EDITOR'S NOTE: In light of Orange County Patch's participation in Sunshine Week 2012, a national effort to promote dialogue about the importance of open government and freedom of information, we thought this discussion at Monday's Board of Trustee meeting was especially timely.
’s trustees will not go back to recording their closed sessions.
Trustee Sue Palazzo raised the idea at Monday’s Board of Trustee meeting. She said the recordings would be helpful now that the district is about to embark on and a large number of people are going in and out of closed-session talks.
“We need to be very clear what our instructions are to the negotiating team. I thought this could help,” Palazzo said.
But Daniel R. Shinoff, a San Diego-based attorney hired by the district, said he couldn’t recommend the idea.
While the school district, as a public agency, is required to conduct most of its business out in the open, there are a few topics that should only be discussed in closed session, especially those having to do with personnel, he said.
If the board decides to voluntarily tape closed sessions, two things could happen. One, the mere presence of the recording equipment could have a “chilling effect” on the candor of closed-door discussions, Shinoff said.
But more importantly, should a private citizen sue the district for allegedly violated the state’s open-meeting law, the Ralph M. Brown Act, the recordings could become part of the evidence, even if the judges listen to it privately in chambers in a proceeding called in camera.
Such recordings may also be made available when members of the media or public make requests for information under the California Public Records Act, Shinoff added.
Capistrano Unified does have a history of Brown Act violations and accusations of violations. Last April, of a lower court finding that the previous board violated the Brown Act in 2008. The teachers union filed that suit.
In October 2007, a 60-page report that District Attorney Tony Ruckaukas released spelled out 13 Brown Act violations. However, none was considered for criminal prosecution. In that report, the DA recommended the board record its closes sessions, and the trustees did comply.
According to a staff report, the practice was stopped in April 2010.
Just last year, the DA’s office looked again into possible Brown Act violations, , then later saying there were .
Shinoff said he had never heard of any governmental body recording closed sessions without some sort of disciplinary order.
A better protection for the trustees if they believe the board is violating the Brown Act behind closed doors is to leave, Shinoff said.
“I beg of you to walk out because you are making a statement that, based on your training, you believe a Brown Act violation has occurred,” he said.
Trustee Ellen Addonizio did support Palazzo's motion, even though she said she's mostly ambivalent about it.