A reader posted a comment on the Almanac's Town Square about last week's cancellation of a closed-session meeting of the Menlo Park City School District board, an action taken after the Almanac raised questions about whether the meeting would meet Brown Act requirements. "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," the poster wrote. To which we can say, "How well we know."
The school district had received an opinion from its attorney that a closed-door meeting to discuss "existing litigation" over the Mandarin Immersion Charter School proposed for -- but rejected by -- the district would be legal under the state's open meeting law, the Brown Act. But the big problem, in our mind, was that there is no "existing litigation" to justify such a closed meeting, and the Almanac wrote to the district asking it to cancel the scheduled Jan. 9 meeting. It did so, and deserves credit for the action.
The question centered on legal interpretations of the Act by John Yeh, an attorney specializing in charter school law. The district had hired Mr. Yeh to help with the complicated issue of whether to grant organizers' request that the district charter the proposed Mandarin immersion school. In our original and subsequent emailed letters, we challenged Mr. Yeh's interpretations.
We were backed by attorney Jim Ewert of the California Newspaper Publishers Association, a widely recognized expert on the Brown Act and other laws dealing with public access to government. In an interview with the Almanac, Mr. Ewert reviewed the four criteria set forth in the Brown Act regarding when a public agency's elected board is legally permitted to meet in private over litigation matters; he asserted that the district didn't meet any of those criteria.
Superintendent Maurice Ghysels said in an email to the Almanac on Monday that he and the board decided to act "in an abundance of caution" once the question was raised, and they postponed the meeting within about two hours of receiving the Almanac's first letter. He said that there are no current plans to reschedule the meeting, but left open the possibility that Mr. Yeh's analysis was correct, noting that "this is an area where legal opinions may differ."
While we're pleased that the district has taken this course, we're also aware that it's far from uncommon for public agencies seeking legal advice on open meeting questions to receive overly broad interpretations of the Brown Act -- no matter how tortured the reasoning -- to justify excluding the public from the process.
Mr. Ewert also told the Almanac that, if the scheduled meeting had taken place, he believes the closed session also would have violated Article 1, Section 3b, of the California Constitution, which states that 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."
The Town Square poster was correct in saying that it's all too easy to inadvertently violate the Brown Act, and we give the school district and the board the benefit of the doubt in believing that they didn't intend to flout the law. Elected officials are required to take an online course on the Brown Act, but one must wonder, with the number of violations and possible violations that come to light, how effective the online instruction is. In the past, public agencies arranged workshops for newly elected officials on the Brown Act and other open government laws, with a legal expert who could field questions and clarify areas of confusion. That's a practice we'd like to see local agencies return to.