A superior court judge ruled that the Capistrano Unified School District violated the Brown Act, the state’s open meeting law, in not properly preparing the agenda on a closed door meeting on a personnel matter. In recent years the board had been reprimanded five times for violating the Brown Act, and a board with all new members had pledged to do better. -db
Orange County Register
March 22, 2010
By Scott Martindale
Superior Court Judge David McEachen in Santa Ana said last week that Capistrano Unified School District did not properly prepare the agenda for the closed-door meeting and thus failed to inform the public that it was holding a discussion about whether to put then-Superintendent A. Woodrow Carter on paid administrative leave. The agenda referred only to a “performance evaluation,” not disciplinary action.
The school board’s decision to suspend Carter five months later, in January 2009, was met with fierce opposition from parents, teachers and other employees.
McEachen also ruled that trustees should have provided notice they were bringing in a non-district employee for the evaluation session – school-law attorney Spencer Covert – who served as a one-time, pro-bono consultant during the meeting.
“Covert’s attendance either should have been on the agenda, or constituted the improper inclusion of a member of the public in the session,” McEachen said in a March 16 ruling. “… The agenda did not adequately set forth closed-session topics and is in violation of the Brown Act (open-meeting laws) as to the unnoticed attendance of attorney Covert and the proposed disciplinary action against Superintendent Carter.”
The judge’s ruling does not impose any sanctions on Capistrano Unified, which has been ordered not to violate the Brown Act again.
Repeated violations
Capistrano Unified’s school board has been sternly reprimanded five times for repeated Brown Act violations, the first four by the Orange County District Attorney’s Office.
The board was reconstituted entirely between the first four violations and the most recent one, with the new “reform” trustees pledging a new era of accountability and transparency.
“This entire (“reform”) school board ran on a campaign dedicated to restoring honesty, integrity, and accountability to public education,” Vicki Soderberg, president of the Capistrano Unified Education Association union, said in a statement. “But if their action in this case is their definition of these qualities, I want no part of it, and thankfully, neither do the courts.”
The teachers union, which was deeply critical of the school board’s decision to fire Carter, initiated the lawsuit alleging the Brown Act violation in November 2008.
Trustee Mike Winsten, who was elected three months after the August 2008 violation, said he felt the judge erred in his ruling. And regardless, Winsten stressed, the violation was not of the same magnitude as in the past, when the D.A.’s office issued four consecutive stinging reports, the last of which said some former trustees had exhibited “disturbing disdain, if not outright contempt” for constituents when meeting behind closed doors.
“This was one incident 19 months ago, and there’s no hint or evidence it ever happened again,” Winsten said. “The Brown Act is so vague and ambiguous. Everyone is doing their best to comply with it.”
D.A.’s advice ignored
The D.A.’s office has said that ignorance of the Brown Act is not a valid excuse for elected officials, and has strongly urged Capistrano’s school board to hire a full-time, in-house attorney who can provide consistency and expert advice.
But the 52,000-student district – Orange County’s second largest – has yet to hire a full-time attorney, and as the district works to close an anticipated $34 million budget deficit, trustees have emphasized how much money they are saving by contracting out various jobs in the district office to part-time employees.
The school board employs about a dozen law firms that represent the district on a variety of specialized issues, from land acquisition to election law.
In its original lawsuit against the school board, Capistrano’s teachers union also argued that trustees created an illegal quorum during a September 2008 school board facilities subcommittee meeting, when two trustees who were not members of the committee “began asking questions and/or making statements” at the meeting, thereby ceasing to be “mere observers.”
The judge ruled there was no Brown Act violation in that instance, noting the two trustees did not engage in “substantive discussion or inquiry” at the meeting.
“The evidence submitted supports a finding that (trustee Ellen) Addonizio did not participate in the subcommittee meeting,” McEachen said. “She asked the speaker to raise his voice so that she could hear and inquired as to when a topic might be discussed.”
Copyright 2010 Freedom Communications
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The introduction to the Brown Act describes its purpose and intent:
In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the LAW that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
California Government Code:
54959. Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a MISDEMEANOR.
California Penal Code:
182. (a) If two or more persons conspire: (1) To commit any crime. (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime. (3) Falsely to move or maintain any suit, action, or proceeding. (4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises. (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. (6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States. They are punishable as follows: When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment in the state prison for five, seven, or nine years. When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree. If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in the county jail for not more than one year, or in the state prison, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000). All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done. (b) Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.
California Penal Code:
659. Whenever an act is declared a misdemeanor, and no punishment for counseling or aiding in the commission of such act is expressly prescribed by law, every person who counsels or aids another in the commission of such act is guilty of a misdemeanor.
I forgot the School Board attornies
California Evidence Code:
956. There is no privilege under this article if the services of
the lawyer were sought or obtained to enable or aid anyone to commit
or plan to commit a crime or a fraud.
956.5. There is no privilege under this article if the lawyer
reasonably believes that disclosure of any confidential communication
relating to representation of a client is necessary to prevent a
criminal act that the lawyer reasonably believes is likely to result
in the death of, or substantial bodily harm to, an individual.
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