In defending his district against allegations made by the Kern County Grand Jury of open government violations, the school superintendent said that the school board published their agendas sufficiently and took public comment on the reassignment of a middle school principal. -DB
May 28, 2009
STATEMENT IN RESPONSE TO GRAND JURY REPORT
As you know, the Tehachapi Unified School District Board of Trustees made a decision to reassign a principal. The result of which has been very controversial in the community. The Kern County Grand Jury interviewed staff and Board members and issued a report alleging Brown Act violations in connection with that decision. The District will have 60 days to respond.
I have read the report and have had a preliminary discussion with our legal counsel regarding it. On the basis of that review, I feel that clarification is needed. The specific allegations in findings 1.a through 1.i are listed below, together with a response. A more detailed response will be filed with the Grand Jury as required by law.
The decision to reassign a principal was made pursuant to a properly agendized closed session item on March 10, 2009. The results were reported out in open session. On March 24 the board sat through 4 ½ hours of nothing but public comments on this subject. The Board then revisited its decision at an April 2, 2009 meeting, after receiving some two and one-half hours of additional public comment, and decided to proceed with the reassignment, with the result reported out in open session.
The Brown Act requires board agendas to provide a brief general description of the items to be discussed, so that members of the public can determine whether they wish to attend or monitor the issue. We do not agree with the Grand Jury’s characterization of the sufficiency of our agenda descriptions, as clarified below.
GRAND JURY FINDING 1.a
“The March 3, 2009, Special Board Meeting agenda item No. 1 ‘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 as required by Government Code § 54954.5.”
RESPONSE TO GRAND JURY FINDING 1.a:
The full text for this agenda item provides additional detail concerning the applicable job class. It states, “Public Employment – Governance Code 54957, The Board will meet with the Superintendent to review the evaluations of one or more Administrators.”
The Brown Act provides a series of “safe harbor” closed session descriptions which a school board “may” use in describing a closed session agenda item. As noted by the California Attorney General, their use is “strictly voluntary,” but if used, the agenda item will be considered to be in substantial compliance with Brown Act requirements. (See Government Code section 54954.5.) Failure to use the “safe harbor” descriptions does not automatically result in a Brown Act violation. The Brown Act requires that school board agendas contain a “brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.” (Government Code section 54954.2.)
Under the circumstances, it does not follow that the Brown Act was violated because the agenda did not use the “safe harbor” format. The March 3 agenda item briefly described the business the school board intended to carry out, sufficient to put the public on notice as to what would take place, and indicated that the evaluations to be discussed would only involve a small class of “administrators,” in substantial compliance with Brown Act requirements.
GRAND JURY FINDING 1.b:
“The March 10, 2009, 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 as required by Government Code § 54954.5.”
RESPONSE TO GRAND JURY FINDING 1.b:
Please see the response to Item 1.a. The use of the term “certificated administrators” defines a small class of employees consisting of only principals and certain District-level administrators and substantially complies with the requirements of the Brown Act.
GRAND JURY FINDING 1.c
“The March 10, 2009, 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.”
RESPONSE TO GRAND JURY FINDING 1.c:
As discussed above, the Brown Act requires that an agenda provide a brief general description of each item of business to be transacted or discussed at the meeting. Our legal counsel advises that, unlike the statute permitting school boards to discuss pending litigation in closed session, the statute authorizing closed session consideration of personnel matters such as evaluations and reassignments does not require a citation to the authority for discussing the matter in closed session. (As the Report points out in Finding 1.F, Government Code section 54957 specifically authorizes a closed session for this purpose.)
Education Code section 44951 provides the specific authority for the action under consideration (reassignment of certificated administrators). The citation to this statute in our agenda was helpful to put the public on notice as to the specific nature of the action under consideration.
The March 10 agenda item met the Brown Act requirements by putting the public on notice that consideration of a proposed notice of reassignment of certificated administrators would take place in closed session. The agenda item was more detailed than the “safe harbor” description permitted under the Brown Act.
GRAND JURY FINDING 1.d
“The March 10, 2009, 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.”
RESPONSE TO GRAND JURY FINDING 1.d:
Government Code section 54957.6 does in fact provide the authority for negotiations between school boards and their employee bargaining units. The statute states, “Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and for any represented employees, any other matter within the statutorily provided scope of representation.”
GRAND JURY FINDING 1.e
“The March 10, 2009, 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.’”
RESPONSE TO GRAND JURY FINDING 1.e:
The Board did in fact meet with its labor negotiator, Carl Lange, at this meeting to discuss negotiations. Billing records specifically confirm his presence at the meeting.
GRAND JURY FINDING 1.f
“The March 10, 2009, 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 statutory basis for closed session is Gov. Code § 54957.”
RESPONSE TO GRAND JURY FINDING 1.f:
This appears to be the same as item 1.c above. Please refer to the comments provided for that item.
GRAND JURY FINDING 1.g
“The action taken in closed session on March 3, 2009 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.”
RESPONSE TO GRAND JURY FINDING 1.g:
The law prohibits me from revealing discussions that took place in a closed session. However, our legal counsel advises that the requirement to provide 24 hours notice to an employee is triggered only when the Board formally hears complaints or charges against an employee brought by another person or employee. The Courts have held that this is not the case where, for example, a local agency meets to consider an employee’s evaluation and that discussion includes information which is in the nature of a complaint. See Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, Kolter v. Commission of Professional Competence of the Los Angeles Unified School District (2009) 170 Cal.App.4th 1346.
GRAND JURY FINDING 1.h
“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.”
RESPONSE TO GRAND JURY FINDING 1.h:
Again, the law prohibits me from revealing the content of Board discussions held in closed session. However, even if this did occur, our legal counsel advises that in light of recent court rulings, it appears unlikely that a school board’s consideration of information of a disciplinary nature based on complaints in connection with the decision to reassign an administrator would trigger the 24-hour notice requirement. In order to be considered to be “hearing complaints or charges,” court decisions say the Board would need to hold a “proceeding of relative formality, generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented.”
GRAND JURY FINDING 1.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.”
RESPONSE TO GRAND JURY FINDING 1.i:
Board President Mary Graham indicates that she did announce the action taken when the Board returned from closed session on this item. (However, the only notation made in the minutes was “motion carried.”) In open session at the May 12, 2009, Board meeting, Board President Graham clarified that the vote in support of the motion was 7-0, as confirmed by the notes of the District Secretary.
The vote of each Board member concerning the reassignment of the principal at the March 10 and April 2 meetings was recorded in the minutes.
ADDITIONAL FINDINGS AND COMMENTS
The Grand Jury report contains additional generic findings of Brown Act violations, some of which contain little in the way of specifics (see Findings 2-6). The District will respond to these as required by law.
The report also mentions that not all Board members have attended Ethics Training or governance training or maintained current certification. While there is no legal violation involved, I want to emphasize that our administrative staff and several board members voluntarily attended Ethics Training earlier this school year and the opportunity will be made available to the remaining board members.
Richard L. Swanson, Ph.D.
Superintendent, Tehachapi Unified
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