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Capo Changes Its Story on Closed-Session Vote

The Orange County district attorney's office is now looking into the vote on salaries and restoration of school days to see if it violated the state's open-meeting law.

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.

shelly March 11, 2011 at 05:29 AM
Mrs. McCArthy, The children of CUSD and my children who attend CUSD schools are not sub-par products. So if I simplify your equation above the following is true according to you Largest Revenue Producer in CA = Teachers Union I believe this is true because teachers "produce" doctors, lawyers, business people, nurses, software engineers, mechanical engineers, electrical engineers, construction workers, fire fighters, peace officers, etc.
rick lyons March 11, 2011 at 05:56 AM
Shelly, teachers are not the only people involved in raising a child. It is the parents who provide a nuturing, loving environment with a positive attitude that will have the best results. Teachers are there to instruct students, not produce them.
Lori Walker March 11, 2011 at 06:16 AM
Capo Mom, I didn't mean to "miss the point". I have no idea why the trustees did what they did so I cannot personally speak for them. I do think we need to give them a chance to explain and allow time for "corrective action" if warranted. Rather than jumping on the band wagon and accusing these people of misdeeds and lies, I would like to give them a chance to do their job. Call me an optimist or even a fool if you want but I think we have a very balanced and solid board. I happen to be very impressed with our new board members. And I believe they have the best interest of CUSD students in mind.
homeskoolmom5 March 11, 2011 at 06:46 AM
Reality Check, I am not waiting for the skool board to give me anything. You assume that I have a "large brood." The number 5 has personal significant meaning for me, and it is not what you think. You assume way too much.
shelly March 11, 2011 at 07:45 AM
“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.’ ” So the vote was to honor the contract that the former board had signed or not honor the contract? This occurred in their first meeting as a new board and people are labeling them as cheats and liars? Lori Walker, I agree with you.
shelly March 11, 2011 at 08:12 AM
Rick Lyons, I was using Mrs. McCarthy's language. I should have written, taught or mentored students so that they have the knowledge to become one of the professionals I mentioned above. We don't learn in a vaccum. Yes, a nuturing, loving home environment is best. But not everyone has this. I was the first person in my family to go and graduate from college. I was able to attend UCSD and graduate because of the encouragement of a caring high school teacher who stepped up and encouraged a girl from a troubled home to strive to do better. I thank her for making my life what it is today. I ran into this teacher a couple of years ago at a 4th of July run. I was running with my oldest son. I heard her voice behind me cracking a joke to one of the race volunteers. At the end of the run I walked up to her and introduced her to my son. I told him that she was one of the best teachers I had ever had. I thanked her for helping me make the right choices and for her encouragement. I thanked her for helping me to find my way to a great life. I know the power of a good teacher.
Capo Parent March 11, 2011 at 04:22 PM
You're assuming that honoring the contract means the restoration language was triggered. If the restoration language was not automatically triggered then I assume you would agree that "honoring" the contract would mean not providing restoration, especially with CUSD facing at least two more years of multi-million dollar cuts. As for Farely being a new superintendent, he is only "new" as to CUSD, he is in fact a very experienced school district superintendent, so there is no excuse for his failure to follow the Brown Act. As for the new trustees, they took their shots at the reform trustees, now the shoe is on the other foot. They wanted to be trustees and now they are, and they are responsible for their actions and inactions. As for being labeled cheats and liars, I think that has to do with the fact they lied about the December 7, 2010 vote, and they gave back millions to the unions without any public imput, hence the cheats. You and their other supporters still haven't answered a simple question, why did they shut out the public? After everything that has happen in CUSD over the last several years, with cuts being made every year for the last few years, with cuts having to be made in at least the next two years, did the new trustees really think they would get away with giving back millions to the unions without any public imput?
shelly March 11, 2011 at 08:34 PM
I wrote, "The board is composed of 4 "experienced" "reform board members and 3 new board members. There is a new superintendent. People make mistakes and yes this should have been conducted in public. The superintendent asked for a vote and so a vote was taken. Should they have stated they took a vote. Yes. " Perhaps the 4 experienced board members that were on the former board should have informed the new members who were in their first meeting that they should not be taking a vote. After 4 years on the job you think that Addonizio and Bryson would have known this. Palazzo and Brick should have known and Superintendent Farley should have known. And possibly the new board members should have known But a mistake was made. Yes, it should have been made public. But what exact question was asked of the board that you state they lied about? What was the exact wording? Was it about the trigger being met or was the question specifically "did you vote to honor the contract that the former board had signed". Because the former is what Farley has stated they voted on. “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.’ ” There are only 3 new trustees. They do not have a majority vote. I have no idea why they have closed meetings other than confidentiality for students and employees at times.
shelly March 11, 2011 at 08:51 PM
Capo Parent, I replied below to you but I wanted to add that it was the former board that signed the contract. Do you believe that CUSD should not honor its contracts. Is it legal not to honor contracts? Not honoring contracts would make CUSD vulnerable to lawsuits. Also, the teachers worked for the restored pay and our children have two more days of school. The teachers were not given it but worked or are going to work for it and it was it not given to unions but earned by CUSD employees.
Eva Platts March 11, 2011 at 09:11 PM
To Shelly= Thank you for your post about "I know the power of a good teacher". I was raised in a similar situation and a few good teachers literally saved my life! It can take ONE good,caring teacher to help a child that will affect the rest of his/her life!
Capo Parent March 12, 2011 at 12:35 AM
If the restoration language was in fact triggered, then the restoration of the furlough days and pay cuts was proper. If the restoration language was not triggered, then the restoration of the furlough days and pay cuts was improper. Whether or not the restoration was in fact triggered is at issue.
Capo mom March 12, 2011 at 01:38 AM
@shelly "I have no idea why they have closed meetings other than confidentiality for students and employees at times." If you have no understanding of the purpose or intent of the Brown Act, it is not surprising that you are unconcerned when it isn't observed.
shelly March 12, 2011 at 07:11 AM
Capo mom, My statement was meant to say that closed meanings should be for decisions that require confidentiality. I am sorry if you were confused by it. I am of the opinon that all other meetings and decisions should be conducted in public. This is not what has occurred in the past. Maybe we can all work together to change this and encourage the board to conduct business differently now that we have new board members. The reform board still has a majority but maybe we can encourage all on the board to conduct business more openly instead of how it was conducted in the past. Where did I state that I have no understanding of the purpose and intent of the Brown act and that I was not concerned when it isn't observed?
Penny Arévalo March 12, 2011 at 04:00 PM
About the reformers having the majority, at least by looking at the votes, I'm not sure this is true. In the six public meetings I've been to since the new board was seated Dec. 7, I don't think there's been one vote that has gone 4-3 along the lines you would think they would. If any pattern has emerged, it is a 5-2 vote, with Ellen Addonizio and Sue Pallazo voting against and Anna Bryson and Jack Brick joining the new board members.
Capo Parent Too March 12, 2011 at 06:05 PM
Your comment follows the idea that this board SHOULD be split along some kind of philosophic line when it could be a sign that these trustees just want to work together and move forward regardless of their differences. It could be possible that regardless of those differences, they can agree on basic ideas about education and getting things done for our district. The "Reformers" do have a majority because they ran together, Tony Beall declared victory unless it fits his political narrative, then he claims this board is ruled by the union. It can't be either or. It could be that we have Trustees that are merely attempting to do their best and think for themselves rather than voting as a block. Unfortunately, the story will be told to however Mr. Beall thinks it most suits HIS cause (Not here at the Patch, but I mean the story he likes to weave). Now does everyone have to vote the same, of course not. But it has happened, there have been 7-0 votes, does that mean there is some conspiracy there? No. Many thought the new Trustees wouldn't vote for the Charter school, they did, the vote went 7-0. So this isn't about an either or but about the board attempting to work together and move this district forward, it's very hard to do when there are people hell bent on making it as politically divisive as possible.
Penny Arévalo March 12, 2011 at 07:17 PM
No, I'm not saying the board should or should not be anything. The board members are obviously free to vote anyway they like. I'm only pointing out the observation that there has not been one vote that has gone 4-3 (which supports your contention that they are working together). I contend nothing. I'm saying that if there is a trend, it's more the 5-2 trend I mentioned. I am pointing out a fact to aid the discussion.
shelly March 13, 2011 at 12:41 AM
Hi Penny, How many votes out of total votes have been 5-2?
shelly March 13, 2011 at 12:57 AM
Four of the 7 current trustees were supported financially and otherwise by the "reform" group in their campaigns so that is why they are referred to as "reformers". I hope the current board researches the issues of CUSD and makes decisions based on what they believe is best for the children of CUSD. This is why they were elected. It would really be great if we could open up our minds and be more concerned for what is best for our community and children and not what is best for our "side". The anger and side taking in our district is really not useful or productive at all.
Penny Arévalo March 13, 2011 at 01:00 AM
I'd have to check my notes and the minutes. There are many items on the agendas about which I don't end up writing. There are lots of items that do get unanimous approval. Items having to deal with money have been going 5-2, such as the restoration of the two instructional days to the academic calendar (Jan. 11 meeting), acceptance of the second interim report on the current year budget (this past week's meeting) and the vote to not renew the temporary contracts of 346 teachers, nurses, psychologists and counselors (334 of which are teachers) from the Feb. 22 meeting. That latter vote was technically 4-2 because Dr. Gary Pritchard was absent.
Lori Walker March 13, 2011 at 01:59 AM
Our school district boasts excellent test scores and high graduation rates. We do have many wonderful teachers, classified staff and administrators despite the financial difficulties that all California School Districts are facing right now. Several of our families are very involved in our schools and in our community. And many many of our students come from families who truly care about their children's education. No situation is perfect and we do have problems. But rather than arguing about it, why not go to the local school and offer to volunteer and help. Why not contact the school district to see what you can do to become more involved and support our school board and administration. There has been so much "mud slinging" for far too long. I agree with Shelly.....this anger and the business of "taking sides" is not doing anything positive. I personally do not think that the School Board purposely did anything wrong. But between the DA's office and Mr. Reardon's attorney, let them figure it out. I would rather stand in support for my school district AND for my students!!
shelly March 13, 2011 at 03:17 AM
Was the vote to honor the contract or restore intructional days or change the calendar? Also you mention only 3 items that deal with money that are a 5-2 vote. Is this what you are considering to be a trend or are there more 5-2 votes? Were these the only items that the board voted on that have dealt with money? For example the charter school was 7-0 vote and will cost the district 1 million and more.
Shripathi Kamath March 13, 2011 at 06:50 PM
:-) If only we grilled our national reporters so much for clarification...
Penny Arévalo March 13, 2011 at 08:47 PM
It's the weekend, guys. I get a break, too! I don't think you'll see a huge trend of 5-2 votes, but you can see the beginning of a trend when it comes to financial decisions, as I said. There's only been 7 meetings since the new board was seated. Probably too early to call anything a trend yet. As for the question about the Jan. 11 vote, that's a good question! It was presented at the meeting as more of a house-keeping item to adjust the calendar and let everyone know that there are two more school days for students. However, it did have a "financial implication" of $2.8 million, which was the cost to restore the days. It was on the consent calendar, which doesn't require a roll-call vote.
shelly March 13, 2011 at 10:14 PM
Hi Penny, Enjoy your weekend and take a break with your family. Don't answer this until Monday. So the vote was not to restore the days but change the school calendar. If it is only the three 5-2 votes out of 7 meetings then I agree it is too early to call anything a trend or even to call it the beginning of a trend. If you are going to call it the beginning of a trend on board votes on financial decisions then you would need to look at every vote taken in the 7 meetings that had any "financial implication. Weren't there other votes in the 7 meetings that were financial decisions or had "financial implications" that were not 5-2?
Penny Arévalo March 13, 2011 at 10:42 PM
You can hear audio the Jan. 11 meeting here: http://cusd.capousd.org/cusdweb/boardaudio/1-11-11/01-11-11%20Meeting.mp3 If I recall correctly, the agenda item in question is at the 40 minute mark.
Capo Parent Too March 13, 2011 at 11:32 PM
Penny, it was you who said, "If any pattern has emerged, it is a 5-2 vote, with Ellen Addonizio and Sue Pallazo voting against and Anna Bryson and Jack Brick joining the new board members." As someone who is reporting on school matters, you can't say something like this without backing it up with some facts. So now it's too early to say there is a trend? What you say matters and you do need to realize that you have a responsibility. This board's latest attacks are politically driven. Does it mean that the board doesn't have a responsibility to disclose what they've done? Of course not and they have a meeting schedule on Wednesday to address the issue, which hasn't been written about here. http://capousd.ca.schoolloop.com/news/view?d=x&id=1298973725057&group_id=1218998864154&return_url=1299900832858
Penny Arévalo March 14, 2011 at 12:20 AM
I do try to be careful with my words. For now, let's change "has emerged" to "is emerging." Either way, the verb "emerge" is important. As I've said, there's only been 7 meetings. The news is straight news. What you all do with it in the comments section is up to you, our readers. And I wrote that story, the meeting "pre" as we call them, yesterday. I don't don't know why it's not up yet
shelly March 14, 2011 at 02:17 AM
Hi Penny, It is two 5-2 votes that you have mentioned that are actual financial decisions. These two 5-2 votes are what you are calling an emerging trend out of 7 meetings. I am still wondering about other financial decisions that the board has voted on in the 7 meetings and what the break down of votes were. I will research the board minutes and see what the count is.
shelly March 14, 2011 at 02:31 AM
Whatever the board did or didn't do or whatever mistakes they have made I think it is a great idea for them to have a meeting to discuss it publically and admit to what mistakes they have made and try to correct them. It is always better to be open and honest about mistakes because it shows a willingness to correct mistakes and avoid them in the future. I hope that the meeting, Capo Parent Too, mentioned above occurs and that whatever happens it helps to bring more openness to our district.
shelly March 14, 2011 at 04:29 AM
The agenda for the March 16 special meeting is up. Item 2 discusses the restoration of the furlough days. According to the supporting documentation there was no vote of whether or not to award furlough days. The restoration was triggered by the adoption of the State Budget on October 8, 2010. The state-funded revenue amount per student was above the forcasted amount and this is what triggered the restoration of the furlough days. The furlough days were to be restored according to the ' contracts. So the vote was not whether or not to add furlough days but as stated in the article in Patch, “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.’ ” https://capousd-ca.schoolloop.com/cms/page_view?d=x&piid=&vpid=1293638734307

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