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D.A. Backs Off Accusations That Capo School Board Violated Brown Act

But the report has choice words for the district in creating a "toxic atmosphere."

The Orange County District Attorney’s office has revised a report critical of the , saying now that district trustees only appeared to violate the state’s open-meeting law when they approved employee concessions last school year.

Nevertheless, the new findings, which the district received Monday, take the board and Superintendent Joseph Farley to task for creating “political theatre” and a “toxic atmosphere” in which the public’s best interests were not necessarily considered.

“Ultimately, this case illustrates that the avoidance of the appearance of impropriety is just as vital as the avoidance of its reality," the revised report said. "Public confidence in government is adversely affected by both.”

In an earlier report published in May, two attorneys in the D.A.’s office concluded the board violated the Ralph M. Brown Act—which requires most business be conducted in meetings open to the public—on at least three occasions.

But later that month, Superintendent Joseph Farley asked the attorneys to reopen their investigation to peruse more information and interview the seven trustees individually.

“We are pleased that the district attorney listened to our concerns and reopened the investigation," Farley said in a press release Tuesday. "After a more thorough review, no Brown Act violations could be substantiated, and we are pleased that the findings reversed the district attorney’s previous conclusions.”

The new report itself, however, is not that clear-cut.

After reviewing records and talking to trustees—some of whom were reluctant and less than cooperative, according to the report—the D.A.'s office said there were now too many conflicting stories to draw definitive conclusions.

Still, the D.A. had sharp words for the district:

“The OCDA’s investigation also revealed what can be described as a seemingly toxic atmosphere within the halls of CUSD. Evidence revealed examples of condescension or disdain for other board members or dissenting members of the public. Meaningful discussion was replaced by facetious motions and political theatre,” it states.

The disagreements among school board members, which often results in a 5-2 split with trustees Ellen Addonizio and Sue Palazzo on the losing end, is taking a bigger toll than trustees might realize, the D.A. wrote.

“The motivations of colleagues and others were questioned or impugned. While mutual recriminations and concerns for contractual obligations, professional positions, political agendas, and labor peace were expressed, one was left with the impression that the very object of the entire organization, the education of the community’s children, had been allowed to fade into the background,” the report states.

Officials React

School board Vice President Gary Pritchard, who chairs the meetings, said he wasn't surprised that the D.A.'s office acknowledged it erred in its first report. And he said he expected Addonizio and Palazzo to mend fences with the board majority.

"I am confident that the two trustees who helped initiate the first investigation will want to reach out to their colleagues on the board and their constituents to reassure us all that they want to move forward without rancor," he said.

Pritchard didn't immediately return an emailed question seeking his reaction to parts of the report that put the responsibility on the entire board. 

In response to Pritchard's call for an end to the rancor, Craig Alexander, attorney for Addonizio and Palazzo, said that his clients do want to get along with their colleagues on the board "and put an end to the bitterness of the last few months. But working together is a two-way street."

Alexander took issue with the district attorney's characterization of "political theatre" in connection to the March 16 meeting. He said his clients declined to participate on his advice. "To call it leaving the room 'theatrically,' they couldn't float out. They actually had to walk. [The report's wording] is offensive, inaccurate and poorly stated."

Bill Feccia, senior assistant district attorney, told Patch he and his colleagues walked away from meetings with all seven trustees and Farley "flabbergasted." 

"We expected to find juvenile behaviour on the campuses of the schools, but we didn't expect to find it in the halls of the school district headquarters," he said.

The Dec. 7 Meeting

The May report, which the D.A. called a "notice of violation," focused its investigations into alleged violations on three closed-session meetings: Dec. 13, 2010, Jan. 26 and March 16. The new report adds the Dec. 7, 2010, meeting, following the .

The D.A.’s office had trouble uncovering what happened at the Dec. 7 meeting, given the conflicting stories trustees offered.

“Board members themselves differed on what happened, variously describing it as ‘action taken,’ a decision to take ‘no action,’ giving ‘direction,’ ‘no agreement to do anything,’ and so forth,” states the report, which does not indicate its author.

Meanwhile, the public wasn’t informed until Dec. 15, 2010, two days after another closed session, leaving a bad impression, the report states.

The Dec. 13 Meeting

Similarly, the events that took place at the Dec. 13, 2010 meeting are also unclear, the report states. The first version of the investigative report said trustees decided to approve the furlough days’ reinstatement at this meeting, but the new report backs away from that conclusion. The only item on the closed-session agenda that day was a superintendent’s performance evaluation.

“Again, memories of the participants differed. One trustee had no recollection at all of the Dec. 13, 2010, closed session. Another recalled discussing the superintendent’s evaluation and did not recall any discussion regarding furlough or salary restoration.

The report says several circumstances could lead an observer to deduce that trustees finalized their decision about the furlough days at the Dec. 13 meeting. The evidence includes letters Farley sent to the Orange County Department of Education’s office and the public announcement about the reinstatement.

The trustees formally voted for a partial restoration of teacher salaries at the Jan. 26 closed meeting. In the D.A.'s May 6 letter, investigators said this was a clear violation of the Brown Act.

However, the new report backs away from that conclusion. “[U]nless the action is the final approval of a labor agreement, the Brown Act provides no requirement for reporting out any action taken in closed sessions,” the report states. “That was not the case in this meeting. No violation of the Brown Act can therefore be shown.”

The new finding seems to contradict the May report, which stated:  “The discussion of that topic and the action taken at that meeting in restoring teachers' salaries violated the Brown Act, specifically the agenda requirements Govt. Code § 54954.2.”

Feccia said after talking to trustees, the Jan. 26 action was deemed an extension of discussions that began Dec. 7, 2010, which forced him to consider other applicable laws.

March 16: 'Curing' the Brown Act Violations

Finally, the District Attorney’s office had strong words for trustees regarding their performance at the any appearances of Brown Act violations.

At that meeting, Trustee John Alpay made what the D.A. calls a “facetious” motion “to disregard the rule of law, subject CUSD to an unfair labor practice and unnecessary litigation, incur unnecessary legal expenses, and needlessly waste tax dollars on attorneys and legal costs, throw this District back into turmoil, cause further erosion of home values…and affirmatively breach our agreement with” the teachers’ union, Capistrano Unified Education Association.

When board President Jack Brick seconded the motion, the board took an abrupt recess, where several trustees gathered at the dais. When the meeting returned to order, Brick rescinded his motion.

“That the moving trustee was observed jokingly discussing his motion with audience members served only to strengthen the impression that the board had no intention of seriously considering public input,” the report states. “Instead, it appeared that the board was predetermined to rebuff any opposition to what it had already decided, an ironic impression to convey at a meeting ostensibly held to invite meaningful public input and comment in an effort to correct past perceived improprieties.”

The D.A.’s report, however, said investigators could not establish whether the trustees gathered at the break represented a quorum, which would have been a violation of the Brown Act. So it has backed off from labeling the recess to discuss the "facetious" motion illegal.

Capo Parent September 21, 2011 at 02:52 PM
If you read the DA's report carefully they basicall state they can't prove a Brown Act violation because the trustees and Farley all have different versions of what happen behind close doors. jHowever, the DA's report paints the board and Farley as inept, politically motivated, deceiving and child like, and notes they have created a toxic environment at CUSD. A very daming report. So those who support the inept, politically motivated, deceiving, child like board rejoice in the DA's finding that the board members different recall of what happen behind close doors negated their ability to confirm the Brown Act violations they previously found. It is nice to see that the union supported board members are doing such a "stellar job." I can't wait to see how the inept leadership of CUSD handles what appears to be $20 to $30+ million in cuts that are coming in January. Thank goodness we have alternatives, albeit small at this time - OPA. and the other charter schools and home schooling. The fiasco that is the current leadership of CUSD points to the need for more charter schools like OPA in CUSD. Parents need a positive, dynamic and accountable learning environment that is not controlled and contaminated by the abysmal leadership of CUSD.
Kerry September 21, 2011 at 03:08 PM
Would this be a discussion in a good economy? Maybe so but not as necessary. Is it really possible to continue spending at the same levels. Something has to give. Unions are needed to protect workers but spare us the condescending attitudes. As if you have the right to grade our comments.
Pam Sunderman September 21, 2011 at 03:17 PM
Penny, just to clarify, those budget problems are statewide and affect EVERY school district.
Pam Sunderman September 21, 2011 at 03:24 PM
Just to clarify again...those potential budget cuts are coming to every school district in CA and to every school...including the charters. It will not be pretty for any of them if it happens. I will be curious to see how a charter handles the cuts. They are funded exactly the same way as every other school. Will the teachers bare the brunt? Will the parents step up with contributions? Will class sizes grow?
Penny Arévalo September 21, 2011 at 03:30 PM
While schools across the state are dealing with a numbers crunch for sure, these numbers are specific to CUSD.
Shripathi Kamath September 21, 2011 at 04:18 PM
So was the DA incompetent when they charged the board with Brown Act violations earlier or are they incompetent now when they recanted? "However, the DA's report paints the board and Farley as inept, politically motivated, deceiving and child like, and notes they have created a toxic environment at CUSD" In other news Palin criticizes Obamacare for instituting death panels.
Shripathi Kamath September 21, 2011 at 04:34 PM
" Love the way you all glossed over Penny's post about the the big budget hole" The budget hole has nothing to do with the DA's office recanting their earlier allegation. It is about as relevant to this story as the "Meet seniors over 50" ad in the top right corner.
Capo Parent September 21, 2011 at 05:12 PM
SK I don't know. Maybe the DA changed his tune for the reasons noted in the second report. Since you seem to have all the questions and know all the answers why don't you just tell us in your usual, confusing style.
Capo Parent September 21, 2011 at 06:12 PM
SK I'm not confused, you're confused, but that's not surprising since you confused what I stated with what you thought or hope I stated. As for whether or not the DA is incompetent who knows. Certainly appeared incompetent in the handlng of the Fleming matter.The about face by the DA may have more to do with the close personal relationship the DA and his fiancee have with Anna Bryson. But hey, we all know the DA is not political. :)
concerned parent September 21, 2011 at 06:17 PM
Those like SK who are acting as if this exonerates the board don't understand just how damning the report really was and just how dysfunctional this board continues to be. It appears the only reason charges won't be filed is because the board refuses to tape record its executive sessions and it's impossible to find out what happened in those early December meetings (you know, the ones that were called to immediately reward the union for its election support--and reinstate money the district didn't have then and doesn't have now.) Read the Register article for more info about the tape recording. Any claims of "transparency" on the part of this board are a joke.
Penny Arévalo September 21, 2011 at 06:17 PM
Just in case you all missed it, the report is attached to this story as a PDF.
Shripathi Kamath September 21, 2011 at 06:26 PM
"Those like SK who are acting as if this exonerates the board don't understand just how damning the report really was and just how dysfunctional this board continues to be" No, I understand fully that the CUSD board was not found to have violated the Brown Act. I don't need to act any other way
Shripathi Kamath September 21, 2011 at 06:28 PM
"I'm not confused, you're confused" I'm confused now. The DA's office was incompetent either when they concluded that Brown Act violations took place, or when they recanted. Pretty clear to me. Why do you say I'm confused?
Shripathi Kamath September 21, 2011 at 06:44 PM
Pretty drab report, Penny. It could use a few cartoon drawings to make it more engaging. And if there was ever an overuse of "adduce" in a sermon about democracy and what should behoove a politician, I'd be hard pressed to adduce it. I like your article a lot more. Just take a look, it has given me so much material to work with.
Pam Sunderman September 21, 2011 at 06:59 PM
Concerned parent if you are relying on the OCR as a source of balanced reporting of all the facts you are sadly misinformed. As far as the D.A....when did it become his job to pass moral judgement according go his own opinions? He came perilously close to judiciary misconduct in some of his actions regarding events in CUSD over the last 4 years.
Shripathi Kamath September 21, 2011 at 07:02 PM
"He came perilously close to judiciary misconduct in some of his actions regarding events in CUSD over the last 4 years." Please adduce.
Capo mom September 21, 2011 at 08:09 PM
If that report is an exoneration, I'd hate to see an accusation. Interesting points; -Farley admits the 3 new trustees are union creatures. -The only reason the board escaped being cited for a violation is no one had a consistant picture of what happened. I wonder how many serial board meetings (additional violations) that took. -There is no mention of who authored the report. Curiouser and curiouser.
Pam Sunderman September 21, 2011 at 08:24 PM
Union creatures???? Really??? What exactly is a union creature?
Shripathi Kamath September 21, 2011 at 08:33 PM
Whew! I thought you were never gonna show up. Don't ever scare me like that. "If that report is an exoneration, I'd hate to see an accusation" No, the report is simply an admission of failure to back an accusation the DA made earlier. The admission is accompanied by an unrelated (to the charge of Brown Act violation) "you guys are poopy-heads" homily. Since you hate to see the accusation, here it is: http://sanclemente.patch.com/articles/da-dings-capo-unified-for-back-room-dealing (top right corner, click on the letter, ask Penny for the rest of the truncated page) Say, would you have preferred for the district to have been found guilty of violating the Brown Act? What do you think the consequences would have been?
Shripathi Kamath September 21, 2011 at 08:57 PM
Q for Penny. A while back, Mr. Jim Reardon had dropped part of his lawsuit against CUSD http://missionviejo.patch.com/articles/citizen-watchdog-drops-half-of-his-lawsuit-against-capistrano-unified "San Juan Capistrano resident Jim Reardon, however, will still pursue the part of his lawsuit that contends that the board of trustees violated the state’s open-meeting laws when it reinstated two instructional days in December 2010 and partially restored teacher salaries in January." Do you have any comments from him/his attorney in light of this report from the DA's office? Is he going to continue with the remainder of his lawsuit?
Capo mom September 21, 2011 at 09:28 PM
Awww .... I'm feeling the love, SK. The report doesn't recant the allegations, as you said. Nor does exonerate the board's behavior. It merely states that since there is no accurate record of the events, there is no basis from which to proceed. I don't know if the board can be "found guilty" of violating the Brown Act. It isn't as though there would be a trial. If the DA's investigation determined there was violation, they would have issued a report condemning the board's behavior and admonished them not to continue it. Which is exactly what the DA did here. But a wink is as good as a nod to blind horse.
Shripathi Kamath September 21, 2011 at 09:56 PM
"The report doesn't recant the allegations, as you said" Yes, it does. All you have to do is read through it. The DA started with "Brown Act violations in progress" back then, and are now saying "No Brown Act violations could be determined, poopy-heads!!" "But a wink is as good as a nod to blind horse." ...and to a one-trick pony, it is nihil ad rem. "If the DA's investigation ***determined there was violation***, they would have issued a report condemning the board's behavior and admonished them not to continue it. Which is ***exactly what the DA did*** here" Ah, so whether there was a violation or not, the penalty is the same. [wink? nod?]
Capo mom September 21, 2011 at 10:51 PM
I missed the part where the report said "No Brown Act violations could be determined, poopy-heads!!" The report makes it plain that from their first meeting, CUEA's board has been trying to withhold information about their decisions and obscure their actions relative to their financial backers. That is a violation of the spirit of the Brown Act. The only thing that saved them from an actual violation was a lack of clear memories and/or records. I find that a sloppy way to manage a $400 million enterprise. But like their predecessors on the Fleming board, this board decided it is better to appear incompetent than crooked. This demonstrates the "beauty" of the Brown Act, there is no penalty in either case. I do suspect you are right that this is all irrelevant to the CUEA's one trick pony board. They will probably continue trying to hide their actions. I'm with Penny. I wonder what things will look like mid-year and beyond.
Pam Sunderman September 22, 2011 at 12:08 AM
Wow SK...nice word. Thank goodness for google... Adduced addition to my post = the case against an assistant superintendent (I would prefer not to mention names since enough is enough for this person who deserves no more malicious press) in charges of lying to the grand jury. Those charges were dropped and the DA was considered for misconduct by failing to provide evidence that would clear the person.
Capo Parent Too September 22, 2011 at 03:25 AM
Where does it say that in the report Capo Mom? You are taking a lot of what they are saying and making it more than what it is, which is exactly why their political commentary is inappropriate and not what should be part of an official report. Was there a Brown Act violation or not? No. You can try to make it more than it is but that does not change the fact that nothing was found. Trust me, if they could have made the case, they would have. Even with the mixed information, they could have made such a case. The problem is this, they had two eye witnesses who made a lot more out of something, they took them at their word, and they had five others who said, that's not what happened. The two eye witnesses probably couldn't keep their story straight either. This is the political circus, it has two ring leaders, the rest just have to sit by and watch. You can make up as much as you want, you and the DA seem to want to make more of it than what was there, you, Reardon, you name it. You go with it, but it still doesn't change the fact that there is and was no brown act violation.
Reality Check September 22, 2011 at 04:41 AM
This article is not about unions or spending levels. Off Topic Response. Zero Credit.
Christine September 23, 2011 at 12:03 AM
Capo mom, You can be found guilty of violating the brown act. Ellen was. Remember? I think it was 2008. The old board wanted to fire Supt Carter. Ellen had an attorney attend the closed session illegally. She was supposed to agendize that there would be a visitor there. She didn't. Back then the closed sessions were taped. On this occasion though Ellen asked for the tape to be turned off. She alleged that this attorney was there to privately advise her. Heard that before? This was also about the time of Ellen and Sue's visit to the superintendents office. It is funny to hear Ellen's supporters to demand that the board admit to a brown act violation. Something that Ellen was never willing to do even though she was found guilty.
Capo mom September 23, 2011 at 05:12 AM
The only thing close to being found guilty was the Fleming board's admission that they had violated the Brown Act on several occasions. I am sure you'd be familiar with that, Christine. Maybe that is what you are thinking of. You can't be found guilty without a trial. There hasn't been a Brown Act trial in CUSD, to my knowledge. But if what you say is true, it is a matter of public record. Please provide the link for it.
Christine September 23, 2011 at 02:09 PM
Here you go... http://www.ocregister.com/articles/meeting-240527-school-board.html
Capo mom September 24, 2011 at 04:44 PM
Thanks for the link. That was a civil action initiated by the union, not something prosecuted by the DA. The decision was based on the difference between the description of evaluating the then-superintendent and disciplining him. No one was found "guilty", the judge ruled the agenda was not written correctly. What was ironic was the quote from union boss Soderberg; "This entire ("reform") school board ran on a campaign dedicated to restoring honesty, integrity, and accountability to public education," Vicki Soderberg, president of the Capistrano Unified Education Association union, said in a statement. "But if their action in this case is their definition of these qualities, I want no part of it ..." Given that the new board is hers, I guess we can assume she prefers back room payoffs, "private" press releases and foggy memories.

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