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."