Source: Orange County Register
Capistrano Unified School District Superintendent A. Woodrow Carter addresses the school board on March 9, 2009, the day he was fired. An Orange County judge has ruled that one of the discussions leading up to Carter's termination violated the state's Brown Act open-meeting laws.
SANTA ANA – An Orange County judge has ruled that Capistrano Unified's school board violated the state's open-meeting laws in August 2008 when it held a closed-door evaluation of its then-superintendent, the fifth time the governing body had been reprimanded in the past three years for Brown Act violations.
Superior Court Judge David McEachen in Santa Ana said last week that Capistrano Unified School District did not properly prepare the agenda for the closed-door meeting and thus failed to inform the public that it was holding a discussion about whether to put then-Superintendent A. Woodrow Carter on paid administrative leave. The agenda referred only to a "performance evaluation," not disciplinary action.
The school board's decision to suspend Carter five months later, in January 2009, was met with fierce opposition from parents, teachers and other employees.
McEachen also ruled that trustees should have provided notice they were bringing in a non-district employee for the evaluation session – school-law attorney Spencer Covert – who served as a one-time, pro-bono consultant during the meeting.
"Covert's attendance either should have been on the agenda, or constituted the improper inclusion of a member of the public in the session," McEachen said in a March 16 ruling. "... The agenda did not adequately set forth closed-session topics and is in violation of the Brown Act (open-meeting laws) as to the unnoticed attendance of attorney Covert and the proposed disciplinary action against Superintendent Carter."
The judge's ruling does not impose any sanctions on Capistrano Unified, which has been ordered not to violate the Brown Act again.
Repeated violations
Capistrano Unified's school board has been sternly reprimanded five times for repeated Brown Act violations, the first four by the Orange County District Attorney's Office.
The board was reconstituted entirely between the first four violations and the most recent one, with the new "reform" trustees pledging a new era of accountability and transparency.
"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, and thankfully, neither do the courts."
The teachers union, which was deeply critical of the school board's decision to fire Carter, initiated the lawsuit alleging the Brown Act violation in November 2008.
Trustee Mike Winsten, who was elected three months after the August 2008 violation, said he felt the judge erred in his ruling. And regardless, Winsten stressed, the violation was not of the same magnitude as in the past, when the D.A.’s office issued four consecutive stinging reports, the last of which said some former trustees had exhibited "disturbing disdain, if not outright contempt" for constituents when meeting behind closed doors.
“This was one incident 19 months ago, and there’s no hint or evidence it ever happened again,” Winsten said. “The Brown Act is so vague and ambiguous. Everyone is doing their best to comply with it.”
D.A.'s advice ignored
The D.A.'s office has said that ignorance of the Brown Act is not a valid excuse for elected officials, and has strongly urged Capistrano's school board to hire a full-time, in-house attorney who can provide consistency and expert advice.
But the 52,000-student district – Orange County's second largest – has yet to hire a full-time attorney, and as the district works to close an anticipated $34 million budget deficit, trustees have emphasized how much money they are saving by contracting out various jobs in the district office to part-time employees.
The school board employs about a dozen law firms that represent the district on a variety of specialized issues, from land acquisition to election law.
In its original lawsuit against the school board, Capistrano's teachers union also argued that trustees created an illegal quorum during a September 2008 school board facilities subcommittee meeting, when two trustees who were not members of the committee "began asking questions and/or making statements" at the meeting, thereby ceasing to be "mere observers."
The judge ruled there was no Brown Act violation in that instance, noting the two trustees did not engage in "substantive discussion or inquiry" at the meeting.
"The evidence submitted supports a finding that (trustee Ellen) Addonizio did not participate in the subcommittee meeting," McEachen said. "She asked the speaker to raise his voice so that she could hear and inquired as to when a topic might be discussed."
