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Agencies violate public access law

40% in county failed to release documents, with law enforcement the worst offender

By Tamara Koehler, Ventura County Star, March 12, 2006

Ventura Unified School District employees feared for their lives when a young man walked into the office, asked for public records and refused to give his name. He didn't get the records.

When confronted with a similar anonymous request, employees of the tiny Oak Park Unified School District produced the documents promptly — no questions asked.

At the Ojai Police Department, a sergeant told a man asking to review and copy the log of daily calls for police service: "Unless you're a reporter, we don't allow private citizens to see those records."

At the Thousand Oaks Police Department, a free copy of the daily call log was handed over immediately.

From schools to police departments, city halls to special districts, the public's ability to inspect government records is uneven at best in Ventura County, an audit by The Star found. At worst, that access — guaranteed under the state Constitution — depends on policies that violate the law or on the whims of public agency employees.

The audit, conducted during the last week of January, sought to test how average people are treated when they ask for public documents.

A person wanting the daily log of calls to police may want to know if a crime wave of burglaries or car break-ins is occurring in the neighborhood. A parent may want to prepare for a school board meeting on shortening the school day by viewing a consultant's report on the issue. The state Public Records Act says they're entitled to that information.

All told, 91 documents were requested of 51 agencies. About 40 percent of those agencies either denied the request outright or made demands that violated the law.

"As journalists, we know the law and have lawyers to fight for us, yet it's a struggle every day in our jobs to access public records. So what must it be like for ordinary citizens who want to know their government's business? That's why we conducted this audit, and what we found is pretty disheartening," said The Star's editor, Joe Howry.

The issue is an important one to the voting public. In 2004, 83 percent of Californians voting passed a proposition making public access to government information a constitutional right. Under Proposition 59, there is even more of a burden on government agencies to either turn over documents or give legal grounds for withholding information.

A recent nationwide poll by Scripps Howard News Service found Americans overwhelmingly believe that public access to government records and other official information is critical to good government. Most Americans believe that the federal government is closed and secretive.

That's what Steve Schleder of Ventura believes of local government. For years, Schleder has painstakingly tried to piece together the history of Cemetery Memorial Park in Ventura. The struggle for public records has been intense at times, he said, with Schleder at one point going to the Grand Jury over allegations that the city of Ventura withheld information from a file. The grand jury's findings were inconclusive.

"You have to be able to stand up to them and take the position that they are your employees, you are not their's," Schleder said. "The clerks and government officials work for the citizens of this county."

Starting the last week of January, a team of Star journalists fanned out across the county seeking public records such as expense reports, appointment calendars, employment contracts, police blotters and student expulsion rates. To ensure that they were treated as average citizens, the reporters were instructed to give only their first names. If an agency insisted on a last name before turning over the records, the request was considered denied.

Under the California Public Records Act, any member of the public is entitled to inspect public records without providing identification or a reason why the information is sought.

Special district staff and city and county clerks fared the best, turning over documents 80 percent to 100 percent of the time.

School districts and police agencies were the worst offenders, with 46 percent of school districts and 90 percent of police agencies failing to fully comply.

Several agencies insisted that subpoenas were needed to release the information. Others flatly refused to release expense reports or labor contracts, insisting that the documents were not public.

Many denials and delays sprang from the refusal to give a last name or a reason for requesting a document. Several agencies cited policies that required identification.

A request for Sheriff Bob Brooks' travel and credit card expenditures for the last month was denied after 12 days. Sheriff's officials required a letter be written directly to Brooks as well as a full name, address and phone number.

Moorpark Unified School District employees grew suspicious of a request for expulsion rates and the superintendent's contract. A secretary demanded a last name, phone number and employer name first. "Why would we give that to you?" the secretary asked.

In a post-audit interview, Superintendent Frank DePasquale — who has since retired — said he believes that the law requires identification but that he would check with the school district's attorney.

California Newspaper Publishers Association attorney Tom Newton said "suspicion" about who is asking for the documents or why they want them is not a valid legal excuse for denying access.

"The law is very clear — these documents belong to the public, and that means all of the public, even those you don't like the way they look," Newton said.

While the public records act requires state agencies to adopt and post regulations for releasing information, there is no such rule at the local level, Newton said. The result is a hodgepodge of public access at the neighborhood level. The responsibility for making sure that employees follow the Public Records Act lies with top officials — superintendents, city managers, police chiefs, he said.

"Why is this important? Because the people create government institutions. In order to maintain control over government, the people have to have access to the information generated by the government. The government is a mere custodian of the public's records," Newton said.

School districts

Six school districts turned down requests to review a form filed with the state listing student expulsions for carrying weapons on campus. Those same districts also denied requests to inspect and copy the superintendent's employment contract.

Staff members at nearly every district, including many that eventually complied, repeatedly asked reporters: "Why do you want this?" and "Who are you with?"

In the case of Ventura Unified, a newspaper intern's request for documents and refusal to identify himself were viewed as sinister. Nancy Bradford, administrator of support services, thought that it was "strange" that the young man refused to give his name.

His quiet demeanor also frightened Bradford, who works frequently with angry, upset parents, she said.

"That was the most frightening experience I've had in my career. I thought he had a gun. He had his hand behind his back. My job is to protect the superintendent. I didn't know if her address was in the contract and that he didn't plan to go and shoot her or blow the school up. It was a very odd situation," Bradford said.

Superintendent Trudy Tuttle Arriaga said later that Bradford spent hours going over surveillance video to see if the man's face showed up on camera. If it had, Bradford intended to forward the tape to police.

"The request for records became secondary because staff felt something was off and we were put in danger," Arriaga said.

Intern Daniel Miller's written account of the encounter described Bradford as friendly and helpful. He wrote that he simply entered the office and asked politely for the records.

Such a strong reaction, coming from a school district office, was surprising to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va.

"Perhaps if the request had been made at an individual school where children are present and there's heightened awareness of security, I can see that sort of reaction, human nature being what it is these days," Dalglish said. "But at the district office, who you are and what you want the public record for should be no big deal."

At the Ocean View School District in Oxnard, the reporter was told to make an appointment with Superintendent Nancy Carroll to get a copy of her employment contract. Carroll repeatedly questioned why the contract was wanted and how the information would be used.

"It's just that I don't want these documents all over the place without my knowing why," she said.

The school district did, however, comply with the request.

In the case of the Santa Paula Elementary School District, the refusal to give a name or reason was taken in stride. "Even if someone has an agenda and wants the information for that purpose, we're obligated to give it to them, without question," Superintendent Luis Villegas Jr. said.

Villegas said it is critical to have "experienced" employees who know the public records law.

"All of our employees know all the information we have here at the district office is mostly public information," Villegas said. "We work for the public, and we're here to serve the public."

Law enforcement

Police agencies put up the most roadblocks, with nearly all denying requests for call logs and some requiring face-to-face meetings with top law enforcement officials.

A reporter asking for records at the front counter of the Ventura Police Department was told that she would have to meet with Assistant Police Chief Glen "Skip" Young. Eight days later, the meeting took place in Young's office. Young told the reporter that the department did not keep a daily call log and that producing such a document would be onerous.

As for the chief's expense account report, Young said he could produce a copy right away but only if the reporter signed the city's public request form.

"Now I understand you have not been wanting to give your last name; however, we will need that information for this document," Young told the reporter. He added that an address was also required because of the "Homeland Security Act." Some asking for documents, Young said, plan to use them "for not very nice reasons."

City Manager Rick Cole said Ventura does not require that information before releasing public records. He said he would talk to the police chief about the department's response.

"Police officers by nature are trained to follow the law. If they interpreted it more strictly than necessary, that's the kind of thing we're happy to look into," he said.

All but one police agency denied or partially denied access to the day's log of calls for service. The Thousand Oaks Police Department — a Sheriff's Department's contract station — produced the document free of charge without asking questions. The Sheriff's main office responded to the request for its log but provided the wrong documents.

At the Santa Paula police station, a clerk allowed viewing of the call log but no copies because the information could not leave the station.

Steve McKenna, appointed last year as police chief, said the staff has been poorly trained when it comes to public access. "Our record system is not very strong. I've been here a short time, and we're fixing things that are broken. I'll be fixing this, too," he said.

Like McKenna, most police chiefs accepted the audit's findings and promised change.

"I'm glad you brought this to my attention. I'm going to modify our policy," Simi Valley Police Chief Mark Layhew said.

Brooks, who oversees five contract stations in cities throughout the county, said a standard public records policy should be in place. He said he will review the matter.

Cities, county, special districts

City and county clerks who are trained to deal with requests for information complied most frequently.

However, many still required forms and identification, especially when the records requested were not the regular grist such as budgets or board letters.

Several cities make public record request forms available to the public and ask people to fill them out before viewing or copying. Star reporters who filled out the forms gave their first names and an e-mail address.

The Star's audit asked for appointment calendars, expense accounts and conflict-of-interest forms.

City managers became suspicious after talking with each other about the rash of anonymous requests. They speculated that The Star was behind the effort, said Cole, the Ventura city manager.

"We figured it out," Cole said. With so many people coming in with an air of mystery, "it caught our attention."

In Thousand Oaks, a deputy city attorney refused to turn over a copy of the City Council members' appointment calendars or the city manager's expense report unless a full name and address were given.

Patrick Hehir wrote in an e-mail: "I need your full name and address. The City of Thousand Oaks needs to maintain proper records on requesting parties under the California Public Records Act."

After word got out that The Star was behind the requests, the city changed its position.

City Attorney Amy Albano e-mailed the reporter that the records were available for inspection and copying and that a name and address would not be required.

Eight out of 10 special districts responded promptly and completely. The director of an 11th district, South Coast Area Transit, discovered that the requester was a reporter and chastised her for being unprofessional. Deborah Lindham insisted that the reporter give her name and reasons for wanting Lindham's expense account and employment contract. When the reporter refused, Lindham sent her away empty-handed.

"There was this cagey thing; it was never about the records disclosure," Lindham said. "I definitely would have provided the information if this game was not being played."

Government officials don't get to make that decision, according to public record experts.

"Records are public. That doesn't mean there are segments of the public. It's the whole public. And anybody has the right to see public records," said Edwin Guthman, a journalism professor at USC's Annenberg School for Communications and former editor of the Philadelphia Inquirer.

Surprisingly, small special districts with tiny staffs performed better than large ones such as the Ventura County Fire Protection District.

Employees at the fire district in Camarillo said the expense report and employee contract for Fire Chief Bob Roper were confidential, then directed the reporter to the county Human Resources Department 10 miles away in Ventura. A secretary there also denied the request, saying the information was private.

Human Resources Director Barry Zimmerman, after checking with county counsel, said that a mistake was made and that the documents were public record.

Tactics questioned

Some agency officials, such as Cole, said the audit was an "artificial exercise" that measured people's instinctive response to anonymity rather than requests for documents.

"We're used to people, businesspersons, citizens, activists requesting public records, but it's so unusual not to give a name," Cole said. "While it's good to flex democracy's muscles, I don't really think this tells us anything accurately."

Others, like Ventura Unified's Arriaga, questioned The Star's method of conducting the audit.

"It surprised me as a longtime subscriber to The Star. And after working collaboratively with the press on many occasions, this particular mode of operation surprised me," she said.

But public access experts say similar audits in other states and communities have provoked change for the better. As a result, agencies have trained staff, laws have been passed improving public record access, and governments have changed policies.

"These types of audits are extremely beneficial in many ways, and most certainly result in voters having better ideas of what information they're entitled to," Dalglish said.

The Brown Act

California Codes Government Code Section 54950-54963

Open Meeting Laws In California

Throughout California’s history, local legislative bodies have played a vital role in bringing participatory democracy to the citizens of the state. Local legislative bodies - such as boards, councils and commissions - are created in recognition of the fact that several minds are better than one, and that through debate and discussion, the best ideas will emerge. The law which guarantees the public’s right to attend and participate in meetings of local legislative bodies is the Ralph M. Brown Act.

While local legislative bodies generally are required to hold meetings in open forum, the Brown Act recognizes the need, under limited circumstances, for these bodies to meet in private in order to carry out their responsibilities in the best interests of the public. For example, the law contains a personnel exception based on notions of personal privacy, and a pending litigation exception based upon the precept that government agencies should not be disadvantaged in planning litigation strategy.

In addition, access to public records is covered under the CA Public Records Act. For more background see First Amendment Project - Public Records Act. Knowledge of this Act is important to insure proper access to govermental public records not to mention the occasional audit by the media.

Meetings of public bodies must be "open and public," actions may not be secret, and action taken in violation of open meetings laws may be voided. (§§ 54953(a), 54953(c), 54960.1(d))

One requirement of the Brown Act indicates the need for adequate disclosure of agenda items. Read the article below and you decide if the Brown Act was violated.

* Local agencies, including counties, cities, school and special districts. (§ 54951)
* "Legislative bodies" of each agency--the agency's governing body plus "covered boards," that is, any board, commission, committee, task force or other advisory body created by the agency, whether permanent or temporary. (§ 54952(b))
* Any standing committee of a covered board, regardless of number of members. (§ 54952(b))
* Governing Bodies of Non-profit corporations formed by a public agency or which includes a member of a covered board and receives public money from that board. (§ 54952(c))


* ad hoc advisory committees consisting of less than a quorum of the covered board (§54952(b))
* most other non-profit corporations
* All other government agencies. State governmental agencies are covered by the Bagley-Keene Open Meeting Act. (Govt. Code §§ 11120-11132)


A "meeting" is any gathering of a majority of the members of a covered board to hear, discuss, or deliberate on matters within the agency's or board's jurisdiction. (§ 54952.2(a))

Read the article below and you decide if the Brown Act was violated. In this case, a grand jury did find problems with meeting prior to a decision to let go of an employee.

San Francisco School Board was sued when it posted notice for a Special Meeting on Wednesday before a Holiday and held the Special Meeting on a Friday.

Note: No vote or action is required for the gathering to be a meeting, nor must the members meet face to face. (§ 54952.2)

54952.2. (a) As used in this chapter, "meeting" 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.

(b) Except as authorized pursuant to Section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited.

While personnel matters maybe discussed in Closed Session, there are certain actions that must take place in public session, including approval of the superintendent contract. In addition, firing the superintendent requires a public hearing, if requested. The consequences for not conducting a public hearing can be severe. A grey area is the awarding of bonuses and whether or not the vote can be taken in Closed Session and reported out or the vote must take place in public. Apparently, to be safe, this Board decided to recast their in public.

When a board seeks to limit public input, citizens get upset and even sue, even though it is allowed under the Brown Act.

Sometimes, Board member attempt to allege Brown Act violations to shift emphasis away from their own curious behavior.

School attorneys say that the law allows for closed meetings when criteria for evaluation are discussed.


SUSD discussions about candidates may violate law

By Yasmin Assemi, Stockton Record, February 10, 2005

Stockton Unified school board members met in parking lots, talked over the phone and consulted each other outside public meetings before appointing a new school board member Tuesday night.

Those actions likely violated the Brown Act, the state's good-government open-meeting law, according to a media attorney for The Record.

On Tuesday night, the board voted 4-2 to appoint Venice Holladay to a vacant board seat. There was little public discussion before the decision.

"If there was no technical violation of the Brown Act, there was a violation of the spirit of the Brown Act," said Record attorney Rachel Matteo-Boehm.

Holladay replaces Clem Lee, who left the board in December after being elected to the Stockton City Council. Trustees Katrina Rios and Ed Garcia voted against Holladay.

Most Stockton Unified trustees said Wednesday that they had discussed the candidates for the open seat outside public meetings but denied that they had collectively come to a decision about whom to appoint.

Rios denied speaking to any trustees about the candidates outside of public meetings. Yet Trustee Sarah Bowden said she had had phone discussions with board members Rios, Anthony Silva and Glen Dolberg about candidates before Tuesday's meeting.

"There was really no pressure exerted," Bowden said. "Maybe they were trying to exert pressure, but I never felt any pressure except from Clem Lee last night. They just gave me information I didn't necessarily know."

Lee had told the school board Tuesday night that voters might demand a special election if the board didn't appoint a qualified candidate.

The Brown Act forbids "serial meetings," in which officials communicate with each other on public business outside of public meetings, because the officials could develop a "collective concurrence" even without committing to a certain vote. Matteo-Boehm said that when the Stockton school board members discussed the pros and cons of candidates, a collective concurrence could result.

Dolberg said he and other trustees interact outside meetings but don't violate the Brown Act.

"Everybody interacts to some degree," Dolberg said. "It's not against the law to talk to each other."

"(Trustees) called me and I shared some of my views with them," Dolberg said.

Silva said trustees weren't given enough time to publicly discuss the candidates because Lee "came during that period and did all the talking."

The school board's discussion over whom to appoint Tuesday night lasted less than 30 minutes.

"We could have gone around and around," Silva said. "That thing could have taken all night."

Gonzales said board members have discussed issues -- including the candidates -- outside the boardroom but there was never talk or pressure on how to vote, he said.

"I don't want to go to the extent of saying, 'Hey, I want you to support this issue,' " Gonzales said. "But I will bounce things off of people and see where things are going. I think there's nothing wrong with that, and I think that's healthy."

The Record's attorney did not agree.

"It's troubling to me that these conversations occurred," said attorney Matteo-Boehm. "It sounds like a violation."

Trustees said they voted for Holladay because he's a "team player," has common sense and would help the board improve school safety.

Trustees Rios and Garcia both preferred candidate Marcia Knudsen. Garcia was unavailable for comment despite several attempts Wednesday by The Record to reach him.

Brown Act violations weren't the only problem with the appointment process.

According to the San Joaquin County Registrar of Voters, candidate Bruce Kern didn't reside in Area 5 -- a school board requirement for representing the area. He lives in Area 4. The school board never disqualified him.

Silva, the committee chair in charge of the appointment process, said he tried to check candidates' eligibility by consulting maps but never verified their eligibility with the Registrar of Voters.

"I did some checking and somehow that must have eluded me," Silva said. "If he (Kern) was really interested he should have checked."

The board also initially disqualified candidate James Whigham because he's a district employee, but then held a special meeting to interview him on Monday. Whigham never showed up.

Holladay's Area 5 seat represents the region generally bounded by Kensington Way and Baker Street to the west, Wilson Way and Sanguinetti Lane to the east, the Calaveras River to the north and Harding Way to the south. The area also includes parts of the city between North California Street and Baker and Edison streets.

Tuesday night was "the beginnings of dysfunction," Lee said.

"There are agendas at work that are not being made public and not being made visible," Lee said.

Lee emphasized that he has no ill feelings towards Holladay, and wishes him the best.

"I feel he is an innocent victim in all of this," said Lee, whose son attends school in the district.

Dolberg, Silva and Bowden countered that it is actually Lee with a political agenda.

"I was leaning myself to Mrs. Knudsen until there was such an overwhelming campaign suggesting there were other things afoot," Dolberg said.

Holladay said Wednesday he was excited to take over the vacant seat.

"I was kind of thrown a bit by the spirit of it," he said, adding that he was surprised he was chosen over some candidates who had good interviews with the board.

Holladay said he doesn't know any of the board members personally and did not speak with any of them between his interview and Tuesday.

"It was just something I would like to do for my community," he said. "This came up, and I thought I'd give it a shot."

School board told to get transparent

Voters group says educators should embrace spirit of open meetings law

Alameda Times Star, February 25, 2004, Jill Tucker

The Alameda County League of Women Voters chastised the county Board of Education for vague meeting agendas and minutes, saying the trustees were not meeting the intent of the Brown Act.

In a letter to the trustees dated Feb. 17, the chairwoman of the county League identified agenda items that didn't adequately specify potential actions to be taken by the board and meeting minutes that were vague.

For example, Lena Tam wrote, the Jan. 11 agenda listed an item as "Policy and Legislation Committee Meeting for approval of Board Policy 9250, sections 1.A and III, Item D," with no further explanation.

The first policy allows the board to increase its stipend annually by 5 percent, while the second policy gave trustees computers, faxes, phone lines and Internet service at no cost.

The policies were approved.

"The public had no clue that these two important items were to be discussed and approved," Tam wrote.

The letter called on the board to follow the "basic requirements" of the Brown Act, which ensures public access to and information about governmental meetings. Tam also urged the trustees to "go beyond the minimum requirements, and honor the spirit and intent of the act as well."

Board of Education President Yvonne Cerrato said she had seen the letter Wednesday and would be looking into each of the examples cited. The board would formally respond to the League of Women Voters as well, she added.

"Our intent is to be very diligent with the public to make sure they're adequately informed," Cerrato said.

Newark board vote a violation?

Committee told it voted illegally on Ruschin school recommendation

By Linh Tat, Newark Argus, March 15, 2005

A presentation scheduled for tonight from a committee advising the Newark school board whether it should sell Ruschin Elementary has been scrapped.

The decision was made Monday evening after school district officials and committee members were told by The Argus that a media law attorney says the members illegally cast secret ballots on their recommendations.

The committee was formed in 2003 to study whether Ruschin, a 10.11-acre campus worth an estimated $10 million, is surplus property the district should sell.

There were six options — three for keeping the site and three for selling — which committee members individually ranked on a form last month. The ballots then were tallied.

A recommendation to sell the site and use the money for deferred maintenance and capital projects was the most popular, followed by a suggestion to keep the site as is — home to an alternative high school, adult education school and a day care center — and one to keep the site and increase revenue from rents.

Committee member Hank Lewis said members voted by secret ballot, but he does not think the committee violated the state's open meeting law, known as the Brown Act.

"I believe the Brown Act is just to keep elected officials from voting behind closed doors," Lewis said. "(The attorney) can say the committee is an extension of the school board, but we were appointed."

But because the committee was created by the school board, it must adhere to the Brown Act, even if its role is only advisory, said Jim Ewert, legal counsel for the California Newspaper Publishers Association.

"All votes have to be taken openly and publicly, and the public is entitled to know how each and every one of them voted," Ewert said.

Committee Chairman Bob Marshall refused to comment, but according to Superintendent John Bernard, it was Marshall who called off tonight's presentation.

Some committee members also have questioned whether all the ballots should have counted. Two members were absent from the last meeting, andwhile one, Melinda Pickens, turned her ballot in early, the other, Vickie Stephens, sent hers to the district office after the meeting.

Had Stephens' ballot not counted, the top two recommendations would have been to keep the site.

School board Vice President Charlie Mensinger said he asked Bernard on Monday to make sure the committee was satisfied with the process it used to determine its recommendations. Otherwise, he said, he would rather delay reviewing the committee's report.

"(The committee members) need to feel good about the process. If they don't feel good about the process, then I won't feel good about it, and I'll feel like we wasted everybody's time," Mensinger said.


SR school bonuses' legality at issue

2002 failure to note 2 awards in minutes after closed meeting attributed to clerical errors

By Robert Digitale, The Press Democrat , March 19, 2005

During the past four years Santa Rosa school board members voted in closed meetings to award bonuses to two top administrators, actions that in two cases never appeared in minutes of those sessions.

But the board is awaiting a determination from its attorney to see if the votes actually violated state open meetings law.

The board sought legal advice following a complaint to the Sonoma County District Attorney's Office by a school district employee.

"There isn't anybody on the board who believes that anything ought to be done in secret," said board member Bill Carle.

Bonuses given in 2002, one to then-Superintendent Mel Solie and another to Associate Superintendent Doug Bower, don't appear in any board minutes.

But Carle insisted that on each occasion the board members emerged from closed session back into the public forum and made announcements about the bonuses. He said the lack of corroboration in the minutes is due to clerical errors.

Even if the school attorney and the district attorney conclude that the closed session actions violated state public meetings law, the only result may be that the board must take the votes on the years-old bonuses again, this time in public session.

The bonuses total more than $95,000 during the past four years. It is the votes on those bonuses, not the bonuses themselves, that are at issue.

They were first brought to light in spring 2004 by Maxine Stornetta-Smith, a longtime school district secretary. In December she complained to the district attorney that the board had violated the state public meetings law when it voted on the bonuses in closed sessions.

"The public had no idea this was happening," Stornetta-Smith said, referring to a $20,000 bonus awarded to Solie and an $11,067.50 bonus given to Bower.

Her complaint came after she filed a lawsuit against the district in early 2003, alleging that administrators were violating the state Public Records Act by refusing to promptly allow her access to records about personnel actions the board had taken.

The lawsuit was settled in 2003 and Stornetta-Smith was given the public records.

She soon determined that while bonuses were publicly recorded for 2001 and 2003, there was no such record in 2002.

The state meeting law, generally known as the Brown Act, requires most government business to be conducted in public.

The law specifically allows school boards and other government groups to meet in closed session to evaluate the performance of employees.

But such bodies must discuss and decide compensation matters in public, said an attorney for a nonprofit group dealing with government access and free speech issues.

"You can't decide to give a bonus in closed session," said Peter Scheer, executive director of the San Rafael-based First Amendment Coalition. "It has to be done publicly. That's all there is to it."

District Attorney Stephan Passalacqua acknowledged receiving both a complaint against the school board and a response from the district. However, he declined comment on the legality of voting on bonuses in closed session.

"The only thing I can say is that the matter is pending review," Passalacqua said. "We are evaluating this entire matter closely and should hopefully have a decision by the end of this month."

Board minutes from 2001 note that the board gave Solie a bonus of $2,856. As well, bonuses of $22,000 in 2003 and $28,752 in 2004 for Solie are noted in the personnel transaction report.

A 2004 bonus of $11,067.50 for Bower was reported in personnel transactions.

But neither the minutes nor the personnel transactions note a June 12, 2002, bonus of $20,000 for Solie or a Sept. 25, 2002, bonus of $11,067.50 for Bower.

Stornetta-Smith said she learned of those bonuses after asking former board member Jere Jacobs if bonuses had been given in 2002.

Jacobs acknowledged the other bonuses, though not the amounts, in an April 19, 2004, letter.

To address the reporting issue, the board earlier this month was scheduled to vote on revising its old minutes from 2002. But board members postponed the action.

School attorney Andy Wick said school officials have assured him that after each of the 2002 votes the board disclosed the bonuses publicly.

Usually such an announcement takes place to an empty meeting room, but it is a requirement of state law.

Wick said he is analyzing the meeting law's requirements on bonuses.


Votes taken in secret to be recast

School board granted bonuses in closed sessions; D.A. reviewing actions

By Robert Digitale, The Press Democrat , April 8, 2005

Santa Rosa school board members are scheduled next week to vote publicly on staff bonuses that were previously approved behind closed doors in apparent violation of the state public meetings law.

The action will correct votes taken during the past four years. But school officials are refusing to explain why the votes are needed and instead are referring questions to school board attorney Andy Wick.

Wick was unavailable for comment Thursday and school officials claimed attorney-client privilege in refusing to release an opinion Wick drafted.

Board President Frank Pugh acknowledged the past board actions on the bonuses "need to be fixed" but he deflected questions on whether the board violated state law by granting them in closed session.

"I guess I would have to wait and see what the district attorney would say to that issue," Pugh said, referring to a review of the past votes by Sonoma County District Attorney Stephan Passalacqua. That review followed a complaint by a longtime district employee.

The board is slated to vote again Wednesday on four bonuses previously approved to two top administrators, former Superintendent Mel Solie, who retired last year, and current Associate Superintendent Doug Bower.

During the past four years the school board members voted in closed meetings to award six bonuses. In two cases the board's actions never appeared in minutes or related personnel reports.

The six bonuses total more than $95,000.

The employee who raised the complaint, Maxine Stornetta-Smith, maintains that state law requires school boards to vote on bonuses and other compensation matters in public session. Her complaint to the district attorney deals with the legality of votes on the bonuses, not the bonuses themselves.

Passalacqua said earlier this week that he expected to conclude his review of the matter soon, possibly by next week.

It remained unclear Thursday why the board was scheduled to vote on only four of the six bonuses. The two bonuses not slated for new action Wednesday were awarded in closed session last August.

"Why would they only do four of the six?" asked Stornetta-Smith. She said she would await Passalacqua's review before making further comment.

Pugh referred questions on the remaining two bonuses to the school district's attorney. But he said of the four other bonuses, the attorney had concluded "those are the ones that have a problem."

In bringing the bonuses to light, Stornetta-Smith previously had filed a lawsuit against the district, alleging that administrators were failing to promptly make available the personnel actions the board had taken.

After that suit was settled, Stornetta-Smith received the public records and soon discovered that bonuses were recorded in 2001 and 2003, but there were no records for bonuses handed out in 2002. School officials eventually acknowledged the board that year gave a $20,000 bonus to Solie and a bonus of $11,067.50 to Bower.

Wick, the school district's attorney, previously has said that even if the board failed to follow the law, the only action needed was to have the elected officials take the votes on the bonuses again, this time in open session.


Appeals court agrees Rio board erred

By John Scheibe,, January 27, 2006

The 2nd District Court of Appeal in Ventura this week upheld a judge's decision that Rio School District trustees violated the state's open-meeting law when they voted 2 years ago to fire Superintendent Yolanda Benitez.

The court would not, however, order the district to give Benitez back pay. Instead, it ruled that Ventura County Superior Court Judge Henry Walsh erred in ordering the district to give back pay and benefits to Benitez. But it left the door open for Benitez to seek back pay and benefits through a lawsuit she filed in Superior Court.

Benitez, reached by telephone in Los Angeles, where she works as an education consultant, said she was ecstatic over the court's decision.

"I always knew we were going to win," Benitez said.

Benitez could be owed as much as $445,000 in back pay and benefits, said Nick Calderon, one of her attorneys. The Court of Appeal also ruled that Benitez is entitled to attorney fees and costs related to her legal defense that the district violated the Brown Act — the state's open-meeting law.

Esau Herrera, an attorney for the district, said trustees will discuss what to do next when they meet behind closed doors on Feb. 2.

Trustees placed Benitez on administrative leave during a closed-door meeting in March 2003, nearly eight years after she was hired to lead the often troubled school district. Their action came after the board received complaints alleging Benitez was abusing the district's bilingual education program. Benitez said the meeting violated the Brown Act because the board failed to notify her that it was considering taking disciplinary action.

Trustees voted 3-2 behind closed doors three months later to fire Benitez, even though she'd asked that they discuss her employment in public.

The district argued that Benitez was not entitled to a public hearing because the action to fire her was based on an internal investigation of her job performance.

Judge Walsh agreed that the district had violated the Brown Act. The district appealed Walsh's decision.

Benitez brought a separate lawsuit against the district, alleging that it violated her civil rights and her right to privacy, Calderon said. The lawsuit also alleges that the district owes Benitez back pay, since the board failed to follow the Brown Act when it voted to fire her, Calderon said. Benitez is alleging in another lawsuit that she's owed 28 days of vacation pay, Calderon said.

Those lawsuits were put on hold until the Court of Appeal decided whether the district violated the Brown Act, Calderon said. He said those lawsuits can now proceed.

Calderon said he fully expects Benitez will prevail in court, given the Court of Appeal's decision. Still, Calderon said, he hopes the district will agree to settle the two remaining lawsuits out of court.

Trustee Simon Ayala, who voted not to fire Benitez in 2003, said on Thursday he was saddened that the district has spent so much time and money on this case.

"Much of it has been a political vendetta against Mrs. Benitez to ruin her reputation," said Ayala, who now serves as the board's president. He said he hopes the district will settle with Benitez out of court, rather than spend more time and money on the case.

"I also want an investigation so that those who are responsible for all of this be held accountable," he said.

Trustee Henrietta Macias, who voted to fire Benitez, said the Court of Appeal's decision was a loss for Benitez, not the district.

"She got no back pay, she got zero," Macias said. As to an out-of-court settlement, Macias said she would be against it.

"Let her go to court; she won't win."


Rio District to pay $1.4 million to Benitez, attorneys

By John Scheibe,, March 14, 2006

A deeply divided Rio School District board voted 3-2 Monday night to settle a long-standing and bitter lawsuit with its former superintendent by paying her and her attorneys nearly $1.4 million.

Under the agreement reached Monday night, Yolanda Benitez will receive $740,900. The breakdown is $380,900 for employment contract damages, $35,000 for accrued unpaid vacation, and $325,000 to settle a civil lawsuit. In addition, the district agreed to pay Benitez's attorneys $650,000 in fees.

Since July 1, the district has paid its own attorneys about $50,000. The amount from previous years was unavailable. Monday's vote came after a nearly five-hour meeting in which many speakers implored trustees not to settle with Benitez but continue the fight.

In the end, a majority of the board, including Trustee Ken Ortega, agreed the district would only dig itself into a deeper hole should it continue to battle Benitez.

"I don't see us winning in court," Ortega said. "We've already lost this case."

Trustee Ron Mosqueda disagreed.

"I didn't take an oath of office to give away public funds," Mosqueda said. "I'm not going to give away a penny without a fight."

Benitez was glad the battle has ended.

"I'm happy that this is over and that I can go on with my career, and the district can go on with its business of educating children," she said by telephone from her home late Monday.

The board fired Benitez in June 2003, after a series of allegations were brought against her, including that she cost the district millions of dollars through mismanagement.

Benitez, who'd served as superintendent of the struggling school district for eight years, filed a wrongful-termination lawsuit, accusing the district of damaging her reputation and violating her constitutional rights.

Benitez also filed another lawsuit, alleging the board had violated the state's open-meeting law — the Brown Act — when it placed her on administrative leave during a closed-door meeting months before she was fired.

School trustee says board met illegally

Complaint against Orange Unified goes to state and county officials

By Erica Perez, Orange County Register, February 27, 2006

ORANGE – Steve Rocco, the school trustee who shuns closed-door meetings and often abstains from voting, has filed a complaint with county and state officials against his fellow trustees, the district administration and others.

Rocco's Feb. 5 letter says Orange Unified School District trustees met illegally Feb. 10, 2005, to reprimand him and the district unfairly denied him stationery.

The letter was addressed to the attorney general, the Fair Political Practices Commission, the Orange County grand jury, the secretary of state and the District Attorney's Office.

"THE PARTNERSHIP has come to the Orange U.S.D.," Rocco wrote in a three-page, typewritten letter. He refused to talk to a reporter Tuesday.

Superintendent Tom Godley said no law was broken.

Since Rocco won his seat in November 2004 against a better-funded opponent, he has given a few monologues referring to the "partnership" - business and political leaders he says conspire against him.

Trustee Kathy Moffat said the board never met illegally. Members reconvened in closed session after an open meeting to finish the night's business.

"If Mr. Rocco had not chosen of his own volition to abstain from those meetings, he would be right on board," she said.

Trustees can use district stationery if they have board approval or are writing letters of recommendation, according to a Dec. 8, 2005, policy.

The District Attorney's Office is reviewing the letter, said Deputy District Attorney Susan Schroeder.

Time Limits on Public Comments

By Eleeza V. Agopian, Orange County Register , March 13, 2006

clipped from end of article on budget cuts for Los Alamitos School District

Many parents and teachers have been critical of how the board has handled the budget cuts. A petition signed by 400 parents and teachers was presented to the board to protest the 45-minute limit on public comments at the Feb. 23 meeting. The petition alleges that the board violated the state Brown Act, which regulates public meetings.

Hart said the board's rules allow for 30 minutes of public comment at each meeting. She said that was extended to 50 minutes Feb. 23.

Terry Francke, general counsel for Californians Aware, a watchdog organization, said public agencies can reasonably limit comment provided that the limits are based on time constraints and not content.

Closed CUSD meeting draws criticism

Worst example of meeting-law violation in 25 years, attorney says

By Sam Miller, Orange County Register , July 27, 2006

One of the state's foremost experts on open-meetings law called Capistrano Unified the worst violator he has seen in 25 years and called for the district attorney to file charges.

Terry Francke, general counsel for Californians Aware, reviewed staff notes on a closed-session meeting held last July 30.

"This seems to be one case for drawing a line in the sand," he said. "This is the worst example of a Brown Act violation in closed session I have ever seen in 25 years."

Superintendent James Fleming said the district holds closed-session meetings twice yearly to consider criteria for his evaluation.

He defended the meetings, citing a 2001 court case out of Coalinga that, he said, allows for closed discussion of "criteria for evaluation."

School attorneys say that the law allows for closed meetings when criteria for evaluation are discussed.

"It's pretty broad in its interpretation," said Warren Kinsler, a Cerritos attorney who represents school districts in Orange County, but not CUSD.

Discussing the criteria for evaluation, he said, often includes evaluating past performance. If an issue or request may be used as criteria for a superintendent's evaluation, it can be discussed in closed session.

Said Fleming: "We've been doing this for 15 years. … It's based on a good-faith interpretation of the Fresno decision."

Francke and Peter Scheer, executive director of the California First Amendment Coalition, reviewed the meeting notes, which show that trustees discussed such topics as:

* which school calendar to adopt
* whether to advertise on school buses
* a presentation on No Child Left Behind

"Any reasonable person looking at these minutes would be unlikely to come away thinking he had just observed a performance evaluation," Scheer said. "He'd come away thinking he'd just seen what most people would call a school board meeting."

No actions were taken at the meeting. Trustees made suggestions and requested staff action. Some issues were later considered in open sessions.

Each topic, Fleming said, related to the objectives he would be judged on. For instance, the board discussed requiring that the public communicate with CUSD only through postal mail to deal with an "e-mail explosion."

"Could we have done that in open discussion? Sure, somebody could argue. But because it related to my performance as superintendent," he said, it was a valid closed session.

Not so, said Scheer and Francke.

"I don't see any noted discussion on the superintendent's performance whatsoever," Francke said.

Fleming announced his intention to retire last week after criticism over a list of recall supporters compiled by the district.

Teri Morelli of Laguna Niguel said she and other parents will go to the State Board of Education in September to complain about CUSD's meetings.

"I'm at my wit's end with all this stuff," she said.

Capistrano Unified Is Sued for Alleged Violation of Open-Meetings Law

A gadfly says trustees, in a closed session, conspired to limit his speech at meetings

By Seema Mehta, Los Angeles Times, August 1, 2006

An outspoken retired teacher sued the Capistrano Unified School District on Monday, accusing its trustees and superintendent of conspiring to curtail his ability to speak at public school board meetings.

Ron Lackey, who lives in Monarch Beach, attends every board meeting and regularly speaks on agenda items related to district spending.

In the suit, filed in Orange County Superior Court in Santa Ana, Lackey alleges that the district violated the state's open-meetings law by discussing inappropriate matters — including how to silence him — during a closed-session meeting. He is seeking a declaration that the trustees violated the Brown Act, wants an order requiring the board to videotape future closed meetings, and wants to be reimbursed for his attorney's fees.

"It's a mess down here," said Lackey, who plans to run for the school board in November. "The kids do very well, and we've got great teachers. Why we've got this cancer at the district office, I don't know."

Lackey did not teach in the district, but has taught at schools across Southern California and in New York.

Supt. James Fleming, who announced his resignation last month, said the allegations were baseless. "I find it ironic that a man who comes to just about every board meeting to complain about how much we have to spend on attorneys is filing a lawsuit against us so we'll have to spend more on attorneys."

The state's Brown Act allows elected officials to meet in closed-session in strictly limited circumstances, such as employee evaluations and labor negotiations.

A July 30, 2005, meeting was held to discuss Fleming's performance evaluation. But a document summarizing the meeting lists topics such as the school-year calendar, parental fundraising and advertising on school buses.

The first item on the minutes, labeled "School Board Meeting Conduct Protocol," notes "In general board members want to start to limit Ron Lackey and the amount of items he can address. Suggest that the board go back to only allowing members of the public to address two items as stated in board policy."

Fleming said the items listed were potential topics of his plan for the upcoming school year, and as such are allowed to be discussed in closed session because they could form the basis for his next evaluation.

Trustee Duane E. Stiff said he had never witnessed any Brown Act violations. "I have no idea what [Lackey] is talking about," Stiff said.

Trustees Shelia J. Henness and Sheila J. Benecke declined to comment.

Attempts to reach district counsel David Larsen or trustees Marlene M. Draper, John Casabianca, Crystal Kochendorfer and Mike Darnold were unsuccessful.

Investigation clears Delhi school board

By Leslie Albrecht, Modesto Sun-Star, August 3, 2006

MERCED — The Merced County district attorney will not press criminal charges against the Delhi Unified School District board of trustees. The district attorney's office was looking into whether the Delhi board violated the Brown Act, a state law that guarantees public access to government meetings.

The 2005-2006 Merced County grand jury found that the Delhi board may have violated the law, and requested an investigation by the district attorney.

An investigation found no criminal wrongdoing, said Deputy District Attorney Mark Bacciarini.

"To be criminal, it's a very specific violation, but we just didn't see it (based) on these facts," Bacciarini said.

The allegations centered on a meeting that five school board members allegedly held at a Delhi pizza restaurant hours before they voted to dismiss Delhi High School Principal George Grijalva on Oct. 25, 2005.

Bacciarini said the meeting would only qualify as a criminal violation if the board members had taken some action — such as voting on board business — while they were at the restaurant, but there was no evidence to support that.

The grand jury recommended that the board's vote to dismiss Grijalva be declared "null and void," but Bacciarini said he couldn't address that recommendation because too much time had passed since the meeting.

The district attorney's office agreed with the grand jury's recommendation that the Delhi board keep better meeting minutes and do a better job of notifying the public about meetings.

Delhi board President Stephen Selph said he agreed with the district attorney's findings.

"As far as I'm concerned, there was no violation and no charges to file, so I agree with (the district attorney's) decision," he said.

But former Principal Grijalva called the decision a setback for the Delhi community.

"It's unfortunate that the people from Delhi are requesting help and they're not getting any help from anyone, and the corruption will continue," Grijalva said.

It was Grijalva who filed the complaint with the grand jury. After the Delhi school board voted to dismiss him, about 500 of Delhi's 600 students walked out of class in protest and angry parents and teachers confronted the board.

Board members refused to say why they voted to remove Grijalva, citing confidentiality laws surrounding personnel issues.

Grijalva finished the year at Delhi. The new principal, Michael Horwood, started work Monday.

Superintendent Bill Baltazar said the district is ready to put the episode behind it.

"We have a new principal and we're moving forward," Baltazar said. "We're not dwelling on the past, and I think everyone is ready to do that."

But Grijalva isn't giving up.

He has started a new job as a counselor at Turlock High School, but the 2006-2007 grand jury is investigating another complaint he filed against Baltazar.


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