[UPDATED with District Response:] Capistrano Unified School District Board Accused by DA of Violating State Open Meeting Law
Here is the response issued through Marcus E. Walton, the San Juan Capistrano-based district's chief communications officer:
"Our attorneys have not yet been able to review the District Attorney's letter, but under the District's new leadership, our practice has been to cure any alleged violations."
ORIGINAL POST, MAY 6, 1:22 P.M.: The Orange County District Attorney's office (OCDA) has sent a letter to the Capistrano Unified School District alleging its Board of Trustees has committed "multiple violations" of the state's open-meeting law.
The letter to district Superintendent Joseph M. Farley concerning three separate alleged violations of California's Ralph M. Brown Act is signed by Senior Deputy District Attorney Raymond S. Armstrong of the Special Prosecutions Unit and Senior Assistant District Attorney William J. Feccia of Special Projects.
Here is a copy of the CUSD Brown Act violation letter.
|Joseph M. Farley|
The Board is accused of violating the Brown Act at a special Dec. 13, 2010, meeting behind closed doors. The posted topic was "Public Employee Performance Evaluation-Superintendent," but, according to the OCDA, trustees discussed topics outside the scope of that title by authorizing Farley to reinstate two previously mandated furlough days for teachers and staff.
That, the OCDA insists, did not measure up to the government definition of "performance evaluation," which generally involves judging whether an employee's performance is satisfactory and establishing goals for future improvement. And under the state law, union representatives should have been brought into the discussion of furlough days, according to the letter.
The board also failed to meet standards for disclosing what would be discussed beforehand and for informing the public what action was taken behind closed doors afterward, the OCDA claims.
A second violation occurred at a special meeting this past Jan. 26, when the board met in closed session to reinstate teacher salaries under an agenda item labeled "Conference with Labor Negotiators." Again, the district's designated labor representative was not present, as required by law, and inadequate public notice was given before and after the action was taken, according to the OCDA.
The letter states:
The conduct of the Board at this meeting in not properly noticing the topic deprived the public of an opportunity to comment on the proposed action before or at the time the action was taken as required by Govt. Code §§54954.3 and 3547. [The Board's subsequent failure to apprise the public of its action and the issuance of minutes that incorrectly stated that no action had been taken, served to hide the nature of the action taken.]
A third violation occurred March 16, the OCDA claims, when in the middle of an open meeting discussion on an agenda item, board members held a brief recess out of public earshot to discuss an item that had previously been motioned and seconded in open. The board reconvened and voted on a substitute motion. The letter states:
During the recess, the remaining trustees present, Jack Brick, Gary Pritchard, John Alpay, Anna Bryson and Lynn Hatton, a clear quorum of the Board, conferred amongst themselves "off the record," behind the dais, and outside of the hearing of the public attendees. The meeting then resumed and Trustee Brick withdrew his second to the substitute motion offered by Trustee John Alpay.
"While there is insufficient evidence, at this time, to conclude that any of these violations are criminal in nature, the failure of the Capistrano Unified School District's Board Trustees to comply with the provisions of the Brown Act, the actions of the Board, as detailed above, constitute a pattern of conduct which is similar to past violations of the Board," concludes the OCDA letter. ". . . It is the position of the District Attorney that this practice of the Board violates the Brown Act and must cease forthwith."
Included in the letter is an excerpt from an Oct. 23, 2007, communique the OCDA received from Capistrano Unified's then-superintendent, who promised the district and board would halt with the kind of open-meeting law violations identified anew by the district attorney.
"Henceforth the Capistrano Unified School Board will diligently guard against Brown Act violations," concluded that letter.