http://almanacnews.com/print/story/print/2012/01/11/public-college-board-members-met-in-private


Almanac

Schools - January 11, 2012

Public college board members met in private

• All board members served on a committee that met in private to plan a political campaign for the district's $564 million bond measure.

by Dave Boyce

Elected officials have the privilege and the burden of making decisions that impact public life, and it can get complicated.

For example, all five members of the San Mateo County Community College District board served on a committee that met privately to run a political campaign for a bond measure. These board members put the measure on the ballot for the Nov. 8 election and then involved themselves as citizens in the politics of it. Was that legal?

With some exceptions, California's open meeting law, the Ralph M. Brown Act, forbids a quorum of elected officials from conversing about official business in private. Also, the public must be notified of the meeting ahead of time. But what if the conversation is tangential, for example a political matter that springs from official decisions?

Brown Act compliance in such situations is unresolved since it has never come before a judge, lawyers told the Almanac in recent interviews. And it is legal for school board members to engage in political campaigns for bond measures and parcel taxes as long as public funds are not involved, former county counsel Tom Casey said on behalf of the college district.

Recently this district asked voters to approve Measure H, a $564 million bond measure to build facilities on and provide equipment for the three college campuses. The measure just missed getting the required 55 percent voter approval; since 2001, voters had approved $675 million for Canada College in Woodside, Skyline College in San Bruno, and the College of San Mateo in San Mateo.

Running the campaign in support of Measure H was a nine-member committee consisting of presidents of two of the colleges, the district chancellor, the communications director, and the five members of the board.

One notable feature of the campaign: at least six glossy direct-mail pieces that urged voters to approve the bond measure without mentioning how much money the district was asking for. That was a conscious decision, one member of the committee, Canada College interim President James Keller, told the Almanac.

That $564 million that did not appear in the mailings reflects their purpose as "campaign persuasion material," said Richard Holober, the 2011 board president.

A conflict?

Asked to comment on board member participation in the committee, Jim Ewert, an attorney for the California Newspaper Publishers Association, said a key question is whether members "discussed, heard, debated or took action" on how to spend bond money. If they did, the meeting would be subject to the Brown Act "by virtue of their participation as a (legislative) body," Mr. Ewert said.

Scattered through the direct-mail pieces were extractions, including word-for-word extractions, from the official ballot language, which the board approved. For example:

• "Upgrade classroom technology and computer labs to meet earthquake, fire and safety codes"

• "Upgrade classroom technology and computer labs"

• "Removing hazardous materials, including asbestos"

When asked for records of the committee meetings, Mr. Keller replied via email: "The committee is not a 'public' group and, other than the finance reporting requirements, maintains and publishes no records of its campaign activity. As a private nongovernmental group, it is not subject to the Brown Act, nor the public records act."

Asked to justify this conclusion, Mr. Holober twice cited a paragraph in a 1994 civil grand jury decision involving a Millbrae school district. When pressed for a copy of this report, Mr. Holober brought in Mr. Casey, who provided a report from 1997 that also noted that the jury had asked an opinion from the county counsel at the time, Mr. Casey.

In a recent telephone interview, Mr. Casey said the Measure H committee, called Citizens for Support of Community Colleges in San Mateo County, did not use government funds nor did it discuss official business. "I think it's pretty straightforward," he said.

"I can understand people saying 'Well, how can that be?'" he added. "When you're acting on a political matter, you're not acting as a legislative body. These are fine distinctions."

Does it bother him that not just a quorum but the entire board joined this committee? "No," he said, "Not at all."

Perception problems

It does bother Brad Senden, a San Ramon-based pollster and campaign consultant who has worked for the Las Lomitas and Menlo Park elementary school districts and the Sequoia Union High School District.

Campaign committees that include board members are problematic, Mr. Senden said in a telephone interview. "We go out of our way to make sure (board members) are never on an executive committee," he said. If members insist on getting involved, Mr. Senden said he recommends picking a focus, such as phone banking, and never attending meetings that include another member.

Mr. Senden said he also asks for the views of a district's lawyer. "Usually, I want them to bring whatever their lawyer says back to me," he said. "I want what the lawyer said. In some cases, I want the lawyer to call me."

"The temptation to talk about district stuff is too great. Don't do it," Mr. Senden said. "Perception problems are worse than legal problems because there's nowhere to go to adjudicate it and (have someone) say it's OK."

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