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Menlo Park school board drops closed session on charter school

 

The Menlo Park City School District postponed, and said it does not plan to reschedule, a closed session meeting of its governing board that was planned for Friday, Jan. 9, after the Almanac pointed out the meeting could violate the state's open meetings law, the Brown Act.

After conferring with Superintendent Maurice Ghysels and John Yeh, the attorney representing the district, the Almanac on Friday sent an email to board members and other district officials asking that the closed session not be held.

Superintendent Ghysels responded by postponing the meeting,"because of the timing and the importance of the issues in this controversy," he said in his response.

On Monday, Superintendent Ghysels said that although the district continues to believe the meeting could properly be held in closed session, it had no plans to reschedule. He cited the fact that "no court case or Attorney General opinion has specifically applied the litigation exception to the charter appeal process and that this is an area where legal opinions may differ."

"Therefore, in an abundance of caution, once the issue was raised, we decided to take the meeting off calendar and have no current plans to reschedule, which will allow the parties to focus on the pending charter appeal," he said in an email."

The posted agenda for the closed session was for a "conference with legal counsel-existing litigation." The agenda listed the lititgation as the "appeal of Menlo Mandarin Immersion Charter School" to the county board.

An email sent to board members Friday morning by Almanac Editor Richard Hine and Associate Editor Renee Batti said: "The Almanac believes that the closed-session meeting would not comply with California's Brown Act, which requires elected bodies to meet in public except for specified matters.

"The justification for the closed session, 'current litigation,' is not valid," the email says. "The appeal by the Menlo Mandarin Immersion Charter School is not litigation under the definition provided in the Brown Act," the email continues.

That opinion was supported by attorney Jim Ewert of the California Newspaper Publishers Association, who is a Brown Act expert.

The Brown Act was originally passed in 1953 and requires that actions of elected bodies "be taken openly and that their deliberations be conducted openly."

When asked about the basis for the closed session, which was also used by the district as the basis for a closed session held on Monday, Jan. 6, Superintendent Maurice Ghysels said in an email: "This is a proper use of closed session. The Brown Act's definition of 'litigation' is not limited to court proceedings, but also includes 'adjudicatory' and 'administrative proceedings.'"

However, the Brown Act does not define litigation as "administrative proceedings." It does say litigation is any "adjudicatory proceeding ... before an administrative body exercising its adjudicatory authority."

An adjudicatory proceeding, Mr. Ewert said, involves acting as a judicial body. The county board's consideration of the charter school proposal "does not fit that definition," he said. The county is acting in "an administrative capacity" in this case, he said.

The San Mateo County School Board's counsel, Claire Cunningham, has confirmed that the matter before the board is not an appeal of the school board's decision that the board must adjudicate, but is, according to Ms. Cunningham: "a request to the county board to approve the charter petition. ... The County Board conducts an independent review of the petition and makes its own decision about whether it should be approved or denied."

The district has been working with John Yeh, an attorney specializing in charter school law, from the Mountain View offices of Burke, Williams & Sorensen LLP. Mr. Yeh said the district believes the county school board's consideration of the charter application is litigation because it "involves the application of facts to the statutory criteria, as well as due process and the opportunity to be heard in the form of a public hearing," which are criteria given in an opinion by the California Attorney General's office in 1986.

Mr. Ewert said that attorney general's opinion was issued years before major changes were made to the Brown Act in 1994. The opinion, he said, "refers to the status of the law in 1986, which is substantially different from what the law is now."

The school district also does not meet any of the four criteria set out in the section of the Brown Act that the school district used to justify its closed meeting, Mr. Ewert said. Those criteria include:

● Formal litigation is underway.

● Legal counsel believes the agency has "significant exposure to" litigation.

● The agency is meeting only to decide whether it should be holding a closed session because of exposure to litigation.

● The agency is deciding whether or not to, or has decided to, initiate litigation.

The exception allowing closed meetings for litigation "is not as broad as their attorney is arguing it should be," Mr. Ewert said. "There is no legal precedent for this interpretation."

Mr. Ewert said the district's action also violates the state's constitution, specifically Article 1, Section 3b. That section says: "A statute, court rule, or other authority ... shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."

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Comments

8 people like this
Posted by MPCSD resident
a resident of Menlo Park: other
on Jan 9, 2015 at 1:27 pm

I am sorry to correct, but ANYWHERE that you spend in excess $100,000 on attorney fees (in excess of $200,000 in 2 school districts, MPCSD and Moreland, to date) to protect the rights of MPCSD school children IS considered litigation. If it were not for serious flaws in the Charter School Law, and a group of individuals (MMICS) with their own best interests in mind, these very essential school funds would have never been taken away from our children, and essentially wasted. I do hope the Almanac begins to support and speak up for ALL MPCSD children, especially those who need a voice and are in high need academically and financially. If you read the petition, those students left behind by this self-serving MMICS petition are especially our English Learner, Tinsley (24/year), Special Needs(9%) and families who rely heavily on the free and reduced hot lunch program (11% of our district).


5 people like this
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 9, 2015 at 1:43 pm

Peter Carpenter is a registered user.

Thank you Editor Hine - many public agencies will seek to hide controversial discussions as long as they are not held accountable for such deception.


3 people like this
Posted by abc
a resident of Menlo Park: Suburban Park/Lorelei Manor/Flood Park Triangle
on Jan 9, 2015 at 5:38 pm

Or perhaps the meeting was rescheduled because someone was sick? For them to meet, one should not assume "deception" is taking place. Deception of what? The District's findings on the Charter School are published. Their position is clear - they do not feel the school is set to be a functional educational environment as set forth at present. Where is there room for deception? Please do not decide that the Menlo Park City School District is somehow malevolent because they did their job and voted 'no'. As the Almanac, please try to represent this issue more clearly from both sides instead of painting this picture of coercion. It isn't true. All families involved are doing their due diligence and feel strongly for all the right reasons. In the end, it will go through due process and be decided by elected officials. Done and done.


Like this comment
Posted by Memories
a resident of another community
on Jan 9, 2015 at 5:40 pm

What about "potential litigation"? Might that allow closed session without a Brown Act Violation?


7 people like this
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 9, 2015 at 6:10 pm

Peter Carpenter is a registered user.

" In the end, it will go through due process and be decided by elected officials."

And that MUST be done in public not in a secret closed session.


2 people like this
Posted by Menlo parent
a resident of Menlo Park: other
on Jan 9, 2015 at 10:42 pm

Almanac: yet another piece of selective reporting aimed in somewhat unsubtle support of a terrible idea? C'mon guys! Cut it out. Menlo park absolutely does NOT need a charter school. If our board needs time to plot strategy and discuss potential litigation concerns, so be it.


5 people like this
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 10, 2015 at 6:53 am

Peter Carpenter is a registered user.

Menlo Parent - There is no selective "reporting" in this Editorial. The Editorial simply addresses the school board misuse of the litigation exception to the Brown Act requirement that public bodies do their business in public.

“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.”


1 person likes this
Posted by ABC
a resident of Menlo Park: Suburban Park/Lorelei Manor/Flood Park Triangle
on Jan 10, 2015 at 9:39 am

I hope to see you all at the proceedings on February 4th when the County Board of Education presents it's decision.
Because you have such energy for this topic, I hope you have been at the Public meetings last fall and the Country one last week. And I hope you have faith that the group of people preparing the Charter School are fiscally responsible with your tax monies, government monies, because it will indeed cost a lot to support and possibly dismantle this program. A program which does NOT have a budget for a school nurse, school counselor or specialists for kids who need extra support for learning.

It'd be nice to have more smart minds focus on the issues and attend meetings. And clearly Mr. Carpenter, you are one of those minds. I am certain you have read the Charter petition and the Districts findings.


6 people like this
Posted by focused
a resident of Menlo Park: Central Menlo Park
on Jan 10, 2015 at 10:22 am

This is a fascinating thread. Emotions over the charter school issue are so blindingly high that no one except Peter Carpenter can understand that this article is about keeping what should be a public process public. It's got nothing to do with the merits or harmfulness of the MI charter school being proposed. Nothing.

ABC is appealing for "smart minds" to attend meetings on the charter school and focus on the issues. That's fine. But the charter school is not the issue in this story. Will some "smart minds" care to comment on the issue that's the subject of the article?


6 people like this
Posted by pogo
a resident of Woodside: other
on Jan 10, 2015 at 11:24 am

pogo is a registered user.

Why the attempts to confuse the issue by questioning the worthiness of a charter school application with a potential Brown Act violation by your school board?

You should be able to be against a charter school and still want your officials to obey sunshine and public notice law.


5 people like this
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 10, 2015 at 1:06 pm

Peter Carpenter is a registered user.

Here is the Attorney General's guidance on the litigation exception:

"the Act contains specific additional requirements for closed sessions regarding pending litigation where the body believes it is subject to a significant exposure to potential litigation. (§
54956.9(b)(3).)"

And here is what the Brown Act states regarding the definition of potential litigation:

"For purposes of this section, litigation shall be considered
pending when any of the following circumstances exist:
(a) Litigation, to which the local agency is a party, has been
initiated formally.
(b) (1) A point has been reached where, in the opinion of the
legislative body of the local agency on the advice of its legal
counsel, based on existing facts and circumstances, there is a
significant exposure to litigation against the local agency.
(2) Based on existing facts and circumstances, the legislative
body of the local agency is meeting only to decide whether a closed
session is authorized pursuant to paragraph (1) of this subdivision.
(3) For purposes of paragraphs (1) and (2), "existing facts and
circumstances" shall consist only of one of the following:
(A) Facts and circumstances that might result in litigation
against the local agency but which the local agency believes are not
yet known to a potential plaintiff or plaintiffs, which facts and
circumstances need not be disclosed.
(B) Facts and circumstances, including, but not limited to, an
accident, disaster, incident, or transactional occurrence that might
result in litigation against the agency and that are known to a
potential plaintiff or plaintiffs, which facts or circumstances shall
be publicly stated on the agenda or announced.
(C) The receipt of a claim pursuant to the Tort Claims Act or some
other written communication from a potential plaintiff threatening
litigation, which claim or communication shall be available for
public inspection pursuant to Section 54957.5.
(D) A statement made by a person in an open and public meeting
threatening litigation on a specific matter within the responsibility
of the legislative body.
(E) A statement threatening litigation made by a person outside an
open and public meeting on a specific matter within the
responsibility of the legislative body so long as the official or
employee of the local agency receiving knowledge of the threat makes
a contemporaneous or other record of the statement prior to the
meeting, which record shall be available for public inspection
pursuant to Section 54957.5. The records so created need not
identify the alleged victim of unlawful or tortious sexual conduct or
anyone making the threat on their behalf, or identify a public
employee who is the alleged perpetrator of any unlawful or tortious
conduct upon which a threat of litigation is based, unless the
identity of the person has been publicly disclosed."

There is ZERO evidence that there is "a significant exposure to potential litigation" and therefore there is NO justification for a closed session discussion on the matter in question.



1 person likes this
Posted by Debacle
a resident of Encinal School
on Jan 11, 2015 at 6:19 am

Wasn't the Brown Act suspended a couple of years ago during the budget blow-up?

AB 1464 suspends the following Brown Act provisions:

Preparation and posting at least 72 hours before a regular meeting of an agenda that contains a brief general description of each item of business to be transacted or discussed at the meeting. (See Gov. Code § 54954.2(a).)

Inclusion on the agenda of a brief general description of all items to be discussed in closed session. (See Gov. Code § 54954.2(a).)

Disclosure of each item to be discussed in closed session in an open meeting, prior to any closed session. (See Gov. Code § 54957.7 (a).)

Report in open session prior to adjournment on the actions and votes taken in closed session regarding certain subject matters. (See Gov. Code §§ 54957.1(a)(l)-(4), (6); 54957.7 (b).)

Provide copies to the public of certain closed session documents. (See Gov. Code § 54957.1 (b)-(c).)

Did the Almanac threaten the District over a law that isn't on the books??


4 people like this
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 11, 2015 at 8:39 am

Peter Carpenter is a registered user.

AB 1464 suspended certain Brown Act provisions regarding posting of agendas but AB 1464 did NOT change the open meeting requirements of the act. Most agencies continue to comply with the agenda posting requirements suspended by AB 1464.


6 people like this
Posted by pogo
a resident of Woodside: other
on Jan 11, 2015 at 10:06 am

pogo is a registered user.

Regardless of what "side" you support, how could you ever want your public officials to disobey sunshine and public notice laws?


Like this comment
Posted by peninsula resident
a resident of Menlo-Atherton High School
on Jan 11, 2015 at 11:13 am

While I'm in agreement that public bodies should have public meetings in public as enforced by the brown act, I think it's also worth pointing out that many agencies (public and private) have a poor understanding of what the Brown Act allows and disallows.

The town of Atherton is one such example.

As someone who has been a member of commitees in Atherton, I always found their willingness to censor -- using the Brown Act as the excuse -- unbiased 3rd party data and articles through email troubling.

The Brown Act does not prevent members of public bodies from sharing data to other members, it merely requires those communications be public. Atherton's officials have made it clear they don't see it that way and continue to censor, using their misapplication of the Brown Act as their excuse.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 11, 2015 at 11:42 am

Peter Carpenter is a registered user.

"The Brown Act does not prevent members of public bodies from sharing data to other members, it merely requires those communications be public."

Wrong, the Brown Act prohibits the use of email to develop a consensus on any item that is within the jurisdiction of the relevant public body. Even making such emails public does not solve the problem. Public decisions must be made in a public meeting with the opportunity for the public to provide input before the decision is made. Email exchanges between members of a relevant public body are NOT permitted by the Brown Act as they constitute an illegal private serial meeting.

Here is the Attorney General's opinion:
"In 84 Ops.Cal.Atty.Gen. 30 (2001), this
office concluded that a majority of a body would violate the Act if they e-mailed each other
regarding current issues under the body’s jurisdiction even if the e-mails were also sent to the
secretary and chairperson of the agency, the e-mails were posted on the agency’s Internet Web
site, and a printed version of each e-mail was reported at the next public meeting of the body.
The opinion concluded that these safeguards were not sufficient to satisfy either the express
wording of the Act or some of its purposes. Specifically, such e-mail communications would
not be available to persons who do not have Internet access. Even if a person had Internet
access, the deliberations on a particular issue could be completed before an interested person
had an opportunity to become involved."


Like this comment
Posted by peninsula resident
a resident of Menlo-Atherton High School
on Jan 11, 2015 at 1:25 pm

> Peter Carpenter wrote:
> Wrong

I sense a strawman coming...

> Brown Act prohibits the use of email to develop
> a consensus on any item that is within the
> jurisdiction of the relevant public body.

...and there it is. Strawman.

Strawman: A straw man is a common type of argument and is an informal fallacy based on the misrepresentation of an opponent's argument. To be successful, a straw man argument requires that the audience be ignorant or uninformed of the original argument.

I neither said nor implied that the content of the emails are used to develop consensus. You are refuting something I never said or implied.


> Here is the Attorney General's opinion

The Attorney General is a part of the Executive branch. They enforce the "opinion" of *their interpretation* of law. That does not mean, however their interpretation is correct; they are NOT the canonical source. The canonical interpretation comes from the courts, particularly the State Supreme Court.

Do you have an example of the courts agreeing and enforcing the Brown Act "opinion" (your word) of the Attorney General?

Even if you do, I'll also point out that the opinion you cite isn't relevant. We're not talking about "current issues" nor "deliberations on a particular issue".


That said, I eagerly await your citation of the not relevant court case.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 11, 2015 at 1:55 pm

Peter Carpenter is a registered user.

The Act expressly prohibits serial meetings that are conducted through direct communications,
personal intermediaries or technological devices for the purpose of developing a concurrence
as to action to be taken. (§ 54952.2(b); Stockton Newspapers, Inc. v. Redevelopment Agency
(1985) 171 Cal.App.3d 95, 103.)

The use of emails between elected officials is risk not worth taking. I have served in elected office for over a decade and I am well versed in the Brown Act.

This is what the League of Cities states:
"New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an Internet chatroom or blog dialogue.
Communicating during meetings using electronic technology (such as laptop computers, personal digital assistants, or cellular telephones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process."

And peninsula resident - what is your exact experience with and expertise of the Brown Act?
Can you cite a single legal opinion authorizing electronic communications between elected officials?


Like this comment
Posted by pogo
a resident of Woodside: other
on Jan 11, 2015 at 2:38 pm

pogo is a registered user.

One of the first things that elected public officials do is attend an orientation program to review the requirements of the Brown Act.

Mr. Carpenter is absolutely correct. I've copied the relevant text and link below.

"The Act only applies to multi-member bodies such as councils, boards, commissions and committees, which are created for the purpose of reaching collaborative decisions through public discussion and debate. For purposes of social media/Web 2.0, departments must remain aware that the Brown Act applies to meetings of a majority of the members of such multi-member bodies, including “serial meetings,” which can be held when members collect information or conduct business by communication in sequence, such as by e-mail or the Internet. The department should avoid having its use of social media/Web 2.0 create a meeting of such multi-member bodies, and when in doubt the department should contact County Counsel."

More information on the Brown Act is available at Web Link


1 person likes this
Posted by peninsula resident
a resident of Menlo-Atherton High School
on Jan 11, 2015 at 7:37 pm

Peter Carpenter wrote:
> The Act expressly prohibits serial meetings
> that are conducted through direct communications,
> personal intermediaries or technological devices
> for the purpose of developing a concurrence
> as to action to be taken. (§ 54952.2(b);
> Stockton Newspapers, Inc. v. Redevelopment Agency
> (1985) 171 Cal.App.3d 95, 103.)

Citing this as a response to my post is a strawman. You're implying that I'm advocating serial meetings (then refuting it by pointing out this source), which is not the case. Strawman.

That said, I'm well versed on the definition of a serial meeting. And certainly a serial meeting can occur from sending emails. But not all emails are serial meetings. THAT is (at least 1 of the ways) where you are confused, and wrong.

> The use of emails between elected officials
> is risk not worth taking.

Well, we agree it's a risk you shouldn't be taking because you clearly don't know (and/or have been misinformed on) the proper applications of the Brown Act. But censoring members of a body due to a lack of understanding on where and how the Brown Act applies is a poor excuse for censorship.

> I have served in elected office for over
> a decade and I am well versed in the Brown Act.

And as I initially stated, many agencies have a poor (or I'll also say "incomplete") understanding of what the Brown Act allows and disallows. You are living proof of my initial point.

> And peninsula resident - what is your exact
> experience with and expertise of the Brown
> Act? Can you cite a single legal opinion
> authorizing electronic communications
> between elected officials?

You are being a disingenuous debater by ignoring my request to cite any court case that backs up the Attorney General (in your words) "opinion". As soon as you conceed your citation of the Attorney General is irrelevant, we can move forward. I eagerly await your concession.

All you've done in this discussion is throw out strawman after strawman, which I've called you on. Frankly, while I usually find myself agreeing with you in your posts, in this case you have been intellectually lazy and are not grasping the scope in which agencies are misapplying the Brown Act. To be blunt, you are in over your head.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 11, 2015 at 7:42 pm

Peter Carpenter is a registered user.

pr - You are simply wrong and misinformed. The facts seem irrelevant to you.

If I send an email to one of my elected colleagues and he sends it, even without my knowledge, to another of our colleagues then an illegal serial meeting has occurred.

Just exactly what don't you understand about such a breach of the public trust? Except that you yourself have apparently never earned that public trust.


1 person likes this
Posted by peninsula resident
a resident of Menlo-Atherton High School
on Jan 11, 2015 at 7:45 pm

pogo wrote:
> Mr. Carpenter is absolutely correct.

Sigh...I wish people would learn how a strawman fallacy works.

His strawman arguments are correct. That's how a strawman argument works. And they're irrelevant.

Your point?

Gawd...living near Stanford clearly doesn't rub off...


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jan 11, 2015 at 7:56 pm

Peter Carpenter is a registered user.

pr - come back and speak out when you have had some real world experience with the Brown Act. Until then just call anything that you don't understand a strawman.


1 person likes this
Posted by Tunbridge Wells
a resident of Menlo Park: Allied Arts/Stanford Park
on Jan 12, 2015 at 8:39 am

Tunbridge Wells is a registered user.

The Brown Act is a trap for the unwary. I'm not opposed to it, but for those who are subject to it, it is very very easy to accidentally cross lines. While I am in complete support of transparency in our government, I also understand that this is an area where it is very easy to make inadvertent mistakes. The meeting was canceled, so that seems to be the end of this particular story.


1 person likes this
Posted by pogo
a resident of Woodside: other
on Jan 12, 2015 at 9:44 pm

pogo is a registered user.

Tunbridge -

You are absolutely correct - it is very easy for our leaders to make mistakes and violate the Brown Act. That's why the tutorials are required, thorough and why email chains are discouraged. It's the one area that consistently gets elected bodies into trouble.

The spirit of the Brown Act is that consensus should be reached in public, not behind closed doors or in private. The reason an email thread can easily violate the Act is because Representative A can email Representative B stating that he is voting a certain way. Representative B can then email Representative C telling her that A and B are voting a certain way.

When the meeting takes place, without any discussion, Representatives A, B and C know they already constitute a majority. That "private knowledge" deprives the public of meaningful input, opinion, or how their representatives reached their decision.

Sunshine is always preferred... and there's no strawman here at all.


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

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