[UPDATED with Supt. Farley's Reaction:] Capistrano Unified School District Off the Hook for Brown Act Violations, DA Decides

UPDATE, SEPT. 20, 3:05 P.M.: Capistrano Unified School District Superintendent Joseph M. Farley, who was informed in May by the district attorney that he and his Board of Trustees violated the state's open meeting law during three of the previous six months, today welcomed a DA report that concluded no evidence could sustain those allegations.

"We are pleased that the District Attorney listened to our concerns and reopened the investigation. After a more thorough review, no Brown Act violations could be substantiated and we are pleased that the findings reversed the District Attorney's previous conclusions," Farley states in a district statement.

Farley continued: "The education of this community's children continues to be the top priority for both staff and elected members of this organization. We devoted the past school year to a rigorous focus on classroom instruction. This is proven by the most recent test scores, which again show CUSD being the highest achieving large school district in California."

ORIGINAL POST, SEPT. 20, 1:18 P.M.: The Orange County District Attorney's office has concluded there is insufficient evidence to prove the Capistrano Unified School District Board of Trustees violated that state's open meeting law in December 2010, this past January and again in March.

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This is, of course, the same OCDA that sent district Superintendent Joseph M. Farley a letter in May that alleged the board committed "multiple violations" of California's Ralph M. Brown Act. However, District Attorney Tony Rackauckas concludes his just-released, 27-page report with a stern scolding that makes CUSD's leaders come off like whiny second graders.

That May

The report that was issued Monday but announced today (and which you can read here) bears the stamp of Rackauckas, who finds that, "Although an appearance of violations of the Brown Act occurred, the evidence developed has not been sufficient to establish their actual occurrence."

Um . . . huh?

The DA claims that the CUSD provided additional information about the meetings in question that led prosecutors to conclude, erm, "our bad." Specifically, the December closed door meeting participants--some of whom were new trustees whose only education concerning the Brown Act was being handed a pamphlet about it--could not agree on what actually happened while being interviewed by DA investigators. For instance, one mentioned a vote being taken--a vote whose results should have been revealed to the public, under state law--but others referred to it as an informal poll.

In December and January, participants also disagreed about whether the superintendent had informed the board behind closed doors that the furlough days had been reinstated without a vote by trustees or if he was merely proposing it--something the DA blames on one particular unnamed trustee's faulty memory rather than deception.

As for the incident behind the dais in March, the DA could not establish that a quorum of board members were even present for the informal discussion.

The district's spokesman vows to have a response to T-Rack's report for the Weekly "soon."

While Rackauckas let the board, superintendent and other administrators off the hook when it came to Brown Act violations, the last part of his report includes the actual Brown Act (so trustees can have more than a pamphlet to refer to), a long explanation of the correct way for public agency board members to conduct themselves and inform the masses about their actions in California, and a stern scolding that faults the CUSD for . . .

  • The way it lists agenda items, characterizing them as borderline deceptive;
  • "The conduct and some contradictory statements of CUSD officials" that "created an appearance of impropriety" and left the public they supposedly serve with a "bad impression";
  • A Dec. 13, 2010, closed-door meeting where the DA could not figure out what actually happened because the district's record-keeping is so shoddy. Keep in mind that the district had promised to record its closed sessions after previous Brown Act violations in recent years. The DA notes that the board later killed that policy . . . in secret, of course;
  • Confusion over when furlough days were established, whether they were established and the way (or lack thereof) the public and media were informed about a controversial issue that was sure to draw more criticism to a district that was swimming in it;
  • Minutes on closed sessions in December and January when a vote on restoring teacher pay cuts was obviously taken despite CUSD stating "no action was taken." The superintendent decided to inform the public a month later (and in a very limited way) because it was a "politically charged issue" and he sought to "restore calm," notes the DA;
  • Two board members "theatrically" leaving a March public meeting during time set aside for people to air their feelings about the furlough and salary decisions having been made in private;
  • At that same meeting, the superintendent contradicted himself publicly from the month before, indicating a vote on furlough days had been taken in December, something that further added to the distrust and confusion surrounding the CUSD at that time;
  • Also in March, that impromptu meeting behind the desk during recess was based on a trustee's motion made in public session (and seconded by another) that was actually a joke directed at critics in the audience. The stunt added to the district-created atmosphere of not taking seriously public input, the DA noted (let alone democracy, I'd add myself);
  • "A seemingly toxic atmosphere within the halls of the CUSD";
  • CUSD accusations that the DA investigation was "politically motivated" against a "teacher union-run" district. T-Rack denies this, obviously.

Rackauckas' conclusion:

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 rise. Once it arises it is most difficult to dispel. Responding to political theater, disdainful condescension, or procedures where the appearance is one of predetermined decisions are not likely to dispel that suspicion. Elected officials may then discover their jobs have become far more frustrating than would have been the case had they openly embraced the "active and critical" participation of the public they are elected to serve.

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