Superintendent search limited to insiders Schools & Kids, posted by Editor, The Almanac Online, on Mar 12, 2010 at 3:12 pm
The field of candidates for the next superintendent of the Sequoia Union High School District has significantly narrowed less than a month after Superintendent Patrick Gemma announced plans to retire at the end of June.
Read the full story here Web Link posted Wednesday, March 10, 2010, 12:00 AM
Posted by jim watson, a resident of the Menlo Park: Downtown neighborhood, on Mar 12, 2010 at 3:12 pm
Hats off to Chris Thomsen. The voice of reason in the Sequoia Union High School district. He is the only board member to stay true to his mission (the written mission of the SUHS) to represent all students in the district. He is not afraid to go againt the other members who care little about the students and more about pleasing the superintendent. He is the only member who seems to know that things must change and that it is possible to improve and make the education of all students better. Keep up the good work Chris Thomsen.
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 16, 2010 at 2:27 pm Peter Carpenter is a member (registered user) of Almanac Online
The saga continues:
Begin forwarded message:
Subject: Sequoia Union High School District Issue
Dear Mr. Peterson,
Thank you for your interest in ensuring that the provisions of the Brown Act are followed. I have had the opportunity to review your concerns, as well as the applicable law, and based on that review, I do not believe that the actions of the Board violated either the spirit or the letter of the law.
As we discussed in our telephone conversation last week, case law interpreting the Brown Act confirms that discussions relating to personnel decisions can be done in closed session. These cases interpret this exception rather broadly, finding that it extends to "all employer consideration of an employee, up to (but excluding) 'discipline' or 'dismissal' of the employee." Duvall v. Board of Trustees (2001) 93 Cal.App.4th 902, 909. The Duvall court found that "evaluation" encompasses "consideration of the criteria for such evaluation, consideration of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of [the board's] discretion in evaluating a particular employee." Ibid.
Opinions of the Attorney General further support the broad parameters of the personnel exception. "Opinions of the California Attorney General have consistently interpreted the personnel exception's use of the term 'employment' broadly.... [T]he Attorney General interpreted the term 'employment' to include 'all personnel matters relating to an individual employee at executive sessions and not simply matters relating to initial employment or final discharge,' thereby permitting a closed session to evaluate a school superintendent's performance." Travis v. Board of Trustees(2008) 161 Cal.App.4th 335, 344-5. The court in Travis concluded, based on this review, "a more flexible interpretation of 'employment' is permitted when it is consistent with the purposes of both the Brown Act and the personnel exception." Travis, supra., at p. 346
The principle that can be distilled from these authorities is that a Board can shield from public scrutiny matters that are inherently likely to risk "undue publicity and embarrassment" to persons under consideration for employment. Applying this principle to the Board's action, it appears that discussions relating to the performance, abilities and criteria for selection of candidates for superintendent fall squarely within the closed session exception. In other words, the Board could have simply selected a new superintendent based on a closed session review of candidates without violating the provisions of the Brown Act.
I have also had the opportunity to review the Agenda and Minutes of the February 17 and 24 meetings. From these sources, it is apparent that the Board was mindful of the preference for transparency, beyond what was technically required by the Brown Act. On February 17, there was a discussion of the utility of doing an in-house search before looking outside, as well as a discussion about obtaining public input via the internet. The Agenda for the February 24 meeting appropriately listed the closed session relating to appointment of the superintendent and allowed for public comment as the agenda item immediately preceding retiring into closed session. As the letter of Mr. Beiers makes clear, the February 24 reporting out was not a final personnel action and was therefore not necessary under the law. This too appears to be consistent with a desire to keep the public involved in the process.
In sum, while I appreciate the vigilance that you have brought to this process, it appears that the actions taken by the Board are consistent with the requirements of the Brown Act, in that consideration of the qualities of potential candidates and the process for making the selection are appropriately conducted in closed session. If you would like discuss this further, you may contact me directly at (650) 363-4823.
Albert A. Serrato
Deputy District Attorney
my email to the District Attorney:
The personnel exemption only applies to agendized discussion regarding specific individuals. As Mr. Serrato very correctly notes " this exception rather broadly, finding that it extends to "all employer consideration of an employee, up to (but excluding) 'discipline' or 'dismissal' of the employee." Mr. Serrato further cites ""Opinions of the California Attorney General have consistently interpreted the personnel exception's use of the term 'employment' broadly.... [T]he Attorney General interpreted the term 'employment' to include 'all personnel matters relating to an individual employee at executive sessions." These very citations by Mr. Serrato clearly contradict his conclusion.
The School Board's minutes clearly show that they took an action with regard to filling a position - without the mention of even a single individual employee.
I urge you to reverse Mr. Serrato's incorrect interpretation of the Brown Act with regard to the School Board's closed session action.
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 17, 2010 at 3:39 am
The saga continues as the government officials circle their wagons:
On Mar 16, 2010, at 6:43 PM, "James Fox" <firstname.lastname@example.org> wrote:
I have read Mr. Serrato's memo to you and I am in agreement with it. There is no mandated process for selection of a Superintendent set forth, so the Board of Trustees can choose to evaluate current employees without initiating a broader search. In fact, if the Board chose, they could evaluate and interview current employees and then make a selection. There is no requirement that an agenda list who they are considering, unlike acquisition of real estate.
If you are not satisfied with the decision to evaluate current employees, you have a right to address the Board in a public meeting to urge them to adopt an alternative process, but they are not obligated to do so.
From: Peter Carpenter <email@example.com>
Date: March 16, 2010 8:36:35 PM EDT
To: James Fox <firstname.lastname@example.org>
Cc: tom gibboney <tgibboney@AlmanacNews.com>, Dave Boyce <dboyce@AlmanacNews.com>
Subject: Re: Sequoia Union High School District Issue
I will seek the wisdom of the courts since you are unwilling to interpret the law in the interest of the citizens and instead have chosen to protect secrecy by elected officials.
Posted by James, a resident of the Menlo Park: Menlo Oaks neighborhood, on Mar 17, 2010 at 9:26 am
This case may ultimately have to be settled in the courts. However, in a time when government should be heeding the need to be more open than secretive, it would seem prudent that the School Board act accordingly. Perception plays a big role in an elected official’s life. Even if it’s decided that the Board didn’t technically violate the Brown Act, they are now viewed as hiding something. Maybe the School Board needs to review their Brown Act responsibilities. This is the kind of act which damages the public’s trust in their elected representatives.
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 17, 2010 at 11:01 am Peter Carpenter is a member (registered user) of Almanac Online
The saga continues - my email this date:
Dear President Martinez and Fellow School Board Members,
Be advised that the decision of the Board as to the scope of the search for a new superintendent, having been made in closed session, is in violation of the Brown Act and California Code 54957.1.
This action was confirmed by your President and by your own lawyer, John Beiers: "On February 24, the Board met in closed session under Public Employee Appointment: Superintendent. At the conclusion of that session, the Board announced a decision, on a 4-1 vote, to essentially confirm the original public direction to continue the selection process in house before contemplating an outside search." Mr. Beiers further states that "One should surmise from the vote taken by the Board that the Board discussed the strengths and weaknesses of internal candidates and arrived at a conclusion that it needed not to conduct an external search."
If that was indeed what transpired, then the Board had the obligation to report the closed session conclusion 'that it needed not to conduct an external search' in public session and then to vote on the motion to do a closed search in such a public session. While any purported discussions regarding specific individuals would fall under the personnel exception the subsequent motion, made without any reference to said individuals, to conduct a closed search is not a permitted exception to the requirement that the public's business be conducted in public and with the public being given the opportunity to comment.
The personnel exemption in the Brown Act applies ONLY to actions regarding a SPECIFIC individual and not to decisions regarding general personnel policies. Thus your closed session action is a violation of your public trust and an insult to the citizens of the district. The citizens elected you to do our business; we did not elect you to do that public business in secret.
Since this decision has not been rescinded and then agendized for a public meeting, I will file suit against the School District and each Trustee. The Court will also be asked to 1) issue a temporary restraining order prohibiting the School District from taking any action pursuant to this illegal motion, including any action to search for or select a new superintendent, until this matter can be fully adjudicated or has otherwise been resolved, 2) void the closed door action to pursue a closed search and 3) pay all of my legal expenses incurred until such time as this matter is resolved. (REMEDIES AND SANCTIONS - Individuals may file civil lawsuits for injunctive, mandatory or declaratory relief, or to void action taken in violation of the Act. 54960; 54960 Attorneys’ fees are available to prevailing plaintiffs.)
To assist you in deciding to reverse course and to address this issue in open session prior to my filing a civil suit, let me quote from the recent correspondence from the San Mateo District Attorney which clearly confirms, contrary to the DA's interpretation but consistent with the later cited California Attorney General's opinion, that the personnel exception allowing closed session action applies ONLY to personnel actions which relate to a SPECIFIC individual:
"These cases interpret this exception rather broadly, finding that it extends to "all employer consideration of an employee, up to (but excluding) 'discipline' or 'dismissal' of the employee." Duvall v. Board of Trustees (2001) 93 Cal.App.4th 902, 909. The Duvall court found that "evaluation" encompasses "consideration of the criteria for such evaluation, consideration of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of [the board's] discretion in evaluating a particular employee." Ibid.
Opinions of the Attorney General further support the broad parameters of the personnel exception. "Opinions of the California Attorney General have consistently interpreted the personnel exception's use of the term 'employment' broadly.... [T]he Attorney General interpreted the term 'employment' to include 'all personnel matters relating to an individual employee at executive sessions and not simply matters relating to initial employment or final discharge,' thereby permitting a closed session to evaluate a school superintendent's performance." Travis v. Board of Trustees(2008) 161 Cal.App.4th 335, 344-5."
And here is guidance from the California Attorney General:
"The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.
The purpose of this exception – commonly referred to as the “personnel exception” – is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies."
Frankly, I am at loss as to why the decision to do a closed search was done in closed session - what was there to hide, which individuals were you ostensibly attempting to protect? Was this simply a procedural error or was it done intentionally to hide something from the public? Note that if it were an intentional act to "deprive the public of information which the member knew or had reason to know the public was entitled to receive" then that would be cause for criminal action. Will not a closed search be inherently discriminatory if the internal applicant pool is not representative of the community that you serve?
Should the School District wish to avoid the expense and the extensive discovery and time consuming depositions which may be required in conjunction with a civil suit, you have the very simple option of rescinding your closed session motion decision and then properly agendized this matter for a public meeting.
Your attorney states:" I can tell you based on personal experience with this Board, that Brown Act compliance is important to them".
I challenge you to meet that standard.
My motivation in this matter derives from the beautifully worded Preamble to the Brown Act:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards,
and councils and the other public agencies in this State exist to aid in the conduct of the people’s
business. It is the intent of the law that their actions be taken openly and that their deliberations
be conducted openly.”
“The people of this State do not yield their sovereignty to the agencies which serve them. The
people, in delegating authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people insist on remaining
informed so that they may retain control over the instruments they have created.”
The people reconfirmed that intent fifty years later at the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“The people have the right of access to information concerning the conduct of the people’s
business, and, therefore, the meetings of public bodies and the writings of public officials and
agencies shall be open to public scrutiny.”
While I may not prevail on this matter, I can assure you that to continue down this road will be very expensive and time consuming for the School District and will result in a significant amount of negative publicity - is it worth it, what are you hiding?
Please do the simple thing and rescind this closed session motion.
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 17, 2010 at 11:15 am Peter Carpenter is a member (registered user) of Almanac Online
an interesting footnote - the above email was rejected by the recipients server as I have been blacklisted by the school district's email server. A very interesting response given their stated interest in citizen input.
I suggest that those of you who are so motivated might send them the above message with whatever comments you wish.
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 17, 2010 at 11:34 am Peter Carpenter is a member (registered user) of Almanac Online
Dear School Board members,
The below email was sent to you from my normal gmail address and was uniformly rejected with the comment - The error that the other server returned was: 554 554 5.7.1 Blacklisted by dbl.spamhaus.org. The same email has been sent to you from another of my email addresses and was accepted.
Clearly you have decided that you do NOT want citizen input. I am amazed at your arrogance.
I also think you may end up getting copies from other citizens who share my outrage at your behavior.
Posted by POGO, a resident of the Woodside: other neighborhood, on Mar 17, 2010 at 12:21 pm
Regardless of whether you feel the SUHSD board of trustees is doing a good job or not, voters must certainly be concerned that the board lacks transparency. There is no reason they needed to hold a general discussion about the boundaries of a job search behind closed doors.
Our community deserves better and I call upon the trustees to override their attorney's opinion when these recommendations are made. We elected you, not your attorney. The attorney works for you. Elected officials should ALWAYS error on the side of sunshine.
Voters should remember this little episode when Trustees Gibson, Martinez and Rumley stand for re-election in November 2011. We pay the bills and we deserve transparency from our TRUSTees.
Posted by C'mon Peter, a resident of the Menlo Park: Park Forest neighborhood, on Mar 17, 2010 at 1:00 pm
C'mon Peter, give it a rest. Is this THAT big of an issue?? There are so many other much larger problems and concerns right now with school budgets, city budgets etc. What is costing us taxpayers more, the decision to keep the selection process in-house, or the ridiculous benefits, pensions and salaries that you helped approve during your tenure on the Fire District Board? Seriously.
Posted by WhoRUpeoplle, a resident of another community, on Mar 17, 2010 at 2:21 pm
Right on, POGO! And my sincere compliments and gratitude to Peter. Anyone reading this string of posts, I encourage you to email the Trustees as Peter suggested - I have. The real issue here is a school board that feels no obligation to the public it serves. This has been a long standing issue under Gemma, and it will be perpetuated unless something changes. Unfortunately, none of the trustee positions come up for election until 11/11. Too long to wait. To C'mon Peter, and others that are only thinking of this in terms of the specific issue of the replacement search, it is a big deal! This school district NEVER asks for public input on any issue if it doesn't HAVE TO. That is B.S.
Posted by POGO, a resident of the Woodside: other neighborhood, on Mar 17, 2010 at 7:50 pm
C'mon Peter makes a reasonable point and I could actually overlook this issue if it weren't for the fact that the SUHSD has done this MANY times before.
When asked about specific budgets, cost overruns at performing arts centers, student statistics like drop out rates and test scores, the district consistently refuses to disclose details.
This is what happens when there is a culture that "they" know better than the public... the trustees resort to their old ways even when the issues are relatively inconsequential. They like their secrets.
I will write to the trustees expressing my disgust for their lack of transparency. But I plan to show my full contempt by supporting their opponents in the fall 2011 elections.
Posted by another view, a resident of the Menlo Park: Downtown neighborhood, on Mar 17, 2010 at 8:18 pm
Actually, I don't really care about whether the board made the decision to limit their search in closed session. What I care about is the outcome, and I think it severely damages the credibility of the new Superintendent if they have not been selected through a full search. Going through a full search would ensure that the district is selecting a person with full knowledge that he/she is their best option. And it is also best for the person selected so that he/she doesn't always have a question mark hanging over their head. The internal candidate that is being fast-tracked into this job is being set up to fail if they are selected in a process where people will always question whether he was really the best person for the job.
Posted by WhoRUpeople, a resident of another community, on Mar 18, 2010 at 8:35 am
Another View--you make an excellent point, BUT, this Board (with the exception of Thomsen) has consistently demonstrated that THEY DON'T CARE. Now, given the latest announcement about the appointment of the new superintendent last evening, its obvious to me that he doesn't care either. I have to give credit where it is due, Gemma did a masterful job of creating an empire that can be sustained--who wants to bet that his influence will end on June 30th?
Posted by outraged, a resident of the Menlo Park: Central Menlo Park neighborhood, on Mar 18, 2010 at 8:41 am
Another View, I believe we should care about the outcome AND the process, because if public agencies flout the law that is meant to ensure transparency and public participation, what kind of trust can we have in them? And I firmly believe, based on much familiarity with the Brown Act, that the district and our elected officials did indeed violate the law when it made its decision to limit the search in closed session.
Posted by SUHSD parent, a resident of the Menlo Park: Central Menlo Park neighborhood, on Mar 18, 2010 at 9:12 am
Oh, ok, so the board didn't violate the Brown Act because they were discussing a specific employee -- in this case, whether the heir apparent should be anointed to the throne. But don't we members of the public have any input as to whether there should be a search or not?
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 18, 2010 at 9:47 am
I hope now everyone understands why challenging the first closed session motion's legality was and is so important. This Board is operating totally behind closed doors on a matter that has profound implications for the community and there has been NO public input on this decision.
I urge everyone to speak out on this issue and demand that this appointment be withdrawn until there is the opportunity for public input.
Posted by to Mr. Carpenter, a resident of the Menlo Park: other neighborhood, on Mar 18, 2010 at 2:02 pm
Instead of continually critiquing and crippling the decisions of school districts, please, please oh please find a volunteer effort where you can put your energies, skill and time into. Maybe one where you might make a welcomed difference? Sitting behind a keyboard 24/7 and playing unsolicited advocate for "others" who are not asking of your opinion is so hard for the public to watch. It's especially concerning when you are now wasting the time and money of our schools which need all time focused and money carefully managed. Find a cause to support that is looking for your time and support. Or find a life. please. That alone would be a community service.
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 18, 2010 at 2:22 pm
Posted by to Mr. Carpenter:"Find a cause to support that is looking for your time and support. Or find a life. please. That alone would be a community service."
Obviously you do not know that I served 8 1/2 years as an elected Director of your Fire District, that I am currently the President of the Atherton Civic Interest League and that I have spent more than 20 years in various forms of public service.
Posted by WhoRUpeople, a resident of another community, on Mar 18, 2010 at 2:58 pm
Peter, please don't go there! You didn't ask for it, your certainly do not need it, and you may not even welcome it, but your going to get it--my defense of your efforts on this issue or any other. Peter Carpenter, while I disagree with him on issues from time to time and have debated such issues in this forum, does not deserve anything but praise for his interest in issues of importance to the community/county/district. He has put his name, reputation, time and money into supporting those things he believes are important. Please, if you are a reasonable and interested person, disagree with Peter on this or any other issue that comes along, but please don't waste his time or ours, who have to read your crap, trying to cloud issues with personal attacks. Peter, on a personal note, I only wish I was in a position to share your passion (and I still disagree with you about fire sprinkler regulations).
Posted by David Boyce, Almanac staff writer, on Mar 18, 2010 at 5:19 pm David Boyce is a member (registered user) of Almanac Online
The governing board of the Sequoia Union High School District did seek community opinion as it worked through the process of seeking candidates to replace the outgoing Patrick Gemma.
The district posted a questionnaire on the web site on Monday, Feb. 22, and kept it up until Friday, March. 5. (Note that the board decided in closed session on Feb. 24 to limit the search to district employees only.)
The questionnaire results are available in paper format from the district office. They will not be available online from the district, as spokeswoman Bettylu Smith explained in response to my e-mail asking if they would be posted anywhere.
"As mentioned in my cover letter to you last week, the questionnaire was developed expressly for the trustees as part of their search for a new superintendent (as one means of informing that decision). Trustees are grateful to those who took the time to complete the questionnaire, and the responses and comments are being considered by the trustees as the search process progresses. The reports will be made available upon request."
The questionnaire is from 2003 and used during the recruitment of Mr. Gemma.
I am making arrangements to get the results ready for online posting in connection with a story that will go up at The Almanac's web site shortly.
Here is an excerpt from my story:
The bulk of the survey was 13 multiple-choice criteria. Respondents were asked to rate a candidate's view of priorities as either very important, somewhat important, or not too important.
The results showed 12 of the 13 items as "very important," including:
â– "Sustain and improve the performance of ALL students while closing the gap between higher and poorer achieving students." Very-important rating: 83 percent.
â– "Value and capitalize upon diversity in the schools and community as s/he addresses the unique needs of an ethnically, culturally and socio-economically diverse student body." Very-important rating: 53 percent.
â– "Address the multi-faceted issues associated with charter schools in an objective manner." Very-important rating: 68 percent.
Some respondents found this tedious, with one person writing: "All the questions are leading -- 'How important is it for the (superintendent) to do a good job on everything within their job description?'"
Said another: "I don't get it. How will this line of questioning be useful?"
That line of questioning is balanced by items asking for open-ended responses, Sequoia board President Olivia Martinez said in an interview. One part is quantitative and the other qualitative and, lacking a better method, the board uses the results as it may, she said.
The multiple choice items "reaffirm that there a consensus in the community as to the importance of what these things are," she said. "In a democracy, nothing is perfect."
Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Mar 18, 2010 at 5:34 pm
David Boyce reports:"The district posted a questionnaire on the web site on Monday, Feb. 22, and kept it up until Friday, March. 5. (Note that the board decided in closed session on Feb. 24 to limit the search to district employees only.)"
Unfortunately,this process involved no outreach to the community encouraging participation, no online posting of the results, and no discussion of the option of inside vs outside candidates.
More important, it is very clear that the Board had already selected the new superintendent long before the closing date of this so called survey.
The survey was a cover story, a diversion and a sham.
The Brown Act does NOT recognize surveys as an acceptable means of allowing the public to be heard on a pending public decision. There is only ONE legally acceptable method - put the decision on a posted agenda and permit public comment in open session. The School Board made both the decision to restrict the search to inside candidates (illegally in a Closed Session) and the choice of a new superintendent (permitted in a Closed Session but by no means required)in Closed Sessions.
Here is what the Attorney General's Office says about public comment on Closed Session items:
- Every agenda for a regular meeting shall provide an opportunity for members of the public to DIRECTLY ADDRESS the legislative body on any item under the subject matter jurisdiction of the body.
- With respect to any item which is already on the agenda, or
in connection with any item which the body will consider pursuant to the exceptions contained in section 54954.2(b) )i.e. in Closed Session), the public MUST be given the opportunity to comment before or during the legislative body’s consideration of the item. (§ 54954.3(a).)
Posted by Concerned Parent, a resident of the Menlo Park: The Willows neighborhood, on Mar 18, 2010 at 5:38 pm
Personally whether the letter of the law was broken or not, it's pretty clear the spirit of the law was. The goal is transparency and accountabililty and it is an unfortunate reflection of the state of government that it requires a law to try to get our elected officials to do the right thing. To continually improve our society requires an informed an engaged electorate. I can think of few topics more important than education and yet here we have a Board that appears to want to rule rather than govern. We deserve better. Peter, I have no idea about whether your legal position has any merit or not, but I appreciate that youare willing to spend your time on this issue as SUHSD BoT needs to know they can't continue business as usual. These are the same people who are going to come back and say they need more money and to trust them. Trust is earned and they have not earned mine.
Posted by Concerned Parent, a resident of the Menlo Park: The Willows neighborhood, on Mar 18, 2010 at 6:02 pm
I just saw the postings relating to the "survey". Things really don't add up. It looks as if the survey was almost an afterthought. How could it really be of use if a major decision was made two days into the survey? Aside from what sound like poor questions, the sampling would have to be suspect, hence the conclusions are perhaps even less valid than those from a Fox News poll. At least those are described up front as non-scientific.
The other thing that gets me about the wording is the presumtive language: "closing the gap between higher and poorer achieving students". Presumably lowering the scores of high achieving students would lower the gap, but that's not really what we want is it? How about all of us being in favor of improving the achievement of lower achieving students and improving the acievment of all students?