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UPDATE: District Responds to D.A.'s Brown Act Allegations

The Orange County District Attorney's office sent a letter to the Capistrano Unified School District board and officials saying it could prosecute them for multiple violations of open meetings law.

Updated at 4 p.m. May 6 to include responses from district spokesman Marcus Walton, as well as attorneys representing two trustees and a San Juan Capistrano resident who has brought a suit against the district.

The Capistrano Unified School District Board of Trustees violated the state's open meetings laws when it opted to, the Orange County District Attorney's office said in a letter Friday to Superintendent Joseph Farley.

The letter states that if the district takes corrective action, the D.A. won't pursue charges, but, "reserves the right to institute formal enforcement proceedings."

The letter found that the Board of Trustees violated the Ralph M. Brown Act—which requires most business be conducted in open-session meetings—on at least three occasions.  While altogether, the allegations do not arise to the level of criminal intent, given the district’s past problems with Brown Act violations, the board’s actions “constitute a pattern of conduct” that could be actionable.

“Counsel has not had an opportunity to review the District Attorney’s letter,"  district spokesman Marcus Walton said in an e-mail. "However, under its new leadership, the District’s practice has been to aggressively cure and correct any possible violations.”

The first two violations are alleged to have occurred during a closed session meeting Dec. 13.  The only item on the agenda that evening was a performance evaluation of Superintendent Farley. However, according to Senior Deputy District Attorney Ray Armstrong and Senior Assistant District Attorney William Feccia, the board discussed restoring two instructional furlough days the teachers agreed to take in their contract the board approved after the April 2010 strike.

Although an agenda item in the Jan. 11 board packet said the board approved the restorations at its Dec. 13 meeting, Farley and Walton have repeatedly said that report was in error.

The prosecutors, however, believe the board violated the Brown Act on Dec. 13 by discussing something not on the agenda and then failing to report out any action taken.

“The discussion of restoring furlough days to a collective bargaining unit cannot be reasonably construed to fall” under the topics permissible in an employee evaluation, the letter states.

“The restoration of previously ordered furlough days certainly 'affected' the employment status of the public employees involved. But the decision to do so was not subsequently reported in the public meeting in which the closes[sic] session had been held.  This constituted an additional violation of the Brown Act,” Armstrong and Feccia wrote.

The board violated the Brown Act several times again at its Jan. 26 closed-session meeting, in which the board voted to partially restore teacher salaries. On an agenda revised two days before the meeting was a conference with labor negotiators, including the teachers union, Capistrano Unified Education Association.

The original agenda did not include a conference with negotiators. In documents obtained by Patch, a “time-sensitive labor negotiation matter” was added. Walton declined to identify what that item was.

“The [b]oard took action to restore teachers’ salaries in the closed session yet did not report that action taken in the open meeting wherein the closed session occurred,” wrote Armstrong and Feccia.  “More egregiously, however, the [b]oard not only failed to report this action, but published minutes of the meeting which incorrectly stated that 'no action' had been taken on that agenda item.  The conduct of the [b]oard at this meeting in not properly noticing the topic deprived the public of an opportunity to comment on the proposed action before or at the time the action was taken as required by” state law.

The third set of violations took place at a special meeting on March 16, ironically held to “cure and correct” any possible Brown Act violations alleged by San Juan Capistrano resident Jim Reardon, who has since based on similar accusations to the district attorney’s office’s.

Toward the end of the evening, trustee John Alpay made a motion that the board breech its contract with the teachers union. Although he would not describe the motion as sarcastic, he was clearly alarmed when President Jack Brick seconded the motion. Alpay asked for a quick recess, and the board adjourned without a vote.

Then the board members—without Ellen Addonizio and Sue Palazzo who had recused themselves from participating at the meeting at the advice of their lawyer – huddled together. When the meeting reconvened, Brick withdrew his second.

“That this violation was done in the presence of the [b]oard’s legal counsel, and that no attempt was apparently made to prevent it, renders it even more troubling,” the D.A.’s letter states.  

In 2007, the district attorney’s office wrote a 60-page report about the then-school board, alleging similar violations, including discussing anything under the sun under the guise of a superintendent evaluation.

That letter to the district concluded with the assurance that, “Henceforth the Capistrano Unified School Board will diligently guard against Brown Act violations.”

Now that similar charges have emerged, “It is troubling that the District Attorney has now received evidence of additional Brown Act violations whose pattern emulates the unlawful practices of a past [b]oard,” the recent letter concludes.

Earlier this week, the , calling Reardon’s lawsuit—which contains similar accusations of Brown Act violations —“frivolous.”

Wayne Tate, the Laguna Hills lawyer who represents Reardon, reacted to the news about the D.A.’s letter by saying, “In reality, [Farley’s] assertions that Mr. Reardon’s accusations were frivolous were in themselves frivolous.”

Craig Alexander, the lawyer who advised trustees Addonizio and Palazzo to not participate in the March 16 vote to reaffirm the restorations said the D.A.’s letter “justifies and ratifies the decision of my clients to retain a lawyer.”

He added his clients only seek “openness, honesty and transparency.” He will continue to represent Addonizio and Palazzo as Reardon’s lawsuit moves forward.

Pam Sunderman May 08, 2011 at 05:30 AM
Capo Dad, I support justice. I support truth over false allegations and accusations. And I support the fine teachers of CUSD.
shelly May 08, 2011 at 06:28 PM
Pam Ragland, The charter school of which you speak if it is in CUSD I believe is supported greatly by the parents financially. The extra space provided on the site of this charter school is paid for partially by the parents fundraising efforts of the charter school. This particular charter school has huge parent participation and support with many families who are financially able to give support. I believe when parents are allowed and asked to help and are able to then they will. The reason this charter school has survived its many moves is because it has had supportive parents who were invested in their children's education. This particular charter school fairs no better than its non-charter counterparts in the district in testing but it has a different philosophy and curriculum so to me the comparison in testing bares little weight. The public schools in CUSD also have art, music, shop, musical theatre, video production, computor labs, peer assistance classes, ASB, physical education, among other things. Sweden may have vouchers but it ranks below the U.S. Finland however ranks higher and has no vouchers and a strong teachers union. Finland values education and is very progressive, has art, music and physical education, etc. http://www.guardian.co.uk/news/datablog/2010/dec/07/world-education-rankings-maths-science-reading#data The former board signed a contract that contained restorative language. The current board legally must honor the contract.
shelly May 08, 2011 at 06:30 PM
And the public should be aware of the restoration and it should be done within the rules of the Brown Act.
shelly May 08, 2011 at 06:34 PM
Thank you j.denton for the link.
Shripathi Kamath May 08, 2011 at 10:21 PM
@Pam, you say "Having transformed organzations much larger than CUSD, I can tell you it points to a golden opportunity to reduce, streamline, and become much more efficient at the administrative level. I believe this is where the public should demand we focus." From http://www.ed-data.k12.ca.us/articles/article.asp?title=california%20comparison, I note this "And a California school district with 10,000 students would typically have five district officials/administrators and two librarians, while the average same-sized district in the nation as a whole would have 12 officials/administrators and 11 librarians." (Of course, this study could be wrong, in which case, if you have statistics more accurately reflective of the problem, please cite them) What that tells us is that we are probably already (severely) understaffed in the areas you want the public to focus on. So how exactly will a reduction help there? I get that things could be more efficient, in fact I struggle to find an area in just about any aspect of our lives that cannot be made more efficient. So that sounds nothing more than a magic elixir to me, not a tangible solution. Perhaps if you elaborated with some details, this would become clear. Also, in your cited transformation of organizations larger than the CUSD, were any of them education related, and if so, can you please cite references to some of these education-related efforts?
Capo mom May 09, 2011 at 03:31 PM
I'll accept the statistics you cite, SK. Given the information, you have to ask yourself why we in CUSD have been understaffed for years. School funding mechanisms are convoluted but in the end they are as simple as a household budget. Income and expenses must balance. In CUSD this has dynamic has been maintained on the back of student services and programs. Class sizes are ever increasing, counseling services are paper thin, sports and art programs have been funded largely by parents, few actual nurses at school sites, librarians are almost nonexistent. In the face of all of this, teachers salaries and benefits have continued to increase. This is not something that" just happened" with the recent budget crisis. It has been going on for years. The reason that schools in California are severely understaffed is directly related to the fact that teacher salary and benefits are among the highest in the nation. CUSD's salaries are among the highest in California.
Capo mom May 09, 2011 at 03:54 PM
And if anyone doubts what the union's priorities are, you need look no further than this weeks activities; the union sponsored "State of Emergency" campaign featuring rallies and demonstrations during STAR testing.
Sharon Y. May 09, 2011 at 03:59 PM
Well said Capo Mom, The current union controlled board as well as the teachers unions around the county have done nothing, absolutely zero to advance education. The only thing the union has advanced is their salaries and benefits while the rest of the county has lost . A report out last week about how most Americans are know underemployed was very telling, yet public employee unions pay is on the rise,doesn't take a rocket scientist to se what is wrong with public education............unions
Sharon Y. May 09, 2011 at 04:15 PM
Could not agree more, if I thought for one second that more taxes would decrease class size, bring back programs,provide additional services I would be happy to pay more. History proves that will never happen, more money never translates to better educational services for the students , it only lines the pockets of senior teachers like jollygirl. Get rid of unions and education will improve by leaps and bounds!
Shripathi Kamath May 09, 2011 at 04:26 PM
I do ask myself that. I also read other news and commentary on the matter. Which is why I made the comments that I did on the matter specifically in another post. Salaries, unions, and all. Briefly, California teachers are amongst the top 2 or 3, usually #1 in salary. But they live in California, which is one of the costliest states in the union, with one of the largest tax burdens. Adjusted for cost of living, they rank middle of the pack. Perhaps if you read all my responses, it might save a re-typing of the my entire responses. Let me know if you want to discuss that. My reply to Mr. Avery, and one to Ms. Shelly: http://missionviejo.patch.com/articles/with-looming-budget-crisis-teachers-vow-not-to-strike-this-year
Shripathi Kamath May 09, 2011 at 04:31 PM
The unions top priority is to get the best monetary deal for its member. Just like it is the priority for <insert sector here> to get the best deal for its members. That includes the lobbyists who got their members 780 billion in bailouts. If unions could afford to hire those lobbyists, you'll not see any teachers in the street. Did they do that on their own time, or got out teaching in classrooms in the midst of a test to do so?
Shripathi Kamath May 09, 2011 at 04:34 PM
Also, you do not HAVE to accept the statistics I cite. You are more than welcome to cite sources that you have read, and are reasonably sure that they have done it without picking a horse in the race.
shelly May 09, 2011 at 05:17 PM
Sharon Y and Capo Mom, Finland teachers are unionized and it ranks number 2 in the world in education. Finland values education. http://www.guardian.co.uk/news/datablog/2010/dec/07/world-education-rankings-maths-science-reading#data My 4 children are all taking the star tests this week, and I can say their teachers are in the classrooms and have been working hard all year to educate them. Are your kids in CUSD schools? Aren't their teachers working hard if not why are your children in these classrooms? Why put your children in harms way and with people you think are not educating them? Cite the particulars from children's teachers. Do they care about your children? Are they teaching them? If the answer is no, then why are your children there and where does the responsibility of a parent looking out for their own children apply?
shelly May 09, 2011 at 05:18 PM
Sharon y., There is less money coming to our district and to education because the economy tanked. If there is less money and you want the same services then you either compromise and take less or you help.
Sharon Y. May 09, 2011 at 05:35 PM
Shelly Teachers in 2006 recieved a 7 percent increase over two years at the same time class size was increased as well as closing the career and counseling center at the mall to save a mere 200 thousand, how did that help students, who was the real beneficiary of that budget? After reading a 10 year study of CUEA contracts it showed one thing , every time the teachers saw an increase in salary so did the classroom size.
Shripathi Kamath May 09, 2011 at 05:48 PM
That is a bizarre use of correlation to show causation. On par with the one that used to show that every time President Bush spoke, the DJIA dropped. Just as unrelated, and not even as comic. May I ask why you consider a 7 percent increase over 2 years for teachers in 2006 as some sort of extravagance? If teachers are the ones responsible for educating kids, it is in our best interests to make sure that they are properly compensated and motivated. While increasing compensation is not necessarily a motivation, not providing it, or cutting it is always a disincentive. A seven percent increase over two years is only slightly better than the cost of living increases. If I recall correctly, price of gasoline had spiked then too.
Pam Sunderman May 09, 2011 at 06:23 PM
I fail to see how vilifying teachers (however long they have taught) will solve the problem of decreasing revenues to school districts. Manipulating statistics to prove a point is also counterproductive. Dividing CUSD also will not solve the financial problems they face (which are also faced by every other school district in the state). Two sets of district administration and two district offices can hardly be considered a cost saving measure. All of the above can be used to mislead people and hide an agenda. I would prefer to discuss real issues and offer solutions.
Capo mom May 09, 2011 at 09:16 PM
I agree that, not education, is the union's top priority. And they have done great job executing that priority. Teachers salaries rise without regard to merit or value of the job they do. They are impossible to terminate except in the most extreme situations. Their pensions have a ridiculously high value guaranteed by the taxpayers. The union's avarice seems boundless. Because parcel tax initiatives are failing around the state, David Sanchez, president of CTA, is openly advocating the implementation of Brown's tax extensions without a public vote. The teachers union doesn't need to hire lobbyists. They own the state legislature already. The consolidation of the teachers' union's power has directly paralleled the decline of educational quality in the state of California. Maybe that is a coincidence. But I doubt it.
shelly May 09, 2011 at 09:21 PM
capo mom, A teachers top priority is to educate. If you have children in CUSD are their teachers not doing a good job? Do you feel that your children's teachers are overpaid? Instead of generalizing be specific to your own experience.
shelly May 09, 2011 at 09:24 PM
Sharon Y. If you have children in CUSD are their teachers not doing a good job? Do you feel that your children are not getting a good education? Do you feel that the teachers are not there for your children? Be specific to your own situation.
Shripathi Kamath May 09, 2011 at 09:52 PM
If education is our top priority, then we should want the best teachers to be teaching our kids. That means making sure that we have the best qualified, best trained, well paid, etc. Without their union they would be exploited. At the same time, I do not think that unions as they exist and operate today are the most conducive for progress. So obviously work is needed to figure out more efficient means. I'd love for the case where unions do not exist, and teachers are properly compensated without being exploited. I do not see that happening given the existing framework for our education. "David Sanchez, president of CTA, is openly advocating the implementation of Brown's tax extensions without a public vote." Why would we expect him to do anything different? The Republican legislators will not allow the public to vote on it. And it does matter, because Brown cannot extend taxes without a vote. "Their pensions have a ridiculously high value guaranteed by the taxpayers" Teachers are in a profession that is unlike a common for-profit business. In boom years, teachers do not enjoy the same bonuses, or big double digit raises, or profit sharing via 401Ks. In down years, they do suffer the cuts like any other business, but perhaps not as drastically as for-profit businesses. Some of them get laid off. In general, the teaching profession is more stable. This is what you want for that profession. Their compensation structure is tailored for that environment.
shelly May 09, 2011 at 09:58 PM
Sharon Y. Given that teacher influence every aspect of our lives I believe that they are underpaid for their worth and contribution to our society and future. If we really calculated in dollars what a teachers contribute to the world in teaching and passing on knowledge to our citizens (their product) then we all would see how underpaid teachers are. Software engineers -how did they gain their knowledge (teachers) cha-ching, Doctors- where did they learn (from teachers) cha-ching, Executives from every company how did they learn how to read, write and do math (from teachers) cha-ching, etc. People in all walks of live receive cost of living raises and raises. It is how businesses and the public retain good, loyal, hardworking employees. Last year the teachers took a cut. This year they will probably take a cut. Less money and teachers taking a cut but where do the parents figure in? If we want the same then we must help.
Shripathi Kamath May 09, 2011 at 10:03 PM
contd... I presume you have someone mowing your lawn. In hard times, you have a choice. Negotiate with the service provider to cut his/her rates, or cut the frequency of the service and do it yourself. Should we be inquiring what the service company is paying their employees SO MUCH for just cutting the lawn? Why are teachers any different? Your entire view seems to be tainted by a deep distrust and a perception that teachers today provide little to nothing, and should basically all be taking massive pay cuts to have the privilege of teaching. It is a job, an under-appreciated one. They do not get to choose which kid to teach, we do not allow them that luxury. I'd ask you your solutions to the crisis at hand, as I have repeatedly done, but I am too scared to parse anything in a venom-filled tirade directed at me for asking it, or at the teachers, teachers-unions, the board, and other assorted villains. Elsewhere I have echoed what I think is realistic: 1. Extend taxes and face more acceptable cuts/increase in class sizes, or 2. Face draconian ones by legislative defaults. I do not see any other options, regardless of whose fault it is.
Capo mom May 10, 2011 at 02:17 AM
You' re scared? Of someone you don't even know? That speaks volumes. What is the worst that can happen? I reach through your computer screen and steal your lunch money? Don't worry even if you or your children are on some list. No intent can be determined from that. If education is "our" top priority, we should demand the same from the teachers union. You have acknowledged however, this excludes the union from our group. I agree.
shelly May 10, 2011 at 04:46 AM
capo mom, Education is a top priority for me as a CUSD mom for my children and that is why my children attend CUSD schools? Is education a top priority for you for your children? Do they attend CUSD schools? Why? Do you find your children's teachers to be educating your children? Do you feel that your children's teachers earn their salaries or do you believe your children's teachers to be overpaid? Please be specific? I am curious to know Capo Mom.
Shripathi Kamath May 10, 2011 at 03:50 PM
I was scared that I might have been wrong about you, and accused you of dishing tirades when you were just about to provide something tangible. Not so any more. "Do you find your children's teachers to be educating your children?" Yes. "Do you feel that your children's teachers earn their salaries or do you believe your children's teachers to be overpaid?" Yes to the former, and no, I don't believe they're overpaid. I think they are underpaid and said so. [Here's where you jump in and announce that I said I want to raise their salaries during a fiscal crunch. That too will save you from answering the question I asked, but you'll still be wrong] I repeat so that your dodge does not go unnoticed. I have echoed what I think is realistic: 1. Extend taxes and face more acceptable cuts/increase in class sizes, or 2. Face draconian ones by legislative defaults. I do not see any other options, regardless of whose fault it is. I prefer 1. since it is the best for my kid, even though it'll cost me more. What's your proposal?
Capo Parent May 10, 2011 at 09:39 PM
SK DC put up billions/trillions to save AIG, Goldman Sachs, etc. because of the real fear that if these institutions failed they could bring the whole economy down and spark deep depression like the Great Depression. While it would have been enjoyable to see these firms fail (I personally would have loved to have seen it happen), the fact that many financial and economic experts across the spectrum concurred that the firms needed to be saved because of the potential doomsday consequences is telling. Hard to be cavalier about the failure of multi-billion institutions when you have the fate of the country and its future in your hands. That being said, those in charge/control of of AIG, Goldman Sachs, etc. who allowed their companies to almost fall into the abyss should face criminal charges. On a positive note, several of these institutions, e.g. Goldman Sachs, have paid the US back in full with interest.
Shripathi Kamath May 10, 2011 at 10:28 PM
Wait, you mean BIG socialist government getting involved in choosing winners and losers is OK as long it is AIG, GS, (but not Lehman Bros, strangely), Citi, Savings and Loans (in the 80s), farmers, oil companies, but not when it is GM (Chrysler was somehow OK in the 1980s, though), or educators? :-) Some 13 trillion (conservatively) were lost in the mortgage crisis. How many of the institutions have been charged with malfeasance of any kind? Are there concerned watchdogs filing lawsuits to recover our bonuses? Other than Michael Moore trumpeting around like a wounded wildebeest, comparatively very few eyebrows get raised when the bailed out institutions were handing out huge bonuses from taxpayer bailouts. But teachers (not related to the downfall), and who have taken a pay cut already, and will take more are G R E E D Y V I L L A I N S! Here's a history of bailouts. http://www.propublica.org/special/government-bailouts Do you see G R E E D Y educators anywhere in that list? contd...
Shripathi Kamath May 10, 2011 at 10:29 PM
Tolstoy continues... I totally get it why the Great Bailout was necessary. And why the Debt Ceiling MUST and WILL be raised. Educating our kids is far more vital. If we were to borrow another 10 trillion to shore up our kids' education (supplement, reform, union busting, privatization, whatever...), to ensure that we retain (or regain) our exceptional edge, then it is worth it. That is not under the purview of CUSD, nor is any of that even on the radar of the immediate budget crisis which has to be solved. Educated kids in massive debt is FAR better than uneducated kids who cannot even be debtors. Like the ones in Afghanistan we see when our attention span can be directed away from exercising the defense of 2nd Amendment rights (strangely when they are not under attack) at a health care debate. Honestly, are you screaming *proportionately* at the massive bonuses that were being dealt out on taxpayer dime to workers in those institutions *after* they were responsible for that disaster? contd...
Shripathi Kamath May 10, 2011 at 10:29 PM
Tolstoy continues... Yes, I get it that the current board is teacher-friendly, or more brusquely, a union-sycophant. Is that really such a criminal thing to favor teachers, compared to the other excesses we favor? It is not as if they can give away what they don't have. They cannot do any deficit-spending. Anything they have given away will be taken back if we don't get the necessary revenues. See if you catch my frustration at the disproportionate treatment: http://tinyurl.com/4tkqej4 [I commend you on remarking that the Great Bailout was necessary]

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