With Protest from Two Trustees, School Board Reaffirms Controversial Restorations

An attorney representing the district explains why no Brown Act violations were committed when the first vote was taken. Two trustees walk out in the middle of the meeting.

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?

Capo Parent Too March 17, 2011 at 03:38 PM
Thank you Jenna.
Capo Parent Too March 17, 2011 at 03:44 PM
Sorry Penny and Jenna, I'm a little frustrated by the whole situation.
Penny Arévalo March 17, 2011 at 04:19 PM
The letter from the lawyer representing Ellen Addonizio and Sue Palazzo does not threaten a lawsuit but does ask the district to cover his attorney's fees because of the "serious and actual conflict of interest between Ms. Addonizio and Ms. Palazzo on one hand and the remainder of the board along with Mr. Sleet's factual conclusions stated in his March 11, 20011 letter and the potential serious consequences for a finding by a court that Brown Act violations occurred." We'll be posting the entire text of that letter in a few moments.
shelly March 17, 2011 at 08:45 PM
Is there a vetting process for whom the district can hire as an attorney? Will the taxpayers be paying for Mr. Alexander's services? Will this money come out of the classroom?
shelly March 17, 2011 at 08:47 PM
Did Craig Alexander donate money to either one of Addonizio's or Palazzo's campaigns?
Capo Parent Too March 19, 2011 at 03:52 PM
So where is everyone to comment on this?
April Josephson March 19, 2011 at 04:52 PM
I'll comment: "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." I am happy to live in SVUSD. I have never heard of anyone in our district making and seconding ridiculous motions such as this one, then recessing a public meeting in the middle of a motion. IMO (and for shelly's benefit that means In My Opinion) not only is this offensive but it also leads to off the record talk that should be on the record since it violates the Brown Act if not made during the public meeting. I am absolutely shocked that any elected public official would behave in such a manner, let alone an attorney. I certainly hope that this board will shape up. This is a horrible example for the children CUSD is supposed to be educating.
Capo Parent Too March 19, 2011 at 07:35 PM
LOL, it was a joke! It was a badly done joke. Alpay was not SERIOUS. What was serious was the fact that the district couldn't actually conduct business because Sue and Ellen showed up with a lawyer rather than sit and talk about their issues with the board as elected officials should do during open meetings. So the Trustees that actually did what was asked of them to cure and correct, to be available to people to answer the questions, where no one actually came to ask the questions, did so are the awful people but Sue and Ellen who got lawyers rather than defend their opinions and represent their constituents are not at all questionable? Seriously? I'm at a loss here. They made a big deal that this vote come out in public and yet refused to actually talk about in in public.
Capo Parent March 20, 2011 at 06:03 PM
Capo Parent Too Yes, the making of the motion by Alpy was a bad joke, the new board is a bad joke, but their continued violations of the Brown Act are not a joke. Let's hope legal action is taken so we can find finally find out what the board has really been talking about in close session. As for the board curing and correcting, what did it cure and correct? It voted to reaffirm its prior votes, but none of those prior votes restored furlough days for CUMA and the Teamsters. So Capo Parent Too, maybe you, as a leading defender of the new board, can explain when did the board vote to restore furlough days to CUMA and the Teamsters, and how did the board's vote on March 16th reaffirm that vote? As for you being at a lost, that's not surprising given how lost the current board is. Maybe that's why Palazzo and Addonizio showed up with an attorney. I am curious, what issues did you expect them to discuss given how the dog and pony show was arranged? Did Sleeth really say that the use of the word "and" in the contract really didn't mean "and?" Is that how out of touch with reality the new board is? By the way, did you notice that once again CUSD is claiming that documents it created and published for a board meeting were not accurate?
Capo Parent Too March 20, 2011 at 09:09 PM
I am curious as to why you didn't show up to the meeting and ask these questions. You can easily get a blue card and ask questions, yet you would rather sit at a computer and accuse from far away. It seems a lot easier doesn't it? All this could have been addressed by Sue and Ellen if they had merely spoken their minds and said what they disagreed with, but they chose not to. Why would they even NEED a lawyer to do this? I don't understand why they need a lawyer to do their JOBS. And then they want the district to pay for a separate lawyer. No one is covering anything up, the whole point of the meeting was to allow Sue and Ellen a place to speak their minds and the chose not to. The other trustees did what was asked of them, even when they still contend no brown act violation occurred. I am not a lead defender, I am merely paying attention and reading what I have available to me, from here, Beyond the Blackboard and the Orange County Register. According the the OCR, the Brown Act expert said they have "cured and Corrected" and did exactly what they should have. It's not Sleeth who is arguing about AND< it's is Ellen and Sue and board members that are no longer on the board. And, yes, one after the other, what is so awful about that?
Lori Walker March 20, 2011 at 11:43 PM
April, I am offended by your comments! First of all, It is NOT uncommon for elected officials to take a break and call a recess during a public meeting. I have seen it done before and that is not a violation of the Brown act. It is acceptable for board members to take breaks. We have no idea what may have been or may not have been discussed during that break. I personally do live in CUSD and I am very proud of our schools and administrators. I believe that our three newest school board members are dedicated and talented professionals who truly care about our schools. They do seem to be working well with at least two of the board members who continue to serve. While I agree that SVSD is also a very good school district, please do not criticize our school district. And do not accuse Mr. Aplay of violating the Brown Act by taking a five minute recess which was legal.
Lori Walker March 20, 2011 at 11:53 PM
And I should add: IN MY OPINION, it was not a violation of the Brown Act! I am not an attorney so I am not an expert but I have seen this done in previous board meetings with the former board members.
April Josephson March 21, 2011 at 01:03 AM
Lori, let me clarify my comments. Yes, it is common for boards to take breaks during public meetings. To my recollection, I have never seen an entity, or been a part of an entity that is subject to the Brown Act, take a break while a motion is on the table. Breaks normally happen between agenda items. From what I have read, there was a motion made and seconded, then they went to a break and came back with the person who seconded the motion changing their decision from just prior to the break. That looks suspiciously like someone had talked to that person behind closed doors during the break. This is where I am suggesting a violation of the Brown Act COULD have been committed. This is a public agenda item in a public meeting. All discussion should occur in public while the agenda item is under consideration. BTW, I also lived in CUSD for a period of time. I know that both districts have good people and their own problems. What surprised me was that in a public meeting held for the purpose of fixing a problem relating to having a closed session on a public matter, this happened. While in a meeting on legal advice to cure a legal problem, why would someone act with such disregard for the public record and legal protocol?
Nathan Boas March 21, 2011 at 01:57 AM
Alright April...now I have to weigh in. All of your comments and positioning come from what you read? Read? You weren't even there? Before you blast the good people of CUSD, try showing up, participating, and rendering your opinion. Please! How do you know if anyone acted with disregard to protocol if you weren't even there.
Penny Arévalo March 21, 2011 at 02:50 AM
"That looks suspiciously like someone had talked to that person behind closed doors during the break." It really wasn't behind closed doors. They just huddled at the dais during the break.
April Josephson March 21, 2011 at 03:06 AM
Penny, did they speak to each other behind the dais during the break? Whether it was behind closed doors or behind the dais but off the record—where the public couldn't weigh in—I still question whether this is appropriate with a motion on the floor. As for Nathan's comments, I have said that all of this is only my opinion based on Penny's reporting, which I trust far more than other media reports. I wouldn't even express an opinion if I didn't believe that what Penny described is what actually occurred. Also, what is everyone's opinion of a trustee making a sarcastic motion and having it seconded in the first place? My original comment stated that I felt this was something that was not the best behavior on the part of the trustees. Does the public think it is a good example for the children?
Nathan Boas March 21, 2011 at 04:03 AM
Ahh. Now I get it. You are too busy to form your opinion based on your observations, so you adopt the opinion of someone else. Sounds logical. You trust Penny, so you spout her position. Then why bother to comment? We already have Penny there reporting. All you are doing is reiterating what she is paid to report.
Nathan Boas March 21, 2011 at 04:07 AM
In other words...if we want April's opinion, we'll just ask Penny.
Lori Walker March 21, 2011 at 04:20 AM
Well, I have stated my opinion also. And, in my opinion, the trustees did nothing wrong. I do not think that their behavior in any way warrants concern for children. These dedicated professionals took the time to explain a previous action and took a vote regarding the issue in public. Opinion or not, April .... this is not your school district and you apparently were not able to vote in favor of them or against them. In my opinion, the motion was not sarcastic. So why is it that you feel the need to criticize these people? Do you know any of them? It is something personal? Although I do not have a close friendship with the board members you have criticized, I have met them. I do not think that they are bad and dishonest. I think they are truly trying their best to do an honest and fair job. Especially for the three new trustees, please give them a break and let them do their job! And the fact that Anna Bryson and Jack Brick seem to also be working with them makes me very happy. Instead of being all one sided, our board is becoming balanced. People with varying opinions are allowed to be considered. And in the end, the majority of the vote makes the decision. Isn't that what Democracy is all about?
Shripathi Kamath March 21, 2011 at 04:21 AM
Penny, I appreciate your commentary, and want you to know, FWIW, that you do an objective analysis given the ridiculously disparate views some of us take towards your reporting on this matter. Please keep up the good work! There is no pleasing people who want what they believe to be true, even when it clearly is not. People, sometimes, there is no conspiracy. There simply isn't.
Capo Parent Too March 21, 2011 at 04:22 AM
I'm just at a loss that the most pressing issue is the bad joke by Alpay and not the fact that two trustees came to the board meeting with a lawyer and refused to actually speak up on behalf of their own constituents. I don't think anyone understands how seriously messed up their action was. They refused to take part in the special meeting. The trustees that people are blaming this all on were there and yet no one showed up to actually question them. The only outrage I see is here on the Patch and OCR in the comments. To me, that's not enough. If you cared enough, you'd show up and ask those questions in person, but you didn't. And even if you had, the two trustees that opposed the restoration on the basis of the word "and" didn't even speak on behalf of their argument, they refused to do so.
Shripathi Kamath March 21, 2011 at 04:23 AM
Well said, Lori. I do not agree with some of your characterizations, but I agree with the thrust of your comments.
Capo Parent Too March 21, 2011 at 04:31 AM
I'm sure it's not easy with such a charged issue as CUSD, which has been struggling for years. For some of us, we just want the politics to stop. Excuse me if my frustration seems to be with you Penny, it's with the situation and how this is taking the focus away from what's most important, education. I understand that people are not happy with the restoration of the pay, but it's the contract not the trustees. And that contract was signed last year. I've been living in Capo for a while now and I'm tired of this. It's time to move on. The meeting held on Wednesday was meant to address the issues brought up here and with the letter sent by Reardon and his lawyer. From what I'm seeing, it doesn't matter, there are some who won't be satisfied. Keep doing what you need to do here at the Patch and now it is not personal.
Capo Parent March 21, 2011 at 04:32 AM
You're so consumed by protecting the new board you can't see the trees or the forest. As for why didn't I show up at the meeting and ask questions obviously you have never been to a board meeting. It is not a question and answer session. Since the board's decision was predetermined (if you have read the meeting agenda you would know this) why waste my time, just so you can feel better about yourself and the new board. As for why Palazzo and Addonizio didn't speak, maybe you missed or didn't understand what their attorney stated. If the meeting to correct the allege non-existent Brown Act violation(s) was also a violation of the Brown Act, I assume you would agree that it was prudent and appropriate for Palazzo and Addonizio to remove themselves from an "illegal" agenda item. Then again, maybe the facts and the law don't mean beans to you, which surely appears to be the case.
April Josephson March 21, 2011 at 04:38 AM
Wow Nathan, I must've hit a nerve. How do you know what I am thinking or whether Penny knows my opinion? If you read my articles on RSM Patch, you'll see that I do attend meetings, observe and draw independent conclusions. One of my observations is that I trust Penny's reporting, based on personal knowledge and history. Since you do not have the capability of reading my mind, and I can't read your mind, I have no idea why you are so concerned with me having an opinion that is based on the combination of my own experience and Penny's description of what transpired. I believe it to factual. Given that, I am providing my opinion, just as you are providing your opinion that Penny and I will always have the same opinion. Penny reported, I opined based on her reporting, which I believe to be factual, and other corroborating information, which I do not have to explain or justify. You have concluded using faulty logic that Penny knows my opinion. Why are you so concerned? Oh, wait, is that sarcasm that I can't hear on the written record?
Capo Parent Too March 21, 2011 at 04:55 AM
Seeing as though I'm not a lawyer, I'm also at a loss as to what their damn letter means. I just see this as being one big game to them and that you know what they are thinking makes me wonder. What inside information do you have? You can throw accusations around and yet you know nothing about me. What new Brown Act violation? So they can feed information to their supporters and it's fine, guide a lawsuit against their own district and yet when the district wants to actually correct it and address it they want to THEN hide behind confidentiality? Is that what I am getting from this? What happened to wanting to have this discussion in the open and having trustees talk about why they restored the pay to the teachers and their thinking behind this? People could have STILL come and given comment to the agenda item even if they didn't agree with it. From people I spoke to, Mr. Reardon was given more than his three minutes to make his point rather than what the last board did, which was to limit comments to one or two minutes if people didn't agree with them. It sounds like this board is going above and beyond, and yet this isn't reported here! It's a blog, I would call it consumed. I was not aware you can't ask questions at a board meeting and that you can only comment on agenda items. But it still remains to be seen that so few people who supposedly care about this outrage here did not show up to talk about their frustration.
April Josephson March 21, 2011 at 04:57 AM
Lori, I appreciate your opinion. In response to your question as to why I spoke up here in the first place: I have been following what has transpired since the time I lived and voted within the district. This district needs to resolve a lot of issues and have all seven members work together in the best interests of the constituents, while being very careful to act in a lawful manner. If two trustees felt strongly enough to leave the meeting with a lawyer, to me, that is a red flag. I tend to err on the side of caution, and believe from all accounts that is what they were doing. What Penny described at the end of her report shows lack of experience and lack of caution on the part of some trustees. I was disappointed to see that, especially from an attorney. If that did not occur, Penny wouldn't have reported on it. My hope is that by pointing out that some trustees are being what appears to be cavalier with their statements and behavior, they might take a look at this and be more careful with their comments and actions in the future. Without that, I doubt there will be progress towards a positive resolution of these problems.
Lori Walker March 21, 2011 at 05:27 AM
Well, all I can say is that I am sorry you feel that way about our trustees and our school district. I hope that as time goes on you will feel differently. I do have trust in our new board members. I too am extremely concerned about the economic situation our State is in. Our school district has faced some difficult times in the past. I am hoping and praying for positive resolution in the future and with that I will say, "Good Night!".
Capo Parent March 21, 2011 at 01:31 PM
You're posts are all over the place, but let's see if I can help you. I have the inside information that Dr. Farley and Sleeth provided about the Dec. 7th meeting in violation of the gov't code section cited by the attorney for Sue & Ellen. Based on the letter by the attorney you can reasonably infer that Sue & Ellen firmly believe the whole truth of what occurred in closed sessions is not being provided. Since you claim Sue and/or Ellen have feed information to their supporters, what is that information, or is this just another wild *ss claim by you? Since you don't believe CUSD committed a Brown Act violation, what was or is it trying to correct? As for the March 6th meeting, when did the trustees talk about why they restored pay to the teachers and their thinking behind that decision. FYI, Reardon did explain to the board why it violated the Brown Act and what was the board's response - nothing. Why so few people showed up, you jest of course. The meeting was a preordained dog and pony show. The board majority had one objective, to reaffirm its prior votes, and thus hope to correct any Brown Act it may have committed, though it denies committing any. However, that begs the question that has been asked many times, with no answer given, when did the board vote to restore furlough days to CUMA and/or the Teamsters? If the board never had such a vote, how could it reaffirm a vote that never took place? Can you say Brown Act violation? Yes you can.
Capo Parent April 01, 2011 at 09:55 PM
A board doesn't take a recess with a motion made, seconded and pending without a vote of the board. Please tell everyone when the board voted to take a recess - you can't because it didn't. After taking a "recess" with the motion pending the remaining board members (5) huddled in the back of the dais. After returning to their places Brick unilaterally announces he was withdrawing his second of Alpay's asinine motion. I wondered what they were discussing in the back of the dais? So you're not confused, this was an open and obvious Brown Act violation.


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