Caught in Violation of the Act

After months of investigating a number of closed sessions and day-long "performance evaluation" meetings held between 2003 and 2006, the Orange County district attorney's office has found that the Capistrano Unified School District board of trustees who served during that time repeatedly violated open-meeting laws by discussing building contracts, how to manage the press and public opinion, change orders for big projects and a slew of other topics—and never reporting them out to the public. Because of the complex and stringent nature of the law that was violated, the district attorney will not be prosecuting the violations.

In a report released today, Senior District Attorney William Feccia says the Brown Act—the state open-meeting law that gives the public access to all matters discussed by their elected officials—was designed with special instructions for the various topics discussed in the so-called "performance evaluation" meetings. "The purpose always is to evaluate the past performance and set goals for the future, not to discuss pending litigation, settlements of pending litigation, construction contracts," says Feccia.

The other problem, he says, is that evaluation meetings don't require elected officials to report out to the public, since the subject of the meeting is strictly personnel performance. Because of this, the broad range of topics discussed in the district meetings were never immediately reported to district parents and voters, as is standard with closed-session meetings. "Their use of this evaluation of the superintendent exception was extraordinarily broad," he says.

Feccia says that the DA's office did not want to delay the publication of its findings any longer. "The number of violations here are of such a nature that we need to act now," he says. Thirteen violations were found in the analysis, among them the discussion during a July 30, 2005, performance-evaluation meeting of a cost increase to the $22 million administration building contract. The cost overrun was never identified on the agenda and was presumably talked about under the "New Education Center" item. The superintendent negotiated a $3.8 million agreement, and the board voted on it in closed session on Aug. 8, 2005. None of this was ever reported to the public.

The closed meetings were an area of investigation during a year's worth of grand jury testimony conducted by the DA's office. The testimony led to the indictments of former superintendent James Fleming and former assistant superintendent Susan McGill on separate charges last May (see "Hard Knocks," Oct. 5).

The DA further found that none of the 36 items discussed in the "performance evaluation" were lawful under an exception cited by Fleming when he put the items, which ranged from school conversions and public comments to administration reorganizing and requirements for teacher dismissal, on the 2005 agenda. The DA investigation also found that the board and superintendent attempted to limit public participation in public meetings and that there was "a desire to manipulate press and public opinion behind closed doors."

"That such discussions are undertaken in secret by a body charged with the community's most important obligation, to adequately educate its young, is nothing short of disturbing," the report states.

Marlene Draper, who was board president at the time, justified the all-encompassing performance-evaluation meetings in her grand jury testimony: "The superintendent is responsible for every single thing that goes on in the district," she said. "So all issues pertaining to management of the district fall under his evaluation."

"If that were the law, then virtually that exception would swallow the entire Brown Act," Feccia responds. "You could talk about anything and everything as long as you labeled it under the evaluation of the superintendent. . . . That is not the law. Never has been."

Apart from the "evaluation" meetings, the DA also found that the board violated the law when it discussed a $22 million contract for the new administration building in 2003 in closed session. Board member John Cassabianca justified the meeting by stating in his grand jury testimony that the subject matter involved "a lot of detail on a lot of financing sources and things of that nature." According to him, such meetings appeared to be the norm: "What we would do, [sic] have a closed session, bring the pieces together, and then have a discussion in open session on a lot of it." But according to the DA's findings, that was not proper board protocol, as talking about things to be voted on could lead to the influencing of votes. "If this is a description of how the board regularly conducts itself, it is no surprise that many of its final votes are unanimous or nearly so," the report states. The board at the time of these meetings consisted of trustees Draper, Casabianca (no longer on the board), Sheila Benecke, Mike Darnold, Shelia Henness (no longer on the board), Crystal Kochendorfer (no longer on the board) and Duane Stiff.

Feccia says the DA will not be prosecuting members who were on the board during that time because of the complicated nature of the law and the stringent requirements for criminal prosecution, among them proving beyond a reasonable doubt the board members intended to keep information from the public or knew full well they were violating the law. (Fleming cannot be prosecuted for Brown Act violations.) The findings will be sent as a report to every locally elected public official in the county, and CUSD trustees will be given a "reasonable amount of time" to formally accept the DA's findings and commit to cease violations of the Brown Act. Although recommendations for how to follow the law are included in the report (taping open meetings and transcribing all closed session meetings, among them), the board is not required to implement them. "There is now sufficient information that they should know, they have reason to know when they're violating [the law] and when they're not," says Feccia of the report. If the board disputes the findings, the DA will move forward with a civil suit.

District officials are expected to release a statement today.


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