As if you asked
Being an incumbent carries certain campaign advantages. The
inclination of voters to reelect has always smoothed the way for
cash and endorsements. (Why many of the same voters simultaneously
insist on term limits is one of life’s mysteries.) But the three
members of Burbank’s school board running for reelection are
inventing new advantages.
As we saw last month, school district staff can whip up a
televised report to refute criticisms of the board being trumpeted by
election challengers. But forget that puny example, because this week
the board put on an even bigger show! Richard Currier, the attorney
handling the lawsuit brought by former Supt. Dave Aponik, gave what
to my recollection is the district’s first public briefing on an
ongoing lawsuit, including information on his legal advice.
A judge’s ruling came down Jan. 21, but for some mysterious reason
the district’s lawyer, Currier, couldn’t get board members or staff a
copy of the order earlier. Instead, as if racing in from the
courtroom, Thursday night he went to the podium with copies for
everyone of a judicial order that’s almost three weeks old.
The orders granted district motions to dismiss several facets of
Aponik’s suit, and it was fascinating to hear Currier’s
characterizations of the rulings. For example, Currier said the judge
concluded the board hasn’t violated a body of open meeting laws
called the “Brown Act” and that, in fact, “Dr. Aponik didn’t comply
with the Brown Act.”
What the judge actually said in that regard was that, among other
shortcomings, Aponik didn’t follow the procedure spelled out in the
Brown Act for advancing claims of a violation. The law requires a
complainant to send, within a certain amount of time, a written
complaint to the officials who have supposedly met illegally, giving
them an opportunity to correct or “cure” the alleged violation. Only
after that step has failed does the law allow a civil plaintiff’s
charge to move forward.
Incredibly, Aponik and his lawyer apparently failed to complete
that first step, and the result was predictable. Nonetheless, given
Currier’s amazing report, which even included announcing in open
session that Aponik has made a settlement offer that would probably
be rejected, it became clear he sure wants to see his three favorite
incumbents vindicated and reelected.
Aside from wielding swords like that, there are innocent benefits
to incumbency. By virtue of having attended meetings for four years,
incumbents often excel at fielding questions on the campaign trail.
But board members Elena Hubbell, Mike McDonald and Richard Raad are
employing a novel tool available only to them, using incumbency to
exempt themselves from answering some questions.
In recent years, the Leader has burdened candidates for all local
offices with a questionnaire tailored to the office sought. They’re
notorious, sometimes with as many as 45 questions to aid in comparing
candidates. Some questions are asked every season. Others are
specific to issues in the election at hand. Every candidate for a
given office gets the same questions.
This year’s forms included questions tied to debates arising since
the last election. For board candidates, that meant asking each to
spell out opinions about officials talking among themselves
informally and in private about district issues.
The laws compelling officials to meet in public does include
exceptions. Officials are allowed -- in some cases even required --
to meet in private when discussing certain personnel matters,
litigation or property negotiations. They’re still required to tell
us the talks are taking place, and to give citizens a chance to
comment at meetings before the officials go behind closed doors.
Among other accusations, Aponik charged that board members violated
those laws. But the candidate questionnaire didn’t delve into the
situations Aponik alleged, or ask candidates for interpretations of
law. Why bother asking an incumbent, “Did you break the law?”
Instead, all board candidates were given the same six scenarios,
each based on the same premise. We described three or more of the
five- member board chatting in a grocery store, or in a series of
e-mails or phone calls, and talking about a particular issue. The
only variable in the scenarios was the subjects discussed.
One scenario had officials talking about a proposed school
program. Whether in exchanges over a period of days, or in just
minutes, the trio agree there aren’t funds to pay for it, and so it
would be a waste of time to discuss it in an upcoming meeting.
Another had officials finding a majority believe another idea is
affordable, and worth discussing. Another scenario proposed a
majority chatting or e-mailing among themselves and coming to realize
each has concerns about an employee’s work. They agree to put
discussion of the worker on an agenda for a confidential session.
There’s another reason candidates were not asked if the talks
described are legal. It may be legal for a board member to disrupt
meetings by berating colleagues with vulgar expletives. But if such
behavior among sitting board members became an issue, voters might
ask whether candidates believe it’s appropriate behavior. Similarly,
in this year’s questionnaire, candidates were only asked whether they
thought the behavior in each scenario was “appropriate” or
The incumbents refused to answer. And who could be surprised that
each gave virtually identical explanations for their refusal?
“I cannot comment on these questions due to current litigation
that is ongoing,” Raad wrote. Hubbell and McDonald gave the same
answer with rearranged wording. Raad and Hubbell added that the board
has not broken the law.
Aponik’s lawsuit, the one that had the board’s lawyer talking at a
public meeting and revealing his settlement recommendations, was
apparently an excuse for board members to refuse to answer when asked
if they believe it’s appropriate for a majority on the elected panel
to privately discuss district issues. The incumbents maintain sharing
their opinion with us exposes the district to legal jeopardy.
Other active school board candidates did respond, some flatly
opining the circumstances described illegal meetings. Others simply
noted the public is entitled to hear any data or arguments exchanged
by an elected panel’s majority, a process that can’t help but play a
role in the panel’s subsequent actions.
Eleven challengers said all six scenarios described
“inappropriate” practices. The incumbents refused to answer. Of
course, miraculously, their refusals were virtually identical, and
that’s really their answer, isn’t it?
* WILL ROGERS’ column appears in every edition of the Leader. He
can be reached 24 hours a day at 637-3200, voice mail ext. 906, or by
e-mail at email@example.com or at