School Board Must Tape Itself

After finding that Orange Unified School District trustees illegally discussed a land deal behind closed doors in 2001, a judge has ordered the board to tape-record its private meetings for three years to guard against a recurrence.

The Dec. 12 ruling came after an appeals court decided that an activist from outside the district had the right to pursue a case against the board.

Orange County Superior Court Judge Andrew P. Banks ruled that school board members had violated elements of the state’s Ralph M. Brown Act, which limits what elected officials can discuss in private session.

At issue was an August 2001 closed session in which the board discussed its hopes of buying a strip of county-owned land to build an access road into Barham Ranch -- more than 500 undeveloped acres owned at the time by the school district. At three previous private meetings, the board had also considered a possible lawsuit against the county to contest a proposed ordinance that would have made such a purchase difficult.

The discussions were challenged by Richard McKee, president of the California First Amendment Coalition, a Sacramento-based organization of activists and journalists that lobbies for public access to government records and meetings.

McKee argued that the board violated the law by giving the impression on its August agenda that it was discussing the sale of the property to the county. The talk of a possible lawsuit against the county also violated the act, he said, because no ordinance had been passed and the law restricts closed-door discussions to actual -- not potential -- lawsuits. McKee wrote the board demanding that it repeat the discussion in open session, and sued after it refused to do so.

Before McKee was allowed to make his case, however, Banks told him that he had no right to sue the school district because he is not an Orange County resident. McKee, who lives in Los Angeles County, said his interest in the board was roused after local activists told him of potential Brown Act violations.

A California appeals court reversed the decision, ruling that every California citizen has the standing to challenge suspected Brown Act violations, regardless of where they occur. The appellate judges then returned the case to Banks, who found that the board had intentionally deceived the public.

But Robert Viviano, a 13-year member of the board who was president when the meetings occurred, said, “There was no intent to prevent the public from knowing what was taking place.”

Bill Lewis, another longtime board member, agreed with Viviano, but also described a board majority in 2001 that paid little attention to the Brown Act.

“The old [majority] violated the Brown Act all the time,” Lewis said. “They brought up whatever they wanted, whenever they wanted.”

Trustees said the board will discuss -- in closed session -- whether to appeal the decision at the next meeting in January.

The ruling is the latest disruption for a school board that in recent years has been immersed in controversy.

Along with a contentious 2001 recall of three trustees, the board has battled its teachers over contracts.

The judge’s order, unless overturned on appeal, will force the board to record all of its private sessions -- a remedy that is rarely ordered, according to McKee.