After Tehachapi, California citizens questioned the demotion of a middle school principal, the Kern County Grand Jury found that the school board limited public participation by failing to follow open government procedures. -DB
KERO 23 ABC
May 27, 2009
TEHACHAPI, Calif. — In response to several citizen complaints regarding the demotion of Jacobsen Middle School Principal Eric Trigueiro, the Health, Education and Social Services Committee 2008-2009 Kern County Grand Jury investigated the Tehachapi Unified School District (TUSD) Board of Trustees (Board) for possible violations of the Brown Act.
The Brown Act regulates when, how, where and why meetings can be held. It defines what a meeting is, and where and when a meeting agenda should be posted to ensure maximum public notice and participation. The Brown Act specifically authorizes a board to meet in closed session to consider (including taking action on) the appointment, employment, evaluation of performance, or dismissal of a public employee.
Under the Brown Act, when a board intends to meet in closed session, it has three types of “notice” obligations. First, each item to be transacted or discussed in closed session must be described on an agenda for the meeting. In the closed session, the board may consider only those matters covered in its statement. Second, prior to adjourning into closed session, the items to be discussed in closed session must be orally announced. Third, after the closed session has been completed, the board must reconvene in open session, where it may be required to report votes and actions taken in closed session
According to the Grand Jury of Kern, the TUSD Board of Trustees action in demoting a middle school principal was in violation of the Brown Act as follows:
The March 3, Special Board Meeting agenda item No. I “Closed Session – Public Employment-Governance Code 54957, (sic)” violates the Brown Act because it does not specify the title of the person(s) to be discussed.
The March 10, closed session Agenda No. I “For Discussion and Consideration to Take Action on Proposed Notice of Reassignment to Certificated Administrators-Education Code 44951” violates the Brown Act because it does not specify the title of the person(s) to be discussed.
The March 10, Agenda failed to state the correct statutory basis for the closed session that was held. Education Code § 44951 does not provide the required statutory basis for a closed session.
The March 10, closed session Agenda item No. 2. “For Discussion of Governance Code 54957.6, Negotiations, conference with legal council (sic.)” violates the Brown Act because Government Code § 54957.6 is not the correct statutory basis for “Negotiations”.
The March 10, closed session violates the Brown Act because the actual closed session discussion and action taken was not properly noticed on the agenda. The Board did not discuss “Negotiations.”
The March 10, Agenda failed to state the required statutory basis for a closed session. Education Code § 44951 does not provide the required statutory basis for a closed session.
The action taken in closed session on March 3, is in violation of the Brown Act because discussion or action was taken that did not appear on the posted agenda. The board did not review Evaluations of Public Employee(s) as stated in the Agenda. The board discussed complaints against one public employee.
Action taken in closed session on March 3, 2009 and March 10, 2009, is in violation of the Brown Act because the action or discussion was of a disciplinary nature based on complaints, and no 24 hour notice was given to the employee.
i. The action taken in closed session on March 3, 2009 was not announced to the public nor was the vote of each board member disclosed.
2. The TUSD Board of Trustees is in violation of the Brown Act, generally, as follows:
a. For closed sessions, the Board fails to comply with the Brown Act which requires that an item to be discussed in closed session shall be announced in open session. After the closed session the Board shall disclose the action taken and shall report the vote or abstention on the action of every member present.
b. The printed agendas for all Board meetings fail to comply with the agenda statement required by Government Code § 54954.2 regarding the Americans with Disabilities Act.
c. The Board fails to provide an opportunity for members of the public to directly address the Board concerning any item that has been described in the notice for the special meeting before or during consideration of that item.
e. Members of the Board have disclosed to non-Board members information discussed in closed sessions, in violation of the Brown Act, and the Privacy Act of 1974 (5 USC § 552(1).
3. All printed Agendas contain a statement about a copying fee. The basis for the fee could not be determined, nor could it be ascertained if a copying fee has ever been charged.
4. The Board generally fails to comply with By-Laws and Board Policy which require compliance with all aspects of the Brown Act.
5. Not all Board members have attended Ethics Training or governance training or maintained current certification.
6. The Superintendent of TUSD is the Secretary of the School Board and is responsible for the agendas and minutes.
As a result of this inquiry it became obvious that the Superintendent and the Board intended to take certain action without notice to the public, possibly fearing the “firestorm” that ensued. Based on sworn testimony, this action appears to have been taken in response to complaints against a middle school principal primarily from the Tehachapi Association of Teachers. This action unnecessarily created a divisive, toxic atmosphere among the school community, turning board members, teachers, parents and students against each other.
The Grand Jury cannot investigate the correctness of the Board’s decision to demote a middle school principal. The Grand Jury is limited into inquiries regarding violations of the law (such as violations of the Brown Act and the Education Code), and whether the Board follows its own By-Laws and Board Policies.
A copy of this report will be forwarded to the Kern County District Attorney’s Office for investigation of on-going Brown Act violations and to deem if further legal action against the TUSD Board of Trustees is warranted.
Agendas, minutes of meetings and School Board Policy may be found on the Tehachapi Unified School District web site: www.teh.k12.ca.us.
1. Agendas describing closed session items should correctly characterize the item by complying with Government Code § 54954.5 as follows:
“Public Employee Appointment Title: (specify description of position to be filled) Public Employment Title: (Specify description of position to be filled) Public Employee Performance Evaluation Title: (Specify position title of employee being reviewed) Public Employee Discipline/Dismissal/Release (No additional information is required).”
2. As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee should be given written notice at least 24 hours before holding the session as required by Government Code § 54957.
3. The Board should comply with Government Code § 54954.3 giving members of the public the opportunity to directly address the Board, before or during the Board’s consideration of the item.
4. The Board should limit the discussion of each meeting to the topic stated in the Agenda.
5. The minutes of each meeting should reflect the actions actually taken by the Board.
6. TUSD Trustees and Superintendent should take an ethics training course pursuant to AB 1234 and the recommended governance training for public officials.
7. TUSD School Board Policy manual should be followed and reviewed annually to update and delete obsolete items.
8. Each agenda should include language to comply with the Government Code with the Americans with Disabilities Act.
9. The note on the agendas concerning a charge for agenda copies should be revised if charges are required for copies or deleted if there is no charge.
The TUSD Board of Trustees should post a copy of this report where it will be available for public review.
Note: Present and past Kern County Grand Jury Final Reports and Responses can be accessed through the Kern County Library system and on the Kern County Grand Jury Web site www.co.kern.ca.us/grandjury.
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