Chula Vista school board: Pre-meeting sessions raise questions about open meeting violations

The Chula Vista Elementary school board says that their gatherings before board meetings in the superintendent’s office to eat take-out food and to ask one-on-one questions of the staff are open to the public and not in violation of California’s Brown Act, the state’s open meeting law. -db

San Diego Union-Tribune
September 2, 2010
By Ashly McGlone

Chula Vista Elementary school board members have been gathering in the superintendent’s office before their public meetings, asking questions about agenda items and eating restaurant take-out food paid for by taxpayers.

State law generally requires elected officials to post public notices so citizens can attend when public business is discussed with three or more board members. But district officials say the pre-meeting sessions are not subject to those requirements.

The practice raises the possibility that a consensus could be reached in private, depriving the public of the right to know what went into board decisions.

The Watchdog reviewed minutes of all board meetings from December 2008 to the present. Of 130 motions, 129 passed unanimously. The one split vote, in February, concerned the order of agenda items.

Records obtained by The Watchdog under the California Public Records Act reveal $2,035 in meals have been billed to the district’s general fund since December 2008.

According to board vice president Larry Cunningham, food is “always there. If we have a board meeting, it’s there.” He said the meals have been standard practice since he joined the school board more than 16 years ago and no one has ever raised a concern.

The informal gatherings give board members a chance to grab a bite to eat and get their questions answered by staff members, Cunningham said.

“If you have a question to ask staff, you have a chance to go ask staff about that. It is nothing. We don’t meet with closed doors. The doors are always open,” Cunningham said. “We find it is easier to do that than ask a lot of questions at board meetings. We feel the board meetings are there for input for the public.”

Max Batangan, assistant to the school board and the superintendent, distributes meeting agendas and notifies members of any changes, according to the superintendent and board members.

Superintendent Lowell Billings, who is set to retire in December after nine years as superintendent, said, “It is a staging for the main board meeting which is held in open session. Meaning, you gotta have a place to show up, and I hold it in my office, so I am the gatekeeper.”

Generally, board members said the meeting allows them to ask one-on-one questions of staff members for clarification.

“I read the packet myself. The protocol is to take any questions to the superintendent or other district staff for more verification or information,” board member Douglas Luffborough said.

The idea of one-on-one questions may be a key distinction, experts said, as any group discussion of issues in the pre-meeting would be forbidden under the state’s open-meetings law, known as the Ralph M. Brown Act.

Dan Hentschke, a former Oceanside, San Marcos and Solana Beach city attorney and current general counsel for the San Diego County Water Authority, conducts trainings for elected officials on open-meetings law. Briefings on changes to the night’s agenda could be an issue, he said.

“Updating collectively, that’s a problem,” Hentschke said. “If they are hearing collectively information, that should be held in an open meeting.”

“These kinds of meetings are ones that we use as an example of ones that can be very problematic,” Hentschke said. “The law is very clear that gatherings of a majority of a legislative body have to be open-noticed and public if there is any discussion among the board members of public business. Gatherings of this nature can be held in compliance, but it is very difficult because they cannot talk about matters of agency business.”

Attorney Michael Jenkins, chair of Brown Act Committee for the League of California Cities, also said that a notification of agenda changes would be considered school business.

“Under the Brown Act they are not allowed to hear, discuss or deliberate on any matter of district business. That’s a problem because that’s business that pertains to the school district. It’s just not a good idea to have them all together,” he said. “I can’t say if their particular practice is a violation. I will say it could be under certain circumstances that they need to avoid.”

Theresa Acerro, president of the Southwest Chula Vista Civic Association and a retired teacher, said, “I would be really concerned about that. I think those questions should be asked in a public meeting because it is likely that members of the public would have those same questions.”

Former district board member and retired economics professor Peter Watry, 79, also expressed concern over the board dinners. Watry — who said the meals were not present when he served on the board from 1976 to 1980 — currently serves as vice president and acting president of the nonprofit Crossroads II, aimed primarily at monitoring land use decisions by the Chula Vista City Council.

“If they are following the Brown Act, they shouldn’t be doing it,” said Watry. “Even that one-on-one gets tricky. If you talk to a third person, you violate the Brown Act. My guess is they are just not paying attention to the strictness of the rules, but they should not be doing it.”

A favorite meal for the board sessions was the $110 large kabob pack from Daphne’s Greek Cafe. Other meals came from China China restaurant and Pat & Oscar’s. Some food was also prepared by the district’s Child Nutrition Services.

The spending on meals comes despite the financial issues facing most school districts in the state.

At Chula Vista, managers are taking seven furlough days this academic year and next, while classified staff will take two to six furlough days and teachers will take 5.5 furlough days, two of which are class days shortening the school year. No furloughs were in place last year.

Also, this year is the first year the district’s 20:1 class size cap has been removed. Average class sizes this year are 19.9 children for kindergarten through third grade, and 28.9 children for fourth through sixth grade. Last year’s average was about 18 students.

Billings said the food is for board members and other district staff but members of the public could come to the pre-meetings.

“Anybody can walk in and see them and I am there to be the sergeant of arms of board members,” Billings said.

But Acerro countered, “That’s no public meeting, and besides they have to have publicly notice meetings, and if it’s not a meeting, they shouldn’t be all together discussing school business,” she said.

Billings contends there is no Brown Act violation.

“Everybody in the work knows that these meetings take place. They are really not meetings, but a gathering place,” Billings said. “If a board really wanted to violate the Brown Act, they would be more secretive or subversive or meet in a covert matter.”

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