Capo Changes Its Story on Closed-Session Vote

The superintendent admitted to Patch Friday that the district's board of trustees did approve the recent restoration of two school days and partial restoration of teacher salaries in a closed session in December, reversing previous statements by the district that no vote was taken on those issues.

The board action outside the presence of the public is now the subject of an Orange County district attorney’s office investigation, Superintendent Joseph Farley confirmed. The inquiry is focusing on whether the trustees violated the state law that requires open meetings, called the Ralph M. Brown Act.

A lawyer with the California Newspaper Publishers Association said there may have indeed been several violations of the Brown Act in this latest version of the story. 

When Patch first reported that some in the community were , district officials said there had been no board vote on the matter. The language in the agreement that was reached to end the three-day teachers strike in April automatically triggered the restorations without the need for a board vote, they said. The restorations cost the district about $8 million.

Although district officials initially denied that the board voted on the changes behind closed doors, a Jan. 11 report to the board contradicted that contention.  The report states: “On Monday, Dec. 13, 2010, the board of trustees approved the reinstatement of two days of instruction into the 2010-11 school calendar: Thursday, Feb. 17, 2011; Friday, May 27, 2011.”

Confronted with this discrepancy, district officials have said that report was in error, although there was no correction of the mistake at the Jan. 11 meeting.

During the Presidents Day Weekend, Patch received a copy of the restoration language and asked several district officials whether the board ever voted on the trigger. At the time, district spokesman Marcus Walton said: “No vote was taken on that because no vote would be needed to be taken at that time.” (In the original article, Patch included the parenthetical “on Dec. 13.”)

Now, however, Farley says the board did discuss and vote on the restoration of the school days and salary during the Dec. 7 closed session. The Dec. 7 meeting was the first of the newly composed board since the Nov. 4 election recall ousted two board members and failed to re-elect a third.

“The board discussed whether or not we wanted to ignore the settlement agreement, and the decision of the majority was we would not,” Farley said Friday. “I said, ‘Given the seriousness of this, I would like a vote.’ ”

Farley would not reveal the vote.

Jim Ewert, legal counsel for the California Newspaper Publishers Association, said the Brown Act requires the district to make public a vote taken in closed session. It should be announced and reflected in the minutes, he said.

Farley did add that determining the Dec. 7 vote would not be difficult. When the board considered making an official change to the academic calendar during the Jan. 11 meeting, the vote was 5-2, with Trustees Ellen Addonizio and Sue Palazzo voting against. The matter was listed on the consent calendar, meaning it could pass without a roll-call vote. Addonizio asked that the item be pulled from the calendar so they could discuss it and take a vote.

The addition of the two extra days was merely logistical, Farley said at that meeting, because the trustees had “already reinstated the days. They will be part of the calendar. It’s finished.”

Neither the Dec. 7 nor Dec. 13 closed-session agendas referenced a discussion about the restoration.  No vote was reported once open session reconvened at either meeting, and the minutes of both do not reflect a vote.

On Dec. 13, Farley contacted the Orange County Department of Education for advice on the matter. The next day, a reply was sent, cautioning the district about spending the money in such uncertain times. The district announced the restoration of the two school days on Dec. 15.

Farley said he and other district officials did not tell a Patch reporter earlier about the Dec. 7 vote because it was in closed session. He said he is correcting the record now because some “people have already breached confidentiality.”

The discussion of the restoration falls under the umbrella of “conference with labor negotiators,” Farley said. Such an item was on the Dec. 7 closed-session agenda but not on the agenda for Dec. 13.

Ewert said school district labor negotiations actually fall under another state law, called the Rodda Act. But even with the Rodda Act, the district would have been required to publish its proposal to the unions 24 hours before the meeting and then report the action afterward.

Ewert quoted state law: "If a vote is taken on such subject by the public school employer, the vote thereon by each member voting shall also be made public within 24 hours." 

The trustee agendas, however, don't reference the Rodda Act at all, only the Brown Act. Ewert called that peculiar. "I'm not sure they have that option" to not reference the Rodda Act and abide by it when it comes to labor negotiations.

Either way, though, the votes should have been publicized, Ewert said. "The question is: What is it that they're doing? Is it a subterfuge?"

Although the restoration language was already part of an approved contract and not up for negotiation, Farley sees its implementation as a strategy to approach the various unions that serve the district with new negotiations, he said.

On Tuesday's agenda is an information-only item that reports that the district will be and other employee unions for the 2001-12 year. Up for negotiations with the teachers are classroom size and wages. 

On Feb. 27, a private citizen, through his attorney,  by not restoring the days and salary in an open meeting. San Juan Capistrano resident Jim Reardon’s letter gives the district 30 days to respond and remedy the situation or face a lawsuit.

Sources told Patch, and Farley confirmed that Deputy District Attorney Ray Armstrong visited CUSD headquarters last week to investigate whether the board indeed violated the Brown Act. Farley said Armstrong was acting on an anonymous complaint. “He’s compelled to investigate,” Farley said.

Ewert said if the school board does not remedy the potential Brown Act violations, it would be "appropriate for a court to analyze it." 

This would not be the first time Capo’s board of trustees has caught the eye of the district attorney. In October 2007,  a 60-page report District Attorney Tony Ruckaukas released spelled out 13 Brown Act violations. However, none was considered for criminal prosecution.