Guest Editorial: Did School Board Violate the Brown Act?

The following is a letter sent to Trustees of the Benicia Unified School District as well as district office personnel by Jill Ray, a parent with three children in Benicia High School, two who have already graduated and one in elementary school.

Benicia Unified School District Board Members and District Office Personnel:

Based on rumors that our high school principal was going to be ‘Pink Slipped’ at the March 1st School Board Meeting, I organized a group of concerned citizens to attend the February 16, 2012 School Board Meeting at 7pm to voice their support during the Open Session - Public Comment period.

I sent each of you a copy of my January 20, 2012 email, which was sent out to friends, acquaintances, teachers, district personnel, and the media. The email included the date and time I was rallying people to attend the School Board Meeting and also included a link to the Facebook Page I created. When the School Board agenda came out, I reviewed it, noted the School Site Administrator position was not listed and I once again announced, via the Facebook Page, that everyone should attend and speak during the 7pm Public Comment period. 

I was shocked, when the School Board came out of Closed Session, shortly after 7pm, and the HR Director announced there was a ‘3-2 vote to move forward with placing the School Site Administrator's Pink Slip/Reassignment on the Closed Session Agenda at the next meeting.’ If you knew we were coming at 7pm, why would you vote on this non-agendized item at 6pm?

According to the School Board Agenda, Item #4:

“The Governing Board will discuss personnel matters and review the Personnel Action List, prior to taking public action under the Consent Calendar of the agenda. A summary sheet of positions under consideration is attached.” 

According to the Brown Act:

“At least 72 hours prior to a regular meeting, the body must post an agenda containing a brief general description of each item to be discussed or transacted at the meeting, including items to be discussed in closed session. (§ 54954.2(a).) The Act makes it clear that discussion items must be placed on the agenda, as well as items which may be the subject of action by the body.” 

The Brown Act provides further clarification for Closed Session items as follows:

At least 72 hours prior to each regular meeting, legislative bodies must prepare an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session. (§ 54954.2(a).) A description of each item generally need not exceed 20 words, although the description must be sufficient to provide interested persons with an understanding of the subject matter which will be considered.

Nowhere on the Summary of Personnel Action List published for the 2/16/12 School Board Meeting is the ‘School Site Administrator’ position listed that was voted on in Closed Session. I had no idea the item was to be considered during the 6pm Closed Session. Had I known, that was your intention, I would have rallied supporters to be at the meeting at 6pm to speak during “Public Comment on Closed Session Items” portion of the agenda.

To follow are provisions the Brown Act does provide to allow for non-agendized items to be discussed and voted on: 

Exceptions to Agenda Requirements

The Act identifies three situations in which a body is permitted to discuss or take action on a matter at a regular meeting where the matter was not first described on a duly noticed agenda. (§ 54954.2(b).) Prior to discussing a matter which was not previously placed on an agenda, the item must be publicly identified so that interested members of the public can monitor or participate in the consideration of the item in question. 

The body may discuss a nonagenda item at a regular meeting if, by majority vote, the body determines that the matter in question constitutes an emergency pursuant to section 54956.5. (§ 54954.2(b)(1).) Any discussion held pursuant to this exception must be conducted in open session, since emergency meetings held pursuant to section 54956.5 cannot be conducted in closed session. 

The body may discuss an item which was not previously placed upon an agenda at a regular meeting, when the body determines that there is a need for immediate action which cannot reasonably wait for the next regularly scheduled meeting. (§ 54954.2(b)(2).) However, the Act specifies that in order to take advantage of this agenda exception, the need for immediate action must have come to the attention of the local “agency” after the agenda had already been posted. (§ 54954.2(b)(2).) The Legislature’s choice of the term “agency” rather than “body” seems calculated to limit use of this exception by prohibiting its usage if the local agency, i.e. staff, and not merely the body, had knowledge of the situation requiring action prior to the posting of the agenda. Lastly, the determination that a need for immediate action exists must be made by two-thirds of the members present or, if two-thirds of the body is not present, by a unanimous vote of those remaining. (§ 54954.2(b)(2).) 

I do not believe, given the length of time this rumor has been traveling through our community as well as the March 1st School Board meeting Pink Slip deadline requirements, that this item could possibly fall under any of these provisions to have allowed for the vote that took place on February 16th. Trying to avoid dissenting public comments on any given subject is not sufficient reason to rush the process.

Furthermore, the Brown Act explains:

The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body. 

Why were other positions listed on the Summary of Personnel Action List and the School Site Administrator position was not? By not listing it, you essentially made it impossible to allow the public our right to voice our concerns before the vote was taken. 

In all the years that I have been a parent in this district, I have heard people voice their distrust of the School Board and the District Office. While I understand that the School Board has the potential to change composition every two years and the District Office Personnel changes every so often – the public sees you as a ‘group’ with history. Actions like this cement the idea of ongoing corruption and secret dealings in the publics’ collective mind.

We vote you into office to represent us – not speak for us – but listen to all sides of an issue, do your own investigation, ponder the information, and act in the best interest of our children, our school district and our community. When you deny us the basic rights that the Brown Act provides, you eliminate our voices and who are you left listening to?

I have been involved in all levels of this district. I have worked to improve the environment and education of our children. I have also fought against waste and inefficiencies. Some of you might recall, I was one of three committee members who worked on the Cent$ible Injunction. We fought against a group who wanted to spend $150,000-250,000 of school funds on a special election to unseat a board member for a seemingly personal vendetta. By all accounts, we were successful. 

Now, apparently someone feels there is something so egregious going on at the high school that you have to spend much needed school funds to recruit a new principal. 

I have my deficiencies as do each one of you. Should we all be replaced or should we work on those deficiencies to become better? I have sent emails to each one of you on a variety of subjects over the last few weeks, months and in some cases years, that have gone unanswered – should we replace you?

My boys graduate in ’13 and ’14 from BHS. In six years, my youngest starts high school.  How many principals will we go through between now and when my youngest becomes a freshman? I am in it for the long run, how about you? How are your decisions today going to improve my childrens’ future? 

I question the motives of the District Staff who decided to bypass the Brown Act procedures and rush this to the School Board in Closed Session. Furthermore, I don’t understand why you, the members of the School Board, voted on this issue in clear violation of the Brown Act. I respectfully request that the vote you took on February 16, 2012 in Closed Session be revoked and/or invalidated. In addition, should you decide this action does need to move forward to a future School Board Agenda, I would expect you to ensure the District Office staff is in full compliance with the legal requirements of the Brown Act.

Here is one more section of the Brown Act that I feel compelled to share:

Section 54963 provides that no action may be taken against a person for: 

Expressing an opinion concerning the propriety or legality of actions taken by a legislative body in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action. 

If, in fact, the School District’s Legal Counsel stated that you did not violate the Brown Act with this vote, it may just be time to find new legal counsel for the district that will provide better advice so as to avoid future negative legal consequences.