District Attorney fails to enforce the law
Original post made by peter carpenter, Atherton: Lindenwood, on Jun 14, 2011
I am amazed that the District Attorney delegates so much of its legal analysis to the County Counsel - why do the taxpayers need both offices?
You and the County Counsel maintain that a secret ballot (as the Board President stated was used) is neither a vote nor an action and hence is not a prohibited action under Section 54953c which states (c) No legislative body shall take action by secret ballot, whether preliminary or final.
You also claim that the agenda need not provide for the explicit opportunity for public comment in spite of the fact that the law clearly states that at every special meeting, the legislative body shall provide the public with an opportunity to
address the body on any item described in the notice before or during consideration of that item. (§ 54954.3(a).) and that the special meeting notice shall describe the public's rights to so comment. (§ 54954.3(a).)
In my opinion you are bending over backwards to defeat the purpose of the Brown Act rather than simply enforcing the law as written.
I hope that the public will note and long remember your failure to act in the PUBLIC'S INTEREST.
On Jun 10, 2011, at 6:02 PM, Al Serrato wrote:
Dear Mr. Carpenter,
I have had the opportunity to review the allegations you raised about possible Brown Act violations in connection with the May 10, 2011 regular meeting of the Menlo Park City School District Board of Education. I have also reviewed the letter of Deputy County Counsel Timothy Fox regarding those allegations, a copy of which was provided to you.
Your complaint regarding the meeting was twofold: 1) that the Board made use of a secret ballot to select a superintendent; and 2) that the Board failed to provide the public with an opportunity to comment prior to the selection. You asked that the Board cure and correct these alleged violations.
Having obtained Board approval, Mr. Fox was able to provide more information than was initially available to the public. Having reviewed the information he disclosed, it is apparent to me that a secret ballot, as that term is used in the Brown Act, was not utilized. Because the topic under consideration was the appointment of a superintendent, it was an appropriate matter for closed session consideration. While the comment made by the Board president may have created this impression, in fact no balloting, secret or otherwise, was being utilized. Instead, what occurred in closed session was a prioritization of candidates for consideration. Moreover, there was no "action taken" within the meaning of the Brown Act; all that occurred was a discussion and ranking, and a decision to conduct more investigation of the top three candidates.
As to the concern that the public was not allowed to comment prior to the decision to appoint Mr. Ghysels as Superintendent, I can find no requirement in the Brown Act that individualized notice must be accomplished before discussion of possible appointments is conducted. Instead, the Brown Act requires an opportunity for public input prior to ratification of an employment contract. As indicated earlier, discussion of personnel matters is properly done in closed session. The procedure utilized here complied with the requirements of the Act, as the public was afforded an opportunity to comment before the decision to employ Mr. Ghysels was ratified. Moreover, as Mr. Fox indicated in his letter, even assuming that there was a problem with the manner in which notice was given, the Legislature has not given us authority to seek judicial relief in these circumstances, as section 54954.3 is not among the sections that allows for judicial review.
For the reasons indicated, I concur with Mr. Fox's determination, on behalf of the Board, that no "cure and correct" is required pursuant to the provisions of section 54960.1(c)(2) as no violation of the Brown Act occurred.
Thank you again for your interest in ensuring that the actions of local government remain transparent.
Albert A. Serrato
Assistant District Attorney
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