OPEN MEETINGS -- An Orange County Superior court judge has concluded that the board of the Capistrano Unified School District violated the Brown Act in August 2008 in its concealment of a closed-door disciplinary action against its then-superintendent, the fifth time the board has been reprimanded for violating the open meeting law in the past three years, reports Scott Martindale in the Orange County Register.

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.

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.

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."