News


Superintendent search limited to insiders

Peter Carpenter, open-government attorney say board acted illegally.

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.

The district governing board, in a Feb. 24 closed session, voted 4-1 to "limit the search for a superintendent to internal candidates," board President Olivia Martinez told The Almanac.

The board's action, said Atherton resident Peter Carpenter in a March 5 post at The Almanac's online forum, is in violation of the state's open-meeting law, the Brown Act. Mr. Carpenter, who is not a lawyer, is threatening a lawsuit if the board does not rescind its decision.

The law, Mr. Carpenter said, allows closed-session discussions about particular individuals, but not process-oriented matters.

"If the School District truly wants to err on the side of more public access then they should reverse this closed-session decision immediately," Mr. Carpenter said. "If they do not, they are 1) wrong, 2) insulting the public whom they serve and 3) going to be sued."

In an interview, Mr. Carpenter said he has asked the San Mateo County District Attorney to look into the matter, and that he, Peter Carpenter, plans to initiate a lawsuit if the board does not reverse its decision.

"They are neither complying with the spirit nor the letter of the law," he said. If he wins, he added, any decisions that flow from the closed session in question would be nullified.

Asked about the board's decision, Jim Ewert, an attorney with the California Newspaper Publishers Association, said that the most recent court case on the books permits such conversations in closed session, but that a recent change in the law makes that case vulnerable.

The Court of Appeals in the 2001 case Duval v. Board of Trustees of the Coalinga-Huron Unified School District, ruled that closed sessions can include discussion of criteria for conducting a candidate search, Mr. Ewert said.

Not so, said Terry Francke, general counsel for the nonprofit open-government advocacy group California Aware.

In an e-mail, Mr. Francke said that Duval "concerned an incumbent superintendent and the board's process of setting new performance goals for him. The case was not about a search, and I agree (with Mr. Carpenter) that a discussion of whether or how to conduct a search is not a matter for closed session."

Mr. Carpenter posted an e-mail exchange between him and John Beiers, the Sequoia district's attorney and the chief deputy in the County Counsel's Office. Mr. Beiers called Mr. Carpenter's analysis "flawed," and added that if he was requesting that the board's Feb. 24 closed-session decision be rescinded, his request was denied.

Thomsen dissents

Sequoia board member Chris Thomsen voted against the search limits. Given the importance of the post, "I think it's good for a district to do a national search in every case," he told The Almanac.

As a new board member, he said he would also benefit from a larger candidate pool.

Asked if the leading candidate is Assistant Superintendent James Lianides, Mr. Gemma's apparent right-hand man, Ms. Martinez replied: "We've got a lot of talented people in the district, and he's one of them."

District spokeswoman Bettylu Smith said in a Feb. 22 statement -- two days before the board decided to limit the search -- that the board had agreed at an earlier meeting to "start initially with consideration of internal candidates."

Three of the last four superintendents have come from outside the district, former board member Sally Stewart said.

Comments

Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 5, 2010 at 12:16 pm

"The governing board, in a Feb. 24 closed session, voted 4-1 to "limit the search for a superintendent to internal candidates," board President Olivia Martinez told The Almanac."

This is a blatant violation of the Brown Act.

The decision as to the scope of a search for a superintendent is NOT one of the very few items allowed to be decided in closed session by the Brown Act.

"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.”17 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."


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 5, 2010 at 12:21 pm

The Board needs to put this matter on an open session agenda and receive public comment before it decides how proceeds with this search.

Any search pursued under this closed session decision can and will be challenged in court and the entire process will probably be nullified.


Like this comment
Posted by David Boyce
Almanac staff writer
on Mar 5, 2010 at 1:48 pm

David Boyce is a registered user.

Mr. Carpenter's point about the Brown Act disallowing closed-session discussion of criteria for a candidate search has the moral support of the California Newspaper Publishers Association, but the most recent court case on the books permits such conversations in closed session, an attorney told The Almanac. But a recent change in the law makes that court case vulnerable, he added.

In the 2001 case Duval v. Board of Trustees of the Coalinga-Huron Unified School District, CNPA attorney Jim Ewert said in an interview, the Court of Appeals decided that closed sessions can include discussion of criteria for conducting a candidate search.

In the case, Judge Stephen J. Kane concluded that "evaluation of performance" of an employee "may properly include 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 defendant's discretion in evaluating a particular employee."

The Coalinga decision "significantly expanded the scope" of what is permissible to discuss in closed session, Mr. Ewert said.

The Coalinga decision would have been disallowed under 2004 state Proposition 59, which amended the state constitution such that a statute or court rule "shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."

This amendment makes the Coalinga case vulnerable, if it is ever challenged, Mr. Ewert said.

Changes to the law concerning public access, then, should err on the side of more access, Mr. Ewert said, adding: "We want to put our thumb on the scale of justice, so to speak."

"I wholeheartedly agree" with Mr. Carpenter's interpretation of the Brown Act, Mr. Ewert said. "But we can't ignore the court's decision. We don't agree with it but we can't ignore it."


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 5, 2010 at 2:06 pm

"I wholeheartedly agree" with Mr. Carpenter's interpretation of the Brown Act, Mr. Ewert said. "But we can't ignore the court's decision. We don't agree with it but we can't ignore it."

Please do not ignore the judge's opinion - READ IT.

"In the case, Judge Stephen J. Kane concluded that "evaluation of performance" of an employee "may properly include 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 defendant's discretion in evaluating a particular employee."

This proves the point - the judge said that this applied specifically ONLY with regard to a "particular employee", NOT with regard to a position.


The Brown Act prohibits general personnel policies, like search criteria or a search process from being conducted in closed session.
63 Ops.Cal.Atty.Gen. 215 (1980)


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 5, 2010 at 2:42 pm

as noted above:" 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."

This action regards a vacant position so, by definition, it cannot be referring to an individual.

And case law, such as cited, cannot overrule the State law (and in this case the case law actually supports my interpretation of the Brown Act) until that case law has been upheld by a higher court; until then case law is instructive, not determinative.

Also, the Brown Act exemptions, however construed, for closed sessions are permissive not mandatory. If the School District truly wants to err on the side of more public access then they should reverse this closed session decision immediately. If they do not they are 1) wrong, 2) insulting the public whom they serve and 3)going to be sued.


Like this comment
Posted by Observer
a resident of Woodside High School
on Mar 5, 2010 at 11:41 pm

Peter is correct. Kudos to David Boyce for research the Brown Act in more depth.

Apart from the Brown Act ramifications, the decision itself is flawed. Why (on earth) limit the candidate search?

in looking at the Brown Act question,
The actual case is here Web Link While I am not a lawyer, the Duval case draws a clear line around making the evaluation of a particular employee. "Further, we conclude "evaluation" may properly include 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 defendant's discretion in evaluating a particular employee." Read that last phrase again ...
"to the extent those matters constitute an exercise of defendant's discretion in evaluating a particular employee"

who is the particular employee being evaluated?


Like this comment
Posted by disgusted
a resident of Menlo Park: Central Menlo Park
on Mar 6, 2010 at 10:28 am

One more example of the arrogance and lack of accountability of this school board and district superintendent, who should know the Brown Act and the spirit of the law well enough to have put this discussion on the agenda for a public meeting.

I agree with Observer that the court decision was flawed, if it allowed such a discussion in closed session. But the law was changed several years ago, after that court decision. And if Mr. Ewert's interpretation is accurate, these types of discussions in closed session couldn't be defended in court now.

I hope Peter Carpenter's threat of a lawsuit, if the district doesn't backtrack and agendize this issue for an open meeting, isn't an idle one.


Like this comment
Posted by disgusted
a resident of Menlo Park: Central Menlo Park
on Mar 6, 2010 at 10:37 am

Re-reading Observer's comments, I realize he or she was saying the district board's decision to limit the candidate search to in-house candidates, rather than the court decision, was flawed. I completely agree with that, too. This is a hide-bound school district that can use a healthy dose of new blood in its administration to tackle some of its problems. (There are exceptions. For example, Woodside high's principal, whose name I can't remember, seems strong on innovation.)

Regarding the Brown Act matter, I do believe the court decision, as interpreted by Mr. Ewert, was flawed. But the changes made to the law in 2004, should have made that decision irrelevant. What's needed now is a court case, and Sequoia may provide that if it doesn't reverse itself.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 6, 2010 at 11:31 am

I have sent the following email to all of the school board trustees:

From: Peter Carpenter <peterfcarpenter@gmail.com>
Date: March 5, 2010 5:09:09 PM PST
To: omartinez@seq.org, dgibson@seq.org, lrumley@seq.org, asarver@seq.org, cthomsen@seq.org
Subject: Brown Act violation

Dear President Martinez,

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. The personnel exemption in the Brown Act applies ONLY to actions regarding a SPECIFIC individual and not to decisions regarding general personnel policies. Thus action is a violation of your public trust and an insult to the citizens of the district.

If this decision is not rescinded and then agendized for a public meeting, then the school district and each Trustee will be sued. The Court will also be asked to nullify any search or hiring decision conducted under the closed session approved policy and will be asked to award attorney's fees.


Peter F. Carpenter


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 6, 2010 at 11:32 am

Here are the email addresses of the trustees if any of you wish to add to my message:

omartinez@seq.org, dgibson@seq.org, lrumley@seq.org, asarver@seq.org, cthomsen@seq.org


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 6, 2010 at 11:41 am

disguusted states:"Regarding the Brown Act matter, I do believe the court decision, as interpreted by Mr. Ewert, was flawed."

Actually the cited court decision makes it very clear that the Brown Act exemption applies ONLY to personnel matters involving a SPECIFIC INDIVIDUAL.

It is Mr Ewert's reliance on that case to support the board's ability to act on the scope of the search in closed session which is flawed.

Here are the remedies provided to challenge and correct the board's disregard of the Brown Act:

REMEDIES AND SANCTIONS
CIVIL REMEDIES:
Individuals or the district attorney may file civil lawsuits for
injunctive, mandatory or declaratory relief, or to void action
taken in violation of the Act.
54960;
54960.1
Ch. VII
Attorneys’ fees are available to prevailing plaintiffs. 54960.5
CRIMINAL SANCTIONS:
The district attorney may seek misdemeanor penalties against
a member of a body who attends a meeting where action is
taken in violation of the Act, and where the member intended
to deprive the public of information which the member knew
or has reason to know the public was entitled to receive.
54959 Ch. VII


Like this comment
Posted by j
a resident of Menlo Park: Sharon Heights
on Mar 6, 2010 at 2:43 pm

Who was the one board member who voted against the majority?


Like this comment
Posted by disgusted
a resident of Menlo Park: Central Menlo Park
on Mar 6, 2010 at 3:15 pm

j, according to Dave Boyce's article, new board member Chris Thomsen voted against it.


Like this comment
Posted by POGO
a resident of Woodside: other
on Mar 6, 2010 at 3:40 pm

Peter -

I am with you on this one and I congratulate you for not letting this violation pass. As anyone who has ever read my posts, I am totally fed up with the arrogance of our elected officials (from all political parties by the way) and the continued deaf-ear of this school board is the latest example.

Yes, the SUHSD's closed session does appear to be a violation of the Brown Act but I'm not going to get into a debate with the school board's attorney on whether or not the precedent case applies or not. He made his determination and I'd bet my last dollar that he'll be too stubborn to reverse his position for fear of losing face with his client.

But his clients - the Board - needs to understand that they are the boss, not him. When your correspondence comes to them, they can easily say "we hear you, counsel, and thank you for your advice but we're going to rescind our previous actions and place this item on a future agenda." This isn't controversial and it's an easy solution - provided they can grow brains and backbones.

Trustees: Why didn't you question (and even overrule) your attorney and demand to discuss this search in a public session and take public comment? You can do that. In fact, why wouldn't you? Your attorney works for YOU. What's going on here, board members! Its not a coincidence that your title of Trustee contains the word "trust."


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 6, 2010 at 4:33 pm

I have sent the following email to the District Attorney - I would encourage others to add your voice - his email address is shown below


From: Peter Carpenter <peterfcarpenter@gmail.com>
Date: March 6, 2010 12:22:04 PM PST
To: jfox@co.sanmateo.ca.us
Cc: omartinez@seq.org, dgibson@seq.org, lrumley@seq.org, asarver@seq.org, cthomsen@seq.org, tom gibboney <tgibboney@almanacnews.com>
Subject: Brown Act violation

Dear Sir,

The Sequoia Union High School District governing board, in a Feb. 24 closed session, voted 4-1 to "limit the search for a superintendent to internal candidates."

This action is a blatant violation of the Brown Act which limits the 'personnel exemption"' for closed door sessions to actions involving a specific individual and prohibits the discussion of general personnel policies in closed session.

In accordance with California Code Act.54960, you are hereby requested to take action against the Trustees of the school board.


Respectfully,


Peter F. Carpenter


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 6, 2010 at 5:36 pm

Here is the prompt Saturday response which I received - interesting in that the District Attorney's Office also serves as Counsel for the School Board (conflict of interest?) - and my response.

On Mar 6, 2010, at 5:04 PM, John Beiers wrote:

Mr. Carpenter:

I have been asked by the Board President Olivia Martinez to respond to your e-mail of March 5 to the Board of Trustees alleging that the "decision of the Board as to the scope of the search for a new superintendent" violated the Brown Act. Your allegation does not provide any further detail or information to support such a statement. Without any further information or evidence supporting this conclusory statement, it is not possible for the Board to provide a specific response.

Your e-mail simply states that "the personnel exemption to the Brown Act applies ONLY to actions regarding a SPECIFIC individual and not to decisions regarding general personnel policies." The Board agrees with this statement. If you are implying that the Board took action on "general personnel policies" in closed session, I would ask that you provide evidence supporting such an irresponsible and reckless statement. I can tell you categorically that at no time has the Board approved "personnel policies" in closed session in relation to the Superintendent search.

On February 17, the Board, in an open and public meeting, indicated its intent to first look in house at existing staff members to determine if there were a suitable candidate for superintendent, before it engaged in a lengthy and expensive external search process. This is a decision that many public and private organizations make before engaging in an extensive external recruitment. At this same public session the Board also indicated a strong desire to receive public/community input on the process. To that end, the Board directed staff to create a community survey to be posted on the District website to help gauge public sentiment.

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. The Board was not legally required to report out such a vote, since it was not a "final personnel action" per se, but chose to do so nevertheless, in order to inform the public that they were continuing to interview internally. Reporting this action publicly was done in furtherance of its goal of transparency in the process. Judging from your e-mail of earlier today to District Attorney James Fox, I gather that it is your position that it violates the Brown Act for the Board to have discussed in closed session their decision to limit the search to internal candidates. This position has no legal merit. Government Code section 54957 and the case law interpreting this section, permit a public agency to discuss the merits of hiring particular individuals in closed session. The purpose of that section is to allow a public agency to interview and discuss candidates. In fact, a public agency would run the risk of violating the privacy rights of employees if it were to have a candid conversation of the relative merits of particular agency employees in open session. 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.

Your letter is also flawed in that it does not identify which decision you believe should be "rescinded." If you are referring to the February 24 vote out of closed session identified in your separate e-mail to Mr. Fox, your request is denied, for all of the reasons stated above. While this particular request is denied, I can tell you based on personal experience with this Board, that Brown Act compliance is important to them and any time a member of the public has a concern in that regard, the Board welcomes the input. If you have any further specific information or legal concern with regard to the superintendent search, please let me know.


Sincerely,

John Beiers




John C. Beiers
Chief Deputy County Counsel
363-4775
jbeiers@co.sanmateo.ca.us.



Save Paper.
Think before you print.

**************************

Subject: Re: Response to Brown Act violation allegation

Mr. Beiers,

Your prompt reply is appreciated.

To reiterate, I believe that the Board decision in closed session, as you yourself described it, "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." is a clear violation of the Brown Act as it does not involve the permitted close session action pertaining to a SPECIFIC employee. The Board's action, as noted on the agenda, had to do instead with a specific position - Superintendent, which is not a permitted closed session exception.

You further state " Government Code section 54957 and the case law interpreting this section, permit a public agency to discuss the merits of hiring particular individuals in closed session." That may well be but that was NOT the action which the Board, by your own admission, took. Furthermore, sworn testimony as to the identity of which said particular individuals were discussed at this meeting would be necessary to validate that claim, particularly in that you have stated that the Board had ONLY voted "to continue the selection process in house."

Your statements, in fact, confirm the very illegal act which I am challenging. I suggest that you quit digging the hole into which the Board has fallen.

Finally, it is not the Board's or your prerogative to decide if the Board has complied with the Brown Act - that will be determined in court unless this closed session action is rescinded.


Peter Carpenter




Like this comment
Posted by Observer
a resident of Woodside High School
on Mar 7, 2010 at 12:12 am

There is a gulf between "consider internal candidates first" and "consider internal candidates only".

It is wonderful that the district may have a good internal candidate. It is unlikely that the internal candidate is the best in the country. It is tragic that no outside thought is allowed to intrude, neither from an outside candidate nor from a member of the public which the board represents.

For discussion of a specific internal candidate: a closed session in fact be appropriate. For closing the search, a closed session is not appropriate as Peter ably points out.






Like this comment
Posted by concerned parent
a resident of Menlo Park: The Willows
on Mar 7, 2010 at 5:17 pm

For what it's worth, the survey put out by the district was rther worthless having no choices of substance. Given the history of this board, I would be suspicious that there is a particular candidate in mind and that the district is going through the motions to make it defensible. With that said, having an independent search committee would not be too much of an effort, even if the end result was an internal candidate at the end of the day. It could be as easy as a national posting of the position and seeing what candidates apply. It would be rather obvious pretty quickly if the only applicants would be over budget or underqualified, in which case focusing on internal candidates would make sense. To make this decision in the absence of any information strikes me as a less than thorough approach. Given the issues with innovation and the specific role of the current Assistant Superintendent in the conflict between SUHSD and the charters, promoting him into the position of Super without a transparent and thorough search seems like it would hardly help the relationship between SUHSD and the charters. Just for a more general perspective, there is speculation that California was not a finalist in getting Race to the Top funding from the Federal government because of too much conflict and an apparent opposition to required changes that would favor innovation. Our district may be contributing to that.


Like this comment
Posted by POGO
a resident of Woodside: other
on Mar 7, 2010 at 8:00 pm

Going out on a limb here...

The board will select James Lianides, current Assistant Superintendent to fill Mr. Gemma's vacated position.

The only thing bureaucrats like more than apathetic constituents is continuity.


Like this comment
Posted by disgusted
a resident of Menlo Park: Central Menlo Park
on Mar 8, 2010 at 7:47 am

Observer notes that the survey put out by the district was worthless, and I say amen. How can anyone take seriously a maneuver in which the community is asked its opinions about the "search" two days before the board makes the closed-session decision to greatly reduce the scope of that search? The survey's response deadline was March 5, although the board made its decision Feb. 24. The survey was mere window-dressing. Ridiculous.


Like this comment
Posted by James
a resident of Menlo Park: Menlo Oaks
on Mar 8, 2010 at 8:00 am

Just remember how well some of these Board members performed when they want to be re-elected next year. We're criticizing them now, but I'll bet most people will forget all this next year. Three of the four members who voted in the majority have been on the Board since 1999. They should know the rules governing the Brown Act; shame on them.


Like this comment
Posted by WhoRUpeople
a resident of another community
on Mar 8, 2010 at 8:15 am

POGO nailed it! What else would we expect from a Board made up of Gemmites. As for weather or not this is a violation of the Brown Act, I'm sure it mattered not. Won't be the first time that Gemma pushed his puppets down a road that led to expensive legal proceedings only to be proven wrong.


Like this comment
Posted by If I were a carpenter...
a resident of Menlo Park: Allied Arts/Stanford Park
on Mar 8, 2010 at 1:17 pm

True to his campaign promise to improve the SUHSD, newly elected board member, Chris Thomsen, showed real cojones being the lone voice against this blatant attempt to circumvent best practices law. Gemma's cronies need to be exposed for who & what they are, and run out of office in the next election. Believe me, I'm won't forget their names!


Sorry, but further commenting on this topic has been closed.

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