Orange County: Investigation uncovers alleged open government violations by school district

A PublicCEO reporter alleges that the Garden Grove Unified School District Board of Trustees has committed serious violations of California’s open government law, the Brown Act. -db

February 2, 2010
By Chris Prevatt

One of the most important duties for elected officials to perform is to be open and honest about their actions and to maintain their compliance with the minimal disclosure requirements of the Brown Act.

It really isn’t that hard. The basic premise of the Brown Act is that all business of a public agency, with a few select and specific exceptions, must be conducted in public view.

It is amazing how many public agencies, and the staff supporting them, fail to take these basic tenants seriously. To many the requirements of the Brown Act are seen as a nuisance, rather than a responsibility; an annoyance, rather than an opportunity for accountability.

Such is the case it seems with the Garden Grove Unified School District (GGUSD) and its Board of Trustees.

While it is true that one member of the GGUSD Board, Dr. KimOanh Nguyen-Lam, has stepped forward to state her concerns over their possible failure to meet their responsibilities for public disclosure, without the commitment of the majority of the board to even consider their failures in this area, one voice, no matter how bold, simply cannot correct the board’s collective neglect.

Evidence of this failure of commitment can easily be found in the closing comments of Trustee Lan Nguyen on January 19, 2010.

Commenting on the, albeit incorrect, opinion of legal counsel Ron Wenkart regarding concerns raised by Dr. Nguyen-Lam on January 5, 2010, Mr. Nguyen thanked Mr. Harden and all the members of the Board “for putting the Brown Act matter to rest and I think it’s best for our district to not be distracted further from something that has nothing to do with our mission here.”

With all due respect to Mr. Nguyen, The Brown Act, and the compliance by the GGUSD Board of Trustees with it, IS NOT A DISTRACTION. The Brown Act is integral to the mission of all public agencies.

I have previously written about why I believe that the actions of Trustees Nguyen, Harden, and West at the December 15, 2009 meeting of the board violated the Brown Act. Since then I have engaged in a search for additional information to support for my conclusions. I didn’t have to look very far to find what I was looking for. What I have found not only validates my conclusions regarding the alleged violations that occurred on December 15, 2009, but also revealed other serious violations of the Brown Act by the GGUSD Board of Trustees.

What Is A Meeting?

In my research I found the October 2007 Orange County District Attorney’s Report on his “Investigation into Allegations of Violations of the Ralph M. Brown Act by the Board of Directors of the Capistrano Unified School District.” On page 5 of the report the D.A. describes the definition of “meetings” subject to the Brown Act’s open meeting requirements.

“Meeting” is also broadly defined, and “includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Govt. Code § 54952.2 (Emphasis Added) Thus it is not only those meetings where decisions are made or votes taken which are subject to the Brown Act’s open meeting requirements. Meetings where only discussions occur may also be subject to these requirements.

Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either.” [Citations.] The…term “meeting” must be construed expansively…. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Frazer v. Dixon Unified School District 18 Cal.App.4th 781, 794-795 (1st Cir. 1993) (Emphasis Added)

Thus, ‘the Brown Act … is not limited to gatherings at which action is taken by the relevant legislative body; ‘deliberative gatherings’ are included as well.” [Citations.] Deliberation in this context connotes not only collective decision making, but also “the collective acquisition and exchange of facts preliminary to the ultimate decisions. 216 Sutter Bay Associates v. County of Sutter 58 Cal.App.4th 860, 876-877 (3rd Cir. 1997) (Emphasis Added)

Consistent with these rulings, The Attorney General concluded in a 1998 opinion that such “deliberative” or “fact gathering” meetings remain subject to the open meeting requirements of the Brown Act.

“[T]he general purposes of the [Brown] Act are to ensure not only that any final actions by legislative bodies of local public agencies are taken in a meeting to which the public has advance notice but also that any deliberations with respect thereto are conducted in public as well. [Citations.] “Deliberations” here would include mere attendance, resulting in the receipt of information. [Citation.] “. . . Deliberation in this context connotes not only collective decision making, but also the 6 collective acquisition and exchange of facts preliminary to the ultimate decision.” (81 Ops.Atty.Gen.Cal 156 (1998), pp. 6-7 (emphasis added).)

The purposes of the Brown Act are thus to allow the public to attend, observe, monitor, and participate in the decision-making process at the local level of government. Not only are the actions taken by the legislative body to be monitored by the public but also the deliberations leading to the actions taken. (84 Ops.Atty.Gen.Cal. 30 (2001), p. 2 (Emphasis Added).)

It’s Not Like Counsel Didn’t Know

The really sad part here is that district counsel Ron Wenkart knows about this finding and opinion from the District Attorney. Wenkart was a party to the District Attorney’s investigation of Capistrano Unified School District as he was that district’s counsel as well. Simply put, Wenkart knows that the discussion of the nomination of officers as related by Dr. Nguyen-Lam, even if those discussions are split into two separate distinct discussions about two separate offices, violates the Brown Act when a majority of the board is present for those discussions. His opinion is either a deliberate effort to deflect criticism of an illegal action by falsely claiming it was legal; or he is simply incompetent.

The Garden Grove Unified School District Board is relying on a faulty opinion from legal counsel that is contradicted by case law and opinions from the Orange County District Attorney, the California Attorney General, and case law. Trustee’s Nguyen, Harden, and West did in fact violate the Brown Act when Trustee Nguyen attempted to predetermine who would be nominated as officers of the board in an informal caucus of a majority board members on December 15, 2009.

As I mentioned earlier, it gets worse. Because of Wenkart’s clearly false opinion, I felt compelled to take a closer look at the actions of the GGUSD board related to their overall compliance of the Brown Act. What I found is that the GGUSD board has a long established pattern and practice of blatantly violating the most basic provisions of the Brown Act.

More Brown Act Violations

The Brown Act requires under section 54954.2, subdivision (a), the legislative body must post an agenda containing 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,” and no action or discussion shall be undertaken on any item not appearing on the posted agenda…. Shapiro v. San Diego City Council, supra, 96 Cal. App. 4th 904, 923. (Emphasis Added)

The Brown Act requires under section 54954.3. (a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body. (Emphasis Added)

Investigation finds more Brown Act violations by GGUSDThe agenda for the meetings of GGUSD do not comply with either of these provisions of the Brown Act. The standard agenda for GGUSD meetings includes the following notification: PUBLIC HEARINGS, PRESENTATIONS, AND REPORTS. This is not sufficient to describe to the public that this is where they would have the opportunity to engage in public comment to the board as required under section 54953.3. (a). Further this description is not at all sufficient to meet the requirement for a “brief general description of each item of business” as is required by section 54954.2 (a).

In fact, a review of the Agenda for the January 19, 2010 meeting of GGUSD reveals agenda item descriptions throughout that do not meet the requirements of the Brown Act. These include: Expulsion Recommendation, Rejection of Claim, Leaves Requests, and Miscellaneous Layoffs. None of these descriptions adequately describe what business is being transacted or discussed. This pattern is consistent across most of the posted agendas over the past year.

But the most blatant violation of the agenda disclosure requirements is the description that is routinely utilized to describe closed session deliberations of the board. As shown in the Agenda for the January 5, 2010 meeting, the board states that it will hold a Closed Session Pursuant to Government Code Section 54957 to Discuss: (1) Budget Related to Negotiations; (2) Potential Litigation. The Minutes of the meeting show that prior to entering Closed Session, the President stated that the Board would be entering closed session pursuant to Government Code Section 54957 to discuss Budget Related to Negotiations.

Unfortunately, the Board again seems to have no idea how to comply with even the basic provisions of the Brown Act. The Board is required to state in its agenda the appropriate section of the Government Code that allows for the closed session discussions. Without delving into too much detail, citing Section 54957 does not meet that requirement, for either item noticed on the agenda and therefore did not meet the requirement for the matter discussed. But the Board’s violation of the Brown Act does not stop there. The description of an item related to negotiations must state the parties with whom negotiations are regarding, who the negotiator is, and what is being negotiated. In the case of an employment contract the agenda should state something like “negotiations related to terms and conditions of employment.” That did not occur in this case. This pattern is also consistent throughout the past year of meetings reviewed.

More Than Not Citing The Right Government Code

This is not simply a matter of a failure to cite the proper section of Government Code. The Board has also repeatedly violated the Brown act by discussing budget matters in closed session. This is explicitly prohibited by the Brown Act.

Again, one would think that the district’s counsel would have noticed this violation. The same detailed description of “how to comply with the Brown Act related to closed sessions” was included in the District Attorney’s investigation I referenced earlier. The first of the several recommendations from the District Attorney to the Capistrano Unified School District Board was:

The District Attorney strongly urges the Board of Director’s to retain competent legal counsel familiar with the Brown Act to advise it. This counsel should be present, and available for consultation, at all Board meetings, public or closed. In addition this counsel should be asked to review and approve all agenda items, especially those for closed sessions, before the agendas are posted. The past practices of the Board in relying on… attorneys apparently unfamiliar with, or inexperienced in, the Brown Act are insufficient in guiding the Board in complying with the Brown Act.

This recommendation is quite relevant in this case as well as Mr. Wenkart is apparently unfamiliar with the Brown Act. In my discussions with board members from other districts using the services of Mr. Wenkart through the Orange County Department of Education, I have heard a recurring refrain. Wenkart really doesn’t know what he’s talking about when it comes to the Brown Act. One member went so far as to say that Wenkart’s assertion that the Brown Act was not violated by Lan Nguyen’s actions on December 15, 2009 was laughable and absolutely wrong.

Why They Should Simply Admit They Screwed Up

Courts have held that “failure to concede” that past conduct or actions constitute a violation of the Brown Act, in fact will support a presumption by the courts that a legislative body “will continue similar practices.” The Garden Grove Unified School District Board of Trustees has the opportunity to resolve this matter and correct its behavior. Failure to do so could lead to a request to the courts for declaratory relief to resolve this matter.

There is another matter that the board should really look into. Sometime over the weekend of January 16 – 18 the communication between Ron Wenkart and the Board of Trustees regarding the Brown Act inquiry was released to a local blogger Paul Lucas. Lucas subsequently posted that entire communicationon the internet the evening of January 18. The communication appeared to me to be intended as a communication between the district’s counsel and the board for their review and not public disclosure. I have confirmed that the three district staff that had access to the memo, Superintendent Schwalm, her assistant and the district’s public information officer, did not release the memo to Lucas or any other member of the public. Other than these three individuals only the five members of the board were provided copies.

A Leak In The Board Room

Therefore, only one conclusion can be reached regarding the release of the memo. One of the five board members released the memo to Lucas. Despite the protestations of Lucas that he “did not get the letter from Lan Nguyen or any agent on behalf of Lan Nguyen,” since member Nguyen was the subject of the primary allegation of violating the Brown Act at the December 15, 2009 meeting it is most likely that Nguyen was the member who released the document to Lucas.

Whether it was Nguyen or one of the other members of the board who released their confidential attorney-client communications, there seems to be a serious absence of ethics and integrity somewhere on that board. They really should figure out who is responsible and plug that ethics hole.

Copyright 2010