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Accusations of two Brown Act violations by the Morgan Hill Unified School District and its board of education surfaced this week—one coming from the Santa Clara County Office of Education that is being sued by the district, and the other from three of its own school board trustees.
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The county requested that MHUSD withdraw its existing lawsuit against them for approving the Voices-Morgan Hill charter school petition on appeal because the MHUSD board “failed to properly agendize or publicly announce any consideration or approval of a decision to initiate litigation.” The county also alleges the board “failed to publicly report (their) authorization to initiate litigation.”
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In a May 19 letter addressed to MHUSD Superintendent Steve Betando and MHUSD Board President Bob Benevento, the county office of education’s general counsel, Maribel Medina, contends that both are violations of the open meetings law.
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In a less formal allegation of a Brown Act violation, MHUSD Trustees Gino Borgioli, David Gerard and Rick Badillo claimed the May 26 meeting agenda was not adequately posted to the district website 72 hours prior to the meeting, as required by the Brown Act. They requested Tuesday’s meeting be postponed until that happened. But, after the board heard district staff’s account as well as legal advice from attorney Karen Rezendez, Benevento felt comfortable continuing the meeting as scheduled and adjourning into closed session. The discussion delayed the start of the meeting by one hour.
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“We feel the Brown Act was violated and we really don’t want to go forward,” with the meeting, said Borgioli prior to Benevento’s decision. Borgioli said the issue was brought to his attention over the Memorial Day Weekend by parents who could not find the agenda on the district website.
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“If you knowingly proceed, knowing there’s a Brown Act violation, then you’re a part of the misdemeanor,” he added.
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A violation of the Brown Act, which holds governing bodies accountable for conducting “open and public” meetings, is considered a misdemeanor by state law and the actions taken by the board can be ruled null and void.
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County, district differ on Brown Act violation
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County Superintendent Jon Gundry said it was more of a request than a demand for MHUSD to withdraw the lawsuit—although the county document calls it a “demand to withdraw litigation”—since MHUSD could easily refile the lawsuit in Santa Clara County Superior Court after sorting out the Brown Act issue.
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“If they disagree and continue and we are correct about the procedural errors with the filing and the Brown Act violation, then they would lose on procedural grounds without even arguing the merits (of the case),” Gundry said.
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The county board approved Voices petition by a 6-1 vote in November 2014, a few months after the MHUSD board voted 6-1 to reject it. MHUSD filed its lawsuit April 29 in an effort to prevent Voices from opening a Morgan Hill school in August.
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Gundry, who does not expect the lawsuit to be settled before the start of the 2015-16 school year, described the existing litigation as “unfortunate” and stressed that the county office wants to support local school districts rather than oppose them in the courts.
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“It’s hard to tell if this will actually go to court or not,” Gundry said.
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Betando responded to the county’s claim in a May 22 email, refuting their argument of a Brown Act violation with a list of government codes that he thinks protected the district’s procedure for initiating the lawsuit. He concluded “the district does not believe that there is any merit to (the county’s) contention.” Previously, Betando told the Times he was given support and direction from the board to pursue the lawsuit, but it did not need to be reported out in public since no action was taken by the board in closed session.
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When given details of the Brown Act dispute between the county and district, California Newspaper Publishers Association staff attorney Nikki Moore gave her own analysis. Since the closed session discussion fell under “anticipated litigation,” the board did not have to report it out if proper procedures for posting the item on the agenda were followed, according to Moore. However, she questioned why the district did not provide more specific information about the potential lawsuit on the agenda “so someone in the public would understand what type of dispute” was about to be discussed in April 21 closed session.
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“It’s questionable whether they complied or not. If they withheld references to the specific dispute based on the exemption (within the Brown Act that covers closed session), that might be OK,” said Moore, noting that withheld information could be considered privileged. “If they had (sufficient) reason to keep the information confidential, I would understand that.”
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The county office thinks that is not the case.
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“No such item appeared on MHUSD Board agendas that we have reviewed. There are two litigation related items on the MHUSD Board agenda for April 21, 2015 , one for ‘existing litigation’ and a second for ‘significant exposure to litigation’—neither one appropriate under the Brown Act to initiate litigation,” the complaint reads.
Voices moving forward with charter regardless of litigation
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An attorney representing Voices, Sara Coleman, who was one of eight speakers prior to the May 26 closed session, said the district’s lawsuit was without legal merit.
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She also warned that the board was violating the Brown Act because the agenda was not posted on the district website with 72 hours notice. Coleman, like others who spoke Tuesday night, were under the impression that the board was going to discuss the lawsuit in closed session. However, once the board returned from closed session, Benevento said he had no action to report.
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“I hope the board is considering that if you do not succeed in this lawsuit, not only will you be on the hook for your own legal fees but also potentially the county’s and Voices’ (legal fees),” Coleman said. “Sounds like there’s a disagreement on how district funds are spent and I just hope that’s taken into consideration when you discuss this matter in closed session.”
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Borgioli, Gerard and Badillo said that the link was not on the district’s website, in the location where it is usually found, 72 hours before May 26 and therefore not properly posted for the public. Borgioli claimed he had snapshot images of a computer screen to support that.
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The district contended that clicking on any of the links next to any scheduled meeting date from the district site would direct the visitor to the site with the agenda listing. Thus, it was available to the public, even if was slightly more complicated to find and not as it is normally done.
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“It wasn’t as easy as it was (for past meetings), but it was on there,” Betando said.
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Badillo replied that it was not “readily available.”
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After hearing both sides, Rezendez said that as long as there was a way to get to the agenda from the district website it was not a Brown Act violation in her opinion. Paper copies of the agenda were also posted at all school sites and the district office 72 hours in advance.
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Voices founding principal Frances Teso was also at Tuesday’s meeting along with several members of the public who claimed they too could not locate the May 26 agenda online. Teso said whatever happens with the lawsuit that Voices-Morgan Hill, which eclipsed its first-year enrollment projections and located a privately-leased school site, will open for the 2015-16 school year.
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“We’re moving forward regardless. We believe this is just another tactic in a long list of tactics by the district trying to prevent Voices from opening,” Teso said. “Enough is enough. We just need to focus on the kids and providing them a high quality education for next year.”
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The county office of education settled out of court with four other local school districts that claimed the county board overstepped its authority when it approved petitions for 20 Rocketship Education charter schools in December 2011. In that settlement, where neither side admitted any wrongdoing, Rocketship leaders agreed to slow their expansion of schools within the county and stop it altogether in some areas.
