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Board members help themselves

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 or at