Southern California: Alleged Brown Act violation by school district during teleconferencing

The Orange Unified School District board of trustees has allegedly violated the Brown Act, California’s open meeting act in failing to observe the rules governing teleconferencing votes. According to the act, all votes during teleconference must be rollcall votes. -db

Greater Orange News Service
July 26, 2010

With Trustee Kim Nichols participating in the June 10, 2010 OUSD Board meeting by teleconference from Memphis Tennessee, the OUSD Board voted by illegal voice vote on several major items. The Brown Act, which allows teleconferencing also specifically denotes the rules under how that teleconferencing is to take place. One of the specific rules spelled out in Section 54952 (2) of the Brown Act is that all votes during teleconferencing be rollcall votes:

54953. (2) Teleconferencing, as authorized by this section, may be used
for all purposes in connection with any meeting within the subject
matter jurisdiction of the legislative body. All votes taken during
a teleconferenced meeting shall be by rollcall.

None of the votes taken during the teleconference meeting on June 10 were by rollcall which is a violation of the Brown Act, technically making those votes illegal. The Brown Act also defines in Section 54952 (4) what a teleconference meeting is;

(4) For the purposes of this section, “teleconference” means a
meeting of a legislative body, the members of which are in different
locations, connected by electronic means, through either audio or
video, or both.

By definition, the June 10 OUSD Board Meeting was a teleconference meeting with Trustee Kim Nichols participating by a conference call. In fact the telephonic conference device was set up at her position at the Board diaz. The re-broadcast of the Board meeting on the OUSD Cable Channel shows the device and has Nichols name under it on the screen when Nichols spoke by telephone at the meeting. Nine major votes were cast during the meeting by voice, all of which were illegal and could be technically null votes. Those votes included:

• Approving a tentative labor agreement for a reduction in work days with the Orange Unified Educators Association.
• Approving a reduction in work days for leadership employees
• Approving an amendment to the Superintendent’s Contract for a reduction in work days and pay
• Approved a new school calendar with five fewer days
• Approving a Budget Resolution
• All Consent Agenda Items

In the past the OUSD Board has had problems with the Brown Act. Litigation has broken both ways, for and against OUSD. In 2003, as a result of alleged Brown Violation case from 2001, OUSD was forced for two years to record all closed session meetings in case a judge had to review them for Brown Act violations. In another noteworthy case from 2006, Californians Aware, a Brown Act advocacy group, teamed with former Trustee Steve Rocco in accusing OUSD of Brown Act violations in a celebrated case that led to the Censure of Rocco by fellow OUSD Board members. In the end, OUSD won that case and later took legal actions to recover attorney costs from Rocco.

The next OUSD Board Meeting on July 29, will also be a teleconference meeting with Trustee Melissa Smith attending from Lake Forrest, Illinois.

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2 Responses to Southern California: Alleged Brown Act violation by school district during teleconferencing

  1. Jack Osborne July 29, 2010 at 7:13 pm #

    It is time to get some clarification of the Brown Act, re: 54957 and 54957.6, which, are, in effect, competing with each other.

    The court, in San Diego Union vs. City Council of City of San Diego stated, in the opinion:
    “..The primary issue presented by this appeal is whether the Ralph M. Brown Act (Brown Act), specifically section 54957, requires public sessions when salaries of nonelected city officers or employees are discussed and determined. We conclude the Brown Act prohibits exclusion of the public during City Council sessions at which such salaries are discussed and/or determined, except when a specific non-elected officer’s or employee’s job performance is evaluated the City Council should meet in executive session for that purpose only and, upon determining the individual warrants a salary adjustment, hold a properly noticed, public meeting to determine that adjustment. As so interpreted, we affirm the judgment.”(emphasis added)

    And in dicta, the following:
    “Our determination is consistent with the purpose and mandate of the Brown
    Act and the specific language of section 54957. Salaries and other terms of compensation
    constitute municipal budgetary matters of substantial public interest warranting open
    discussion and eventual electoral public ratification. Public visibility breeds public
    awareness which in turn fosters public activism politically and subtly encouraging the
    governmental entity to permit public participation in the discussion process.”

    And , in reference to 54957.6, the following:
    “Had the Legislature intended the “personnel exception” to permit closed hearings for the
    determination of the cited public employees’ salaries, it could have easily included such
    authorization when it enacted section 54957.6 in 1968 (15 years after the enactment of
    the Brown Act), which permits the governmental body to meet in executive session with its representative in collective bargaining negotiations to design negotiating strategy,”

    “Consequently, the [146 Cal.App.3d 957] omission of any
    reference to salary or other terms of compensation in section 54957 and the express
    reference to a specific kind of salary discussion within section 54957.6 evidence a
    legislative intent not to include such salary discussions within the ambit of the “personnel
    exception,” requiring such a hearing dedicated to salary determination to be open and public unless such discussions fall within the narrow provisions of section 54957.6. fn. 6”

    Now the problem has arisen in that the Public Agencies subject to the Brown Act, have , for some reason, interpreted 54957.6 to allow complete discussions of salaries to be paid to employees in closed session, and never discuss the salaries to be paid in open session, but simply provide a resolution on the Agenda setting forth the changes and then vote to accept the changes.

    Obviously, this practice conflicts with the Court’s decision in San Diego Union vs. City Council of the City of San Diego, and the variations in interpretations of the subject laws appears, to me, to require a decision by the Attorney General of California, as the AG’s pamphlet on the Brown Act makes reference to the Case referred to in this letter, and states that all discussion of salaries to be paid, must occur in a public session.

    City of Santa Rosa hired a new City Manager, and , at no time, was there any discussion of the salary to be paid by the City Council in a public session.

  2. Jack Osborne July 29, 2010 at 7:17 pm #

    In reference to teleconferencing, at times , Santa Rosa , when having a teleconferencing meeting, will have electronic voting when the away member has left the teleconferncing meeting, or the connection has failed.

    So, an announced teleconferencing meeting may only be a teleconfercing meeting for part of the meeting, and I suppose that that changes the deal.

    Jack