Education Matters: Backspace erase on election of officers

One good thing about the new composition of the San Dieguito Union High School District school board is that at least there is movement.

Marsha Sutton

(Copyright of Marsha Sutton)

It may not be movement in the right –or even proper – direction, but at least the board is taking action, after six months of a divided 2-2 board that could hardly agree on anything.

Following the sudden resignation of former trustee Melisse Mossy in April of 2022, the divided board struggled to act, and compromise seemed next to impossible amidst a steady stream of distracting public input replete with personal attacks, unfettered vitriol and a focus on divisive issues unrelated to student needs.

Now, with three of the five trustees making up a union-backed majority on the board, we have action.

I realize I’m grasping at straws here, because the actions taken so far are concerning.

Much has been written about the school board doing a backspace erase on the election of officers at its Dec. 13 board meeting. Some say they needed to do it – others say they simply decided to do it.

In either case, the redo was in response to a complaint filed by Janice Holowka who claimed a deliberate move was made, specifically by union-backed trustees Katrina Young and Rimga Viskanta, to avoid public comment before the election of officers.

In her formal complaint, Holowka referenced the published Dec. 13 agenda which originally listed public comment well before the election of officers.

“[B]y moving Agenda Item 14E (election of board president, vice president and clerk) to be … before Agenda Item 9 (public comment), you, the governing board, prevented members of the public from addressing the board” before the election of officers, she wrote in her complaint.

It appeared to be a “deliberate action to ‘mute’ criticism” by those who might have had opposing views on the inevitable election of union-backed officers, she wrote, asking that the Dec. 13 election be considered null and void.

In her written response to Holowka’s complaint, SDUHSD attorney Kendall Swanson wrote that “nullification of an action [is allowed] if the legislative body violated the open and public meeting requirements ...”

“Nevertheless,” she added, in a reply full of confusing legalese language, “the board takes your concerns seriously and ... plans to hold a special board meeting next week to cure and correct the alleged Brown Act violation ...”

So is it simply allowed, or is the do-over required?

Holowka responded as follows: “As the public was not given any advance notice, people attended the [Dec. 13] board meeting prepared, and expecting, to have their opinions heard before the board acted to elect board officers.”

But Holowka said the issue is moot if the board plans to redo the election properly and that she would not pursue the matter further.

Cure and correct

In response to my email to Viskanta about the Dec. 13 elections, she wrote, “I was of the opinion that election of board officers, which was not an action item on the agenda and was an internal board matter, did not require public comment.

“The attorney’s advice was hard to hear because of mic problems, and I misunderstood the statement as guidance and not legal imperative. After reviewing the video and re-reading the Brown Act myself, I concluded that I had been wrong and we will re-do the action properly.”

In a later email to me, Viskanta walked back her acknowledgement that she had been wrong.

“[O]ur attorney determined that the remedy for any Brown Act violation regarding public comments is not to null and void the action and redo it,” she wrote.

“However, as a board we decided to take this extra measure anyway to establish better practices moving forward even though it wasn’t required by law for us to repeat the action.

“We decided this collectively as a board in closed session.”

So she’s saying she’s not compelled to do the right thing? That it’s a choice?

First, people attending the Dec. 13 meeting said Swanson’s comments about the matter were clearly audible, even though she was sitting in the audience with no microphone when asked for her advice.

Second, Viskanta is wrong when she stated that the election of officers is not an action item. Any time there is a vote taken, it’s an action item. Approval of the agenda is an action item. Approval of the consent agenda is an action item.

Just because the election of officers was not listed under the heading “Action Items” does not mean the public cannot comment on it.

Third, when Viskanta wrote that she “misunderstood the statement [from the attorney] as guidance and not legal imperative,” it’s murky what the difference might be. If an attorney gives “guidance,” is that not legal advice?

Viskanta said at the Dec. 13 meeting that the purpose [of the election of officers] “is just among ourselves. I think doing public comment first on this, that’s unusual.”

That’s when trustee Michael Allman asked interim superintendent Tina Douglas for her advice.

The election of officers “should come after public comment,” Douglas said. “I think the motion was to have it come before public comment. I think members of our community might have something to say about what we do, so I think it would be good to hear from them first.”

Allman then asked Swanson for her advice, which admittedly was difficult to hear. So Allman repeated it for the public, saying that she said to have public comment first.

“We heard the recommendation from our attorney,” Allman said. “I personally would like to hear what the public has to say before we vote on who our leadership is.”

For Viskanta to ignore advice from her superintendent and legal counsel is a bad start.

Silencing the public

Young’s comments from the Dec. 13 meeting were troubling when she said the board in the past held the election of officers before public comment so there’s precedent.

But because a mistake was made in the past, it is specious to rely on precedent to justify continuation of wrong-doing. And only two years ago the agenda listing was proper.

That agenda, for the election of officers from the Dec. 2020 SDUHSD board meeting, clearly lists Item 2 as: “Annual Organizational Meeting – public comment, if any.” Under that is Item 2a: “Election of board president, vice president and clerk.”

Worse yet were Young’s comments about a CSBA (California School Boards Association) conference where she said she learned that trustees must be “very careful” about acting on public comment.

“They are people who come because they have something they want to talk about but .... we can’t lead only by the voices in the boardroom,” Young said, adding that the district has more than 13,000 students, averaging double that number of parents or guardians who were not there on Dec. 13 to voice their thoughts.

Young said it’s not good governance to base board decisions on public comment from just a handful of people when many more constituents are not present.

Do leaders at CSBA really suggest that board members should not listen to public comments because the people who choose to speak before the board have an agenda and are only a small fraction of the district’s constituents?

Wow. It’s hard to know where to start with that one.

To deny public comment because those who choose to speak may not represent the views of others, is to suggest silencing everyone, really. If we take her words seriously, no one should be allowed to make a comment because there aren’t enough of the district’s constituents present to offer varying viewpoints.

Young may have been fearful of hearing negative comments directed her way, but trustees don’t get to pick and choose who can speak, and when.

Also, why should public comment change the board’s decisions?

Maybe offer new perspective, yes. But it’s each trustee’s responsibility to weigh all sides of controversial issues, despite hearing public comments from just one faction. They were elected to do the hard work and make tough decisions, even in the face of public criticism.

Clear violation

The election was redone Jan. 10, with Viskanta serving as board president even though she was elected board president under questionable legal circumstances at the Dec. 13 meeting.

According to a story in the Encinitas Advocate, she said before the re-vote, “We did not have to do this action again. We chose to do this action again because it’s the right thing to do. And we do want to facilitate greater participation.”

The do-over vote was taken, but not before newly elected trustee Phan Anderson said that the board “clearly violated” the Brown Act when they failed to allow public comments.

“I want to acknowledge that a mistake was made,” she said. “So let’s learn from it so that it doesn’t happen again.”

Viskanta was elected board president and Jane Lea Smith was elected vice president, just as at the Dec. 13 meeting.

But in a surprising twist, Anderson, elected clerk on Dec. 13, declined when she was the nominated for clerk on Jan. 10. She gave no specific reason, instead nominating Young in her place. One can only speculate.

The disdain exhibited by the board majority for public input was center stage in December. A misstep was made, clearly. And there may be more “cure and correct” actions the board needs to take, after receiving two notices about possible violations also made on a different Dec. 13 agenda item.

Moving past this unfortunate beginning and establishing trust is the board’s first challenge.

Opinion columnist and education writer Marsha Sutton can be reached at suttonmarsha@gmail.com.

Marsha Sutton is a columnist and presents her opinion. If you disagree or agree with her opinion, we’d like to hear from you. Email your comment to editor@delmartimes.net.

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