Q: In October 2012 the State took over the school district and our School Board lost its authority. A State Trustee was appointed and he acts as the School Board. Our group has been monitoring the administration of the school district since April 2013. Since then we have observed numerous violations of the legislation authorizing the takeover of the school district SB 533, the California Education Code, the Public Contracts Code, the California Public Records Act, and the Brown Act.
We believe that the State Trustee violated the Brown Act when he did not specify appointments he was making to the School Board to fill vacant seats. He also is denying public review of the application for the School Board seats of those he selected. We sent a letter to the State Trustee asking him to “cure and correct” the Brown Act violation he committed and just received a response from the school district’s lawyer saying that he was in compliance with the Brown Act. They also said they would not provide public access to the School Board applications citing California First Amendment Coalition v. Superior Court (1998).
I have encountered a complicating factor in deciding what do in that I was told by one lawyer that the State Trustee acting as the School Board is not subject to the Brown Act because he is an individual and the Brown Act only applies to legislative bodies. But another feels that the State Trustee is governed by the Brown Act.
Any guidance you can provide would be very much appreciated. We have 15 days to act on the school district’s decision not to cure and correct our allegation that they violated the Brown Act.
A: I am sorry to hear the troubles facing your school district over the past several years. I am not quite sure that the trustee’s actions in appointment individuals to fill
school board seats would necessarily implicate the Brown Act. True, the Brown Act governs legislative bodies, but only as to their meetings (and requirements related to meetings, such as agendas, notice of meetings, public comment, etc.).
The question posed as to whether the trustee, who is acting in place of the school board, constitutes a “legislative body” is indeed an interesting one. It does seem that the Brown Act was written with multi-member bodies in mind, and if only one person could be considered a “body,” that would create present some interesting scenarios under the Brown Act. Exactly what authority the trustee has, and what he can legally do, may be more a question of education law, which is outside the scope of expertise we can provide through this service.
With respect to the applications that you seek, unfortunately, California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159 (1998), appears to be on point, and may be used as justification to withhold the applications (though, depending on the facts, there may be ways in which the CFAC case could be distinguished from the facts that you are working with in attempting to get the school board applications).
In CFAC, the court found that the two exemptions set forth by the county justifying nondisclosure of the requested records were valid. First, the court found that the correspondence exemption, which exempts from disclosure correspondence “of and to the Governor or employees of the Governor’s office,” id. at 168, quoting Gov’t Code § 6254(l), applied, despite the fact that the records sought were technically applications, not correspondence.
“In our view, the correspondence exemption was intended to protect communications to the Governor and members of the Governor’s staff from correspondents outside of government. … The applications herein from private citizens, like formal letters and other mail from citizens, did not become public records until received by the Governor’s office. Section 6254 permits the Governor to receive such communications in confidence.” Id.
Second, the court found that the “deliberative process exemption” applied, which is relatively amorphous, but may permit nondisclosure of records revealing the deliberations of agency officials, or information relied upon by government officials
in making decisions that they would not otherwise receive if the information were routinely disclosed. Gov’t Code § 6255.
In order to justify nondisclosure under this exemption, a balancing test between the public’s interest in keeping the records from public view vs. disclosing the records must be considered. Despite the argument made by CFAC that “self-disclosed information provided by an applicant … ‘is precisely the kind of factual information that the courts have consistently held is not subject to [the] privilege,’” the court found that in order to encourage candor in such applications, nondisclosure was warranted.
“To assist in evaluating their qualifications, applicants must respond to questions that probe deeply into their personal and political backgrounds.” CFAC, 67 Cal. App. 4th at 171. The Governor, in “delv[ing]” into a particular candidate’s background, is “greatly benefited by an applicant’s candor in disclosing potentially embarrassing facts that may be of only marginal relevance to the person’s ability.” Id. at 172.
Again, the court rejected CFAC’s argument that “[b]ecause they are seeking a position normally decided by the voters, public scrutiny of their qualifications is a natural and critical concomitant of their quest. Indeed, disclosure enhances the decision-making process by providing more information to the Governor on which he can base a decision.” Id. at 173.
The court responded:
We are unmoved by CFAC’s balancing assessment for several reasons. First, there is nothing in the legislative scheme governing appointments to vacant supervisor positions to suggest the Governor must depart from the decisionmaking process he has established for appointment to other offices. As with other appointments, so with supervisor appointments, the Governor is free to consider the sentiments of those affected by the appointment. The fact that the person ultimately selected must later stand for election should make the Governor extremely sensitive to the views of voters in the affected district and ever more mindful of how the appointment will be received by constituent groups. However, the method the Governor uses to gather such information is not restricted by statute; he is not compelled to release a list of prospects for public comment or open his appointment files to public examination. Nor would it appear that such a move would be necessary to assure public input. As CFAC suggests, timidity is not a common characteristic of those seeking the office of county supervisors. It is difficult to imagine that a Governor would lack for public comment from supporters and detractors of supervisor aspirants.
Second, the fact that appointed supervisors are ultimately accountable to the people is not necessarily a compelling reason for disclosure. With respect to county supervisors, the ballot box, not public disclosure of applications, provides the ultimate check
on the Governor’s appointment authority. While other executive appointees wield greater authority over more people than a supervisor in a small county, such appointees are never compelled to appear before the electorate and are never subject to the ”intense
public scrutiny “ that, according to CFAC, attends a county supervisor. After the Governor’s decision making process is complete and the successful applicant is appointed, the press may probe and report on the appointee with all the vigor *174 we expect from our free press. It is difficult to understand how disclosure of information revealed in confidence by unsuccessful applicants for the office advances the cause of open government when the successful applicant must ultimately face the voters in a contested election. Id. at 173-74.
Of course, I think the Court of Appeal got this decision completely wrong. When a single individual, such as the governor or, in your situation, the trustee, gets to make an important decision that is typically left to the voters based on information submitted by candidates about their qualifications, and then can shield that information from public view, this is very troubling.
If a candidate for public office does not want to be scrutinized by the public with respect to his or her qualifications for the job, then that individual should not apply for the vacancy in the first place. Unfortunately, this is the state of the law right now, and unless there is a subsequent case in which the Supreme Court rules the other way, or the decision is overturned by legislation, the residents of a county can be denied any insight into the governor’s appointment process for a vacated supervisor’s seat.
All of this said, you might want to write to the school district attorney asking for an explanation as to exactly how the exemptions from the CFAC decision apply to the applications that you seek. In this way, you can hold the district’s feet to the fire with respect to its justification for withholding the records, and create a paper trail should you ever choose to litigate this or any other aspect of the school district’s operations under the trustee.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.