School board secrecy questioned

The La Cañada Unified School District Governing Board very likely violated the state's open-meeting law on Jan. 11 by discussing the district's teacher-evaluation process behind closed doors rather than in public, according to two of the state's leading experts on the Ralph M. Brown Act.

The Brown act, passed by the state legislature in 1953, guarantees the public's right to attend and participate in meetings of all legislative bodies in the state. It was enacted in response to local-government bodies who were seen as avoiding public scrutiny and input by holding secret deliberative and decision-making sessions.

Supt. James Stratton maintained the board was within its rights to discuss in secret how the district audits teacher evaluation files under Brown Act exemptions that pertain to the presence of legal counsel and discussion of personnel issues.

Howard Friedman, the attorney for LCUSD, said he was approached by the Governing Board and told that they wanted a discussion on auditing teacher files in closed session. He did not attend the meeting in person but was present via a conference call, he said.

To Friedman's understanding, there were two Brown Act provisions that allowed the district to hold the discussion in private. It was justified since LCUSD was in the middle of labor negotiations with the La Cañada Teacher's Association and specific individuals were named during the meeting, he said.

But other legal experts say it's very unlikely that the scope of the board's discussion actually met the requirements for those exemptions.

"The Brown Act does not authorize a closed session for a school board to discuss its ability to access and audit teacher files or the evaluation process — under any rationale," said attorney Terry Francke, founder of the Carmichael-based nonprofit public advocacy group Californians Aware. "This board badly needs competent instruction on the Brown Act."

Judy Alexander, special counsel for access litigation with the California First Amendment Coalition, said the Brown Act's exemption for personnel issues applies only to discussion of a specific employee's record or qualification.

"Policy issues should be discussed in open session. To discuss a general policy issue in closed session? No. Sorry. Doesn't fly," Alexander said. "I don't think any of those reasons are a proper excuse for discussing policy on auditing teacher files in closed session."

Joel Peterson, a member of LCUSD's governing board, said the board was "absolutely" justified in holding the meeting in closed session.

"We were talking about personnel issues and performance aspects and there were certain people that were discussed as examples," Peterson said. "That's appropriately discussed in closed session and not in public."

Board member Cindy Wilcox, who has been a critic of the board's closed sessions, said she didn't remember specific people being named during the meeting.

"I don't remember that part. If people were named, it wasn't important to the discussion," Wilcox said. "Once you're in closed session, it's easy to say five people were named."

Peterson, who is not an attorney, said there was also an attorney-client privilege because the district's attorney, Friedman, provided legal advice via a conference call, which allowed the meeting to be held in private.

Both Francke and Alexander said having attorneys present would not in itself justify taking a matter off the public agenda unless the purpose for discussion included receiving legal advice about current or pending litigation.

"The only attorney-consultation provision justifying a closed session is the need to be counseled on pending litigation," Francke said.

There aren't any consequences for violating the Brown Act unless a member of the community presents the district with a cure-and-correct demand letter within the 30 days of the violation, Alexander said. The school board would then have 30 days to respond to the letter, notifying the sender of its decision on whether action will be taken. There is a 15-day window after the response to pursue litigation against the board if there isn't a response or any action taken.

Board members also rationalized having the discussion in closed session because the district has, since early 2009, been in negotiation with the La Cañada Teacher's Association. According to Stratton, a tentative agreement for a contract was reached by Jan. 11 and will appear before board members on Feb. 8.

Francke said it appears that teacher-evaluation policy actually had little to do with negotiations, as those negotiations had apparently already resulted in a tentative contract agreement.

"The closed session authorized for labor negotiations exists only to allow the board to hear from, and instruct its negotiator on, topics being bargained, and a teacher evaluation process was not one of them — in fact, a tentative agreement had been reached and awaited ratification," Francke said.

Peterson disagreed, and said the district was justified in holding a closed-session meeting because the negotiations with the La Cañada Teacher's Association are still ongoing.

"Anything we do has ramifications [on negotiations]. That's always appropriate to be held in closed session," Peterson said. "The board hasn't finalized a set of language in the contract yet and it had yet to be ratified by the [teacher's association]."

Wilcox had issued a public appeal at the school board Dec. 7 meeting for public discussion of the district's teacher evaluation policy and the board's ability to access and audit teacher evaluation files.

While the board agreed then to consider such a discussion, she was frustrated to find no support last week for holding it in the open and said, in her opinion, the governing board talks "way too much in closed session."

"I agree certain things need to be done in closed session, but the district's process of evaluation needs to be held in public," Wilcox said. "This hides information from the voters so they don't know how [the board] is voting. We want to be fully transparent to the voters."

Staff writer Joe Piasecki also contributed to this report.

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