Metaphorically finding plenty of firearms and the air reeking of cordite but not quite any smoking guns, the Orange County D.A.'s office backed away from its earlier conclusions that a notoriously Brown Act-averse school board had actually broken the law. Scott Martindale explains for the Orange County Register.

SAN JUAN CAPISTRANO – Orange County investigators have withdrawn an accusation that the Capistrano Unified School District violated the state's open-meeting laws in a series of recent school board meetings, even as they admonished the district for fostering a "seemingly toxic atmosphere" marred by "political theatre," "disdainful condescension" and the "appearance of impropriety."

In an unsigned report released Tuesday, the Orange County District Attorney's Office announced that a second inquiry into the alleged Brown Act violations turned up inconclusive and inconsistent evidence.

Tuesday's report reverses a stinging May report by the D.A.'s office that concluded Capistrano's school board violated the Brown Act three times between December and March, as trustees sought to partially undo pay cuts for all district employees at a cost of $9.1 million.

"The investigation in this case was hampered by the lack of written records/minutes or recordings of the closed sessions," the report says. "... Ultimately, this case illustrates that the avoidance of the appearance of impropriety is just as vital as the avoidance of its reality. Public confidence in government is adversely affected by both. Whenever there is official secrecy, behind-closed-door meetings, or attempts to avoid public attention, suspicion of wrongdoing will invariably arise. Once it arises, it is most difficult to dispel."

In particular, the D.A.'s office admonished the school district for not tape-recording its closed-door meetings. In 2007, as part of a legal settlement over Brown Act issues, Capistrano Unified agreed to audiotape all of its closed-session meetings. But the practice was subsequently curtailed, baffling D.A. investigators.

"The superintendent noted that recording had not been required, only recommended, by the OCDA," the report says. "One trustee reiterated that there was no obligation to follow the recommendation of the OCDA because 'that was just a recommendation.' It is recommended that the board return to recording its closed sessions and taking written minutes."

In May, Capistrano's board was faulted for a string of three Brown Act violations stemming from its decision to partially reverse employee pay cuts in phases beginning in December 2010. But after the D.A.'s report was released, district officials presented evidence that they said did not support the D.A.'s conclusions, and asked investigators to reopen the case.

A district spokesman said Capistrano Unified would be issuing a statement later in the day Tuesday.

The D.A.'s office initially said the board violated the Brown Act on Dec. 13 and Jan. 26 by meeting behind closed doors to discuss restoring employee pay cuts and taking votes it failed to disclose.

In Tuesday's report, the D.A.'s office indicated that the substantive discussion of the pay cuts decision occurred Dec. 7 and, at most, appeared to be briefly revisited on Dec. 13. Further, the Dec. 7 discussion was properly placed on the agenda and, under labor rules, a report on the action did not appear to be required, the D.A. said.

"The true nature of the meeting, however, has been more difficult to resolve given the conflict in the available evidence," the report says. "Some evidence indicated that the substantive decision to restore furlough days was made at that meeting instead of the earlier Dec. 7, 2010, meeting."

Similarly, for the Jan. 26 meeting, the D.A. concluded no Brown Act violation had occurred, but investigators noted that the discussion "furthered the appearance of intentional concealment" of the pay restorations.

The D.A.'s office also initially said that in the middle of a March 16 meeting, Capistrano trustees abruptly called a recess and five of them were observed continuing deliberations out of earshot of the public, allegedly violating the Brown Act a third time.

"Subsequent investigation could not establish that, in fact, a "meeting" of a quorum of the board took place behind the dais," the report says. "All that could be established was that two of the trustees conversed about the motion. ... While the appearance of a violation was again manifest, the evidence developed in the inquiry was not sufficient to sustain a finding that a Brown Act violation had occurred."

Beginning in December, Capistrano's school board restored employee pay cuts in phases at a cost of $9.1 million. Two furlough days were reversed for all employees, teachers got back part of their 3.7 percent salary cut, and all non-teaching classified employees had additional furlough days reversed.

A San Juan Capistrano schools activist, Jim Reardon, sued the district earlier this year over the alleged Brown Act violations. But an Orange County judge tossed out his lawsuit last month, ruling that the district had adequately and properly addressed the purported legal gaffes.

In Tuesday's report, the D.A.'s office painted a portrait of a school district still roiling in political turmoil.

In November 2010, a contentious school board election replaced three of the seven school board seats with candidates who were elected with help from the district's teachers union. Previously, all seven seats had been occupied by trustees endorsed by the anti-union Committee to Reform CUSD.

The D.A.'s office indicated that political bitterness was continuing to infect the school district.

"Evidence revealed examples of condescension or disdain for other board members or dissenting members of the public," the report says. "Meaningful discussion was replaced by facetious motions and political theatre. Accusations and recriminations were repeatedly recounted. The motivations of colleagues and others were questioned or impugned. ...

"One was left with the impression that the very object of the entire organization, the education of the community's children, had been allowed to fade into the background. The public has a right to expect that those charged with educating their children lay aside their personal animosities and agendas to focus on the true purpose of the positions they occupy."