With Protest from Two Trustees, School Board Reaffirms Controversial Restorations

Two trustees walked out of Wednesday night’s board meeting on the advice of their lawyer, as the rest of the board went on to reaffirm earlier actions to restore pay for the district's four employee groups. 

Craig Alexander—the attorney representing Ellen Addonizio and Sue Palazzo—told the board that his clients believe there were "material misstatements and material omissions of what occurred” in approving the restorations, particularly with respect to closed sessions Dec. 7, Dec. 13 and Jan. 11.

The board voted 5-0-2 vote Wednesday night to reaffirm the restorations amid allegations that the board had violated the state's open-meeting laws when it first enacted the restorations behind closed doors in December.

On Wednesday, the district’s lawyer, Jack M. Sleeth Jr., gave an overview of how the restorations occurred and said that at no time did the board violate the Ralph M. Brown Act. Notice was given to the public that action could be taken, he said, and the board's decision did not require a report out of closed session, as typically required under the law.

Three of the meeting’s four agenda items addressed the recent restorations of two instructional days to the school calendar and a bump in teachers' salaries. A labor contract struck with the teachers to end their April strike states the restorations would be made when and if the state released more money to school districts upon adopting its fiscal year 2010-11 and 2011-12 budgets.

Sleeth said the contract with the teachers’ union, the Capistrano Unified Education Association, triggered the restoration automatically. “The issue of the rule of law is when you enter into a contract, you’re supposed to abide by it,” he said.

The Oct. 8 state budget approved $225.08 more per student than district officials had been expecting, Sleeth said.

“If the money comes from the state, that’s a triggering event,” Sleeth said. He said he believes a judge would see it the same way.

But Addonizio said the board should have made a “finding of fact” that the restoration language in the teachers’ labor contract had been triggered. The interpretation should have come from the board, not the superintendent, she said.

“This is all happening backward,” she said. "We still need a finding of fact. It’s only fair to our constituents to honor  them and our employees." Then she and Palazzo walked out a little more than a half-hour into the one-hour special meeting.

Jim Reardon, the San Juan Capistrano resident who has threatened to sue the district over both the restorations themselves and the process used to approve them, disagreed with Sleeth.

“I think it’s important in the interest of public openness and governance that when the board takes action to spend millions of dollars, that they discuss it in the open, make a decision in the open and raise their hands and say, “I’m responsible for this action,’ and be judged by that,” Reardon said.

Superintendent Joseph Farley has said that the board discussed the restoration in , the first of the newly elected board. He said the vote was taken under an agenda item calling for "labor negotiations" and resulted in the board deciding to not interfere or delay the restoration of the school days and teacher salaries.

Reardon said it was “unlawful” of the district to automatically restore days and give salary bumps for the other employee groups.

“The argument that there’s an automatic restoration implied makes no sense whatsoever,” Reardon said. “CUMA [the district’s management group, which is not a union] has for years had different furlough days than teachers.”

Farley said that the only salary bumps the other employee groups received were connected with the restored furlough days. Unlike the teachers, they did not receive a partial restoration of previous cuts beyond the furlough days.

The staff’s recommendation for the third and final agenda item—the one to reaffirm “previously considered restoration of furlough days and pay for four employee organizations”—named each group as receiving furlough days and pay. The financial-implications section referred to charts that broke out how much the furlough days cost ($2.8 million for all employees) and how much the salary increases cost ($6.7 million for all employees, for a total of $9.5 million).

After the meeting, district spokesman Marcus Walton said the charts were there only to illustrate what would happen if all restorations were made. "The board did not restore salaries to the other employee groups," he said.

Much of the discussion about whether the restoration language was  focused on a section of the labor contract that said the state Legislature needed to adopt both the 2010-11 and 2011-12 state budgets before any restoration could occur.  The two budgets needed to slate more funds than first proposed in January 2010—the numbers the district had to consider at the time of the teachers’ strike.

Generally speaking, Sleeth said, “ 'and' means both, but in this circumstance, in this instance, there’s a reason why I don’t interpret ‘and’ to mean anything but ‘one after the other.’ ” He said a strict reading of the restoration language would have teachers working on restored days one year but could possibly have that pay retracted the next.

“If we have to wait until the 2011-12 budget is established, we’d have to be contemplating taking money back from people who already worked the day, and that’s against our laws in a whole lot of other places, including the [state] labor code,” Sleeth said.

But before Addonizio left, she disagreed. “When we said ‘and,’ we meant ‘and,’ and not ‘or.’ " She contended that this is the recollection of five of the seven trustees who approved the teachers’ contract at the strike’s end.

While Trustee Anna Bryson said she had no independent recollection of the contract using the word ‘and’ to tie restoration to the approval of two years’ worth of budgets, she resented Addonizio's contention that she knew what the board members were thinking when they approved the teachers’ contract.

Addressing Alexander, Addonizio's lawyer, she said, “Please make sure your clients never refer to my decision-making process, because no one knows what I was thinking except me,” and the audience applauded.

Before the board approved reaffirming the restorations, Trustee John Alpay made an alternative motion to breach the contract with the teachers "to completely disregard the rule of law, subject the district to lawsuits, needlessly waste taxpayer dollars, throw the district into turmoil and erode property values from San Clemente to Aliso Viejo."

President Jack Brick seconded the motion, and Alpay quickly asked for a five-minute recess. When the meeting was back in session, Brick withdrew his second of the alternative motion.

Alpay would not characterize his own motion, preferring it to "speak for itself."

After the meeting, CUEA President Vicki Soderberg gave Alpay a big hug and said, "Omigod, it was so funny. We got it. We got it."

Did you miss Patch's coverage of the last Capo Unified school board meeting?