D.A. Backs Off Accusations That Capo School Board Violated Brown Act

But the report has choice words for the district in creating a "toxic atmosphere."

The Orange County District Attorney’s office has revised a report critical of the , saying now that district trustees only appeared to violate the state’s open-meeting law when they approved employee concessions last school year.

Nevertheless, the new findings, which the district received Monday, take the board and Superintendent Joseph Farley to task for creating “political theatre” and a “toxic atmosphere” in which the public’s best interests were not necessarily considered.

“Ultimately, this case illustrates that the avoidance of the appearance of impropriety is just as vital as the avoidance of its reality," the revised report said. "Public confidence in government is adversely affected by both.”

In an earlier report published in May, two attorneys in the D.A.’s office concluded the board violated the Ralph M. Brown Act—which requires most business be conducted in meetings open to the public—on at least three occasions.

But later that month, Superintendent Joseph Farley asked the attorneys to reopen their investigation to peruse more information and interview the seven trustees individually.

“We are pleased that the district attorney listened to our concerns and reopened the investigation," Farley said in a press release Tuesday. "After a more thorough review, no Brown Act violations could be substantiated, and we are pleased that the findings reversed the district attorney’s previous conclusions.”

The new report itself, however, is not that clear-cut.

After reviewing records and talking to trustees—some of whom were reluctant and less than cooperative, according to the report—the D.A.'s office said there were now too many conflicting stories to draw definitive conclusions.

Still, the D.A. had sharp words for the district:

“The OCDA’s investigation also revealed what can be described as a seemingly toxic atmosphere within the halls of CUSD. Evidence revealed examples of condescension or disdain for other board members or dissenting members of the public. Meaningful discussion was replaced by facetious motions and political theatre,” it states.

The disagreements among school board members, which often results in a 5-2 split with trustees Ellen Addonizio and Sue Palazzo on the losing end, is taking a bigger toll than trustees might realize, the D.A. wrote.

“The motivations of colleagues and others were questioned or impugned. While mutual recriminations and concerns for contractual obligations, professional positions, political agendas, and labor peace were expressed, one was left with the impression that the very object of the entire organization, the education of the community’s children, had been allowed to fade into the background,” the report states.

Officials React

School board Vice President Gary Pritchard, who chairs the meetings, said he wasn't surprised that the D.A.'s office acknowledged it erred in its first report. And he said he expected Addonizio and Palazzo to mend fences with the board majority.

"I am confident that the two trustees who helped initiate the first investigation will want to reach out to their colleagues on the board and their constituents to reassure us all that they want to move forward without rancor," he said.

Pritchard didn't immediately return an emailed question seeking his reaction to parts of the report that put the responsibility on the entire board. 

In response to Pritchard's call for an end to the rancor, Craig Alexander, attorney for Addonizio and Palazzo, said that his clients do want to get along with their colleagues on the board "and put an end to the bitterness of the last few months. But working together is a two-way street."

Alexander took issue with the district attorney's characterization of "political theatre" in connection to the March 16 meeting. He said his clients declined to participate on his advice. "To call it leaving the room 'theatrically,' they couldn't float out. They actually had to walk. [The report's wording] is offensive, inaccurate and poorly stated."

Bill Feccia, senior assistant district attorney, told Patch he and his colleagues walked away from meetings with all seven trustees and Farley "flabbergasted." 

"We expected to find juvenile behaviour on the campuses of the schools, but we didn't expect to find it in the halls of the school district headquarters," he said.

The Dec. 7 Meeting

The May report, which the D.A. called a "notice of violation," focused its investigations into alleged violations on three closed-session meetings: Dec. 13, 2010, Jan. 26 and March 16. The new report adds the Dec. 7, 2010, meeting, following the .

The D.A.’s office had trouble uncovering what happened at the Dec. 7 meeting, given the conflicting stories trustees offered.

“Board members themselves differed on what happened, variously describing it as ‘action taken,’ a decision to take ‘no action,’ giving ‘direction,’ ‘no agreement to do anything,’ and so forth,” states the report, which does not indicate its author.

Meanwhile, the public wasn’t informed until Dec. 15, 2010, two days after another closed session, leaving a bad impression, the report states.

The Dec. 13 Meeting

Similarly, the events that took place at the Dec. 13, 2010 meeting are also unclear, the report states. The first version of the investigative report said trustees decided to approve the furlough days’ reinstatement at this meeting, but the new report backs away from that conclusion. The only item on the closed-session agenda that day was a superintendent’s performance evaluation.

“Again, memories of the participants differed. One trustee had no recollection at all of the Dec. 13, 2010, closed session. Another recalled discussing the superintendent’s evaluation and did not recall any discussion regarding furlough or salary restoration.

The report says several circumstances could lead an observer to deduce that trustees finalized their decision about the furlough days at the Dec. 13 meeting. The evidence includes letters Farley sent to the Orange County Department of Education’s office and the public announcement about the reinstatement.

The trustees formally voted for a partial restoration of teacher salaries at the Jan. 26 closed meeting. In the D.A.'s May 6 letter, investigators said this was a clear violation of the Brown Act.

However, the new report backs away from that conclusion. “[U]nless the action is the final approval of a labor agreement, the Brown Act provides no requirement for reporting out any action taken in closed sessions,” the report states. “That was not the case in this meeting. No violation of the Brown Act can therefore be shown.”

The new finding seems to contradict the May report, which stated:  “The discussion of that topic and the action taken at that meeting in restoring teachers' salaries violated the Brown Act, specifically the agenda requirements Govt. Code § 54954.2.”

Feccia said after talking to trustees, the Jan. 26 action was deemed an extension of discussions that began Dec. 7, 2010, which forced him to consider other applicable laws.

March 16: 'Curing' the Brown Act Violations

Finally, the District Attorney’s office had strong words for trustees regarding their performance at the any appearances of Brown Act violations.

At that meeting, Trustee John Alpay made what the D.A. calls a “facetious” motion “to disregard the rule of law, subject CUSD to an unfair labor practice and unnecessary litigation, incur unnecessary legal expenses, and needlessly waste tax dollars on attorneys and legal costs, throw this District back into turmoil, cause further erosion of home values…and affirmatively breach our agreement with” the teachers’ union, Capistrano Unified Education Association.

When board President Jack Brick seconded the motion, the board took an abrupt recess, where several trustees gathered at the dais. When the meeting returned to order, Brick rescinded his motion.

“That the moving trustee was observed jokingly discussing his motion with audience members served only to strengthen the impression that the board had no intention of seriously considering public input,” the report states. “Instead, it appeared that the board was predetermined to rebuff any opposition to what it had already decided, an ironic impression to convey at a meeting ostensibly held to invite meaningful public input and comment in an effort to correct past perceived improprieties.”

The D.A.’s report, however, said investigators could not establish whether the trustees gathered at the break represented a quorum, which would have been a violation of the Brown Act. So it has backed off from labeling the recess to discuss the "facetious" motion illegal.

Reality Check September 22, 2011 at 04:41 AM
This article is not about unions or spending levels. Off Topic Response. Zero Credit.
Christine September 23, 2011 at 12:03 AM
Capo mom, You can be found guilty of violating the brown act. Ellen was. Remember? I think it was 2008. The old board wanted to fire Supt Carter. Ellen had an attorney attend the closed session illegally. She was supposed to agendize that there would be a visitor there. She didn't. Back then the closed sessions were taped. On this occasion though Ellen asked for the tape to be turned off. She alleged that this attorney was there to privately advise her. Heard that before? This was also about the time of Ellen and Sue's visit to the superintendents office. It is funny to hear Ellen's supporters to demand that the board admit to a brown act violation. Something that Ellen was never willing to do even though she was found guilty.
Capo mom September 23, 2011 at 05:12 AM
The only thing close to being found guilty was the Fleming board's admission that they had violated the Brown Act on several occasions. I am sure you'd be familiar with that, Christine. Maybe that is what you are thinking of. You can't be found guilty without a trial. There hasn't been a Brown Act trial in CUSD, to my knowledge. But if what you say is true, it is a matter of public record. Please provide the link for it.
Christine September 23, 2011 at 02:09 PM
Here you go... http://www.ocregister.com/articles/meeting-240527-school-board.html
Capo mom September 24, 2011 at 04:44 PM
Thanks for the link. That was a civil action initiated by the union, not something prosecuted by the DA. The decision was based on the difference between the description of evaluating the then-superintendent and disciplining him. No one was found "guilty", the judge ruled the agenda was not written correctly. What was ironic was the quote from union boss Soderberg; "This entire ("reform") school board ran on a campaign dedicated to restoring honesty, integrity, and accountability to public education," Vicki Soderberg, president of the Capistrano Unified Education Association union, said in a statement. "But if their action in this case is their definition of these qualities, I want no part of it ..." Given that the new board is hers, I guess we can assume she prefers back room payoffs, "private" press releases and foggy memories.


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