This action might not be possible to undo. Are you sure you want to continue?
Office of the District Attorney
MICHAEL A. RAMOS, District Attorney
March 1, 2012
VIA FIRST CLASS MAIL AND EMAIL Cathie L. Fields, Esq. Atkinson, Andelson, Loya, Ruud & Romo 20 Pacifica, Suite 400 Irvine, CA 92618 Re: Complaint re: Etiwanda School District Violation of Brown Act; Our File No. PI647 Dear Ms. Fields: As you know, our Office has received a complaint alleging that on December 15, 2011, the Etiwanda School District Board of Trustees (the “Board of Trustees”) violated the Brown Act, specifically Government Code §54954.2, by failing to properly describe items on the closed session agenda. To investigate the complaint, we have considered the Complainant’s allegations, the agenda for the December 15, 2011 meeting, the minutes for the meeting, your letter of December 22, 2011 to Terry Franke, General Counsel of Californians Aware, a telephonic conversation I had with you, a review of previous and subsequent Board of Trustees agendas, and relevant legal authorities. As explained below, it is our opinion that the Board of Trustees’ December 15, 2011 closed session agenda failed to meet the requirements of the Brown Act. Specifically, item “A” of the December 15, 2011 closed session agenda gave notice to the general public that during its closed session, the Board of Trustees would consider: “Personnel: appointment, employment, contract renewal, assignment, transfer, promotion, demotion, discipline, dismissal, resignation, retirement, leave, outof-class pay, termination, nonreelect, suspension, release of service, release of administrative assignment and/or any other action affecting employment status (Government Code section 54957).”
Page 1 of 5
It is our understanding that prior to the Board of Trustees going into closed session on December 15, 2011, each Trustee was given a copy of a December 15, 2011 email from Terry Francke, General Counsel for Californians Aware. In his email, Mr. Francke objected to the Board of Trustees’ “grossly uninformative notice” and stated “[t]he closed session justification comes nowhere near the safe harbor provisions in the Brown Act…”. It is our understanding that despite Mr. Francke’s email, the Board of Trustees chose to go forward with the closed session meeting. According to the minutes of the Board of Trustees’ December 15, 2011meeting, during the closed session the Board of Trustees “…approved a resignation and release agreement with a permanent certificated employee…”. In your letter of December 22, 2011 to Mr. Francke, you wrote that “[t]he Board of Trustees’ agenda for its December 15, 2011 special meeting was in substantial compliance with the Brown Act.” In essence, you contended that the list of items contained in the December 15, 2011 closed session agenda included information that gave the general public notice that the Board would be considering “a resignation and settlement agreement for an employee.” We respectfully disagree. Government Code §54954.2(a) provides, in its relevant part: “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” (Emphasis added.) By its plain terms, Gov. Code §54954.2(a) required the Board of Trustees to give a description of “each item of business to be transacted or discussed,” not a long list of items the Board of Trustees had no intention of addressing in which the Board of Trustees also inserted the one item the Board actually intended to address. Our interpretation of the Brown Act is supported by the intent of the Brown Act, the actual language of the Brown Act and by case law. First, the intent of the Brown Act is that legislative bodies’ “actions be taken openly and that their deliberations be conducted openly.” Inserting the one item the Board of Trustees intended to consider within a long list of items the Board of Trustees had no intention to consider violated the intent and spirit of the Brown Act. Second, as Mr. Francke correctly pointed out in his December 15, 2011 email, Government Code §54954.5 sets forth “safe harbor” closed session agenda descriptions for personnel matters, providing in its relevant parts: “For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section
Page 2 of 5
54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format. *** (e) With respect to every item of business to be discussed in closed session pursuant to Section 54957: THREAT TO PUBLIC SERVICES OR FACILITIES Consultation with: (Specify name of law enforcement agency and title of officer, or name of applicable agency representative and title) PUBLIC EMPLOYEE APPOINTMENT Title: (Specify description of position to be filled) PUBLIC EMPLOYMENT Title: (Specify description of position to be filled) PUBLIC EMPLOYEE PERFORMANCE EVALUATION Title: (Specify position title of employee being reviewed) PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE (No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes potential reduction of compensation.)” While Gov. Code §54954.5 requires only “substantial compliance” “irrespective of format,” §54954.5 contemplates that separate descriptions of items the Board of Trustees actually intends to address will be reflected in the closed session agenda. Nothing in 54954.5 supports the Board of Trustees’ practice of, as Mr. Francke put it, “[l]umping every conceivable wording into the closed session notice…”. Finally, case law supports our interpretation of the Brown Act. Specifically, in Moreno v. City of King (2005) 127 Cal.App.4th 17, the plaintiff, Moreno, was fired as the finance director for the City of King after the City Council met in a closed session meeting about his job. The agenda for the City Council’s closed session meeting stated only: “Per Government Code Section 54957: Public Employee (employment contract).”
Page 3 of 5
Testimony established that the City Council discussed firing Moreno and hiring his replacement during the closed session meeting. The trial court found many Brown Act violations, including a violation of §54954.2. The appellate court upheld the trial court’s finding, writing at 26-27: “Second, the City argues that the trial court erred in finding that the agenda was not an adequate specification or description of the business that was transacted at the October 17 meeting. The agenda described the business as ‘Public Employee (employment contract).’ It was undisputed that at least a quarter of the meeting was actually devoted to a discussion of Moreno and whether to terminate him based on Breskin's memorandum. The agenda's description provided no clue that the dismissal of a public employee would be discussed at the meeting. The City argues that further specification would have violated Moreno's privacy rights. Not so. As section 54954.5 illustrates, an agenda that said simply ‘Public Employee Dismissal’ would have provided adequate public notice of a closed session at which the Council would consider Moreno's dismissal.” (Emphasis added.) Just as the City of King’s closed session agenda description - “Per Government Code Section 54957: Public Employee (employment contract)” - gave the public “no clue” of what would occur in the closed session meeting, the Board of Trustees’ December 15, 2011 agenda also left the public with “no clue.” Instead, just as the public was left to wonder what would be done with a public employee’s employment contract in the Moreno v. City of King case, here, the public was left to wonder which of the following items would be considered by the Board of Trustees at their December 15, 2011 meeting: “Personnel: appointment, employment, contract renewal, assignment, transfer, promotion, demotion, discipline, dismissal, resignation, retirement, leave, outof-class pay, termination, nonreelect, suspension, release of service, release of administrative assignment and/or any other action affecting employment status (Government Code section 54957).” The public was given “no clue” that the Board of Trustees had no intention of considering the vast majority of the items on that list or which item in that list the Board of Trustees actually intended to address. Given the above, it is our opinion the Board of Trustees’ December 15, 2011 closed session agenda failed to comply with the Brown Act. Despite your claim that the December 15, 2011 agenda substantially complied with the Brown Act, in your December 22, 2011 letter to Mr. Francke, you also represented that in the future the Board of Trustees “will utilize only the safe harbor language for personnel matters discussed in closed session.” During our telephone call, you made a similar statement to me. Based upon your representation that the Board will not repeat its above-described practice, but will instead rely upon the “safe harbor” descriptions provided by Government Code 54954.5, we will consider this matter closed.
Page 4 of 5
We note, however, that for the reasons discussed above, we disagree with your position that the Board of Trustees’ December 15, 2011 agenda substantially complied with the Brown Act. We believe the facts and law make clear that the agenda was in violation of the Brown Act. However, we appreciate the Board of Trustees’ willingness to follow better practices in the future. Sincerely,
MICHAEL ABNEY Deputy District Attorney Public Integrity Unit 303 West 3rd Street San Bernardino, CA 92415-0511 Cc: Terry Francke, Esq., General Counsel for Californians Aware
Page 5 of 5
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.