public employee.

The trial court held that Mr. Benoit was a public employee and denied the plaintiffs’ petition.  The appellate court agreed.

Although the contract stated that Mr. Benoit was not an “agent, officer or employee of LAFCO” and that Mr. Benoit “is not subject to the direction and control of LAFCO,” the appellate court found that Mr. Benoit performed the duties of the executive officer of LAFCo.  This made him a public employee pursuant to the Brown Act.  The contractual language establishing an independent contractor relationship was not dispositive of whether Mr. Benoit was a public employee.  Instead, the court looked to Mr. Benoit’s duties and obligations under the contract.  In light of the services performed, the court held that Mr. Benoit was a public employee, and therefore, LAFCo acted properly in evaluating his performance in a closed session. 

Cori M. Badgley is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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