Questioning legality of San Dieguito boundary group meetings

The fourth meeting of San Dieguito Union High School District’s “study group,” created to consider changes in high school boundaries, will meet Feb. 17.

This meeting, as with the previous three, will be closed to the public. Illegally closed, I believe.

All these meetings should have been open to the public, under California’s open meetings laws.

So agrees Terry Francke, founder and general counsel for Californians Aware.

CalAware (www.calaware.org) is a nonprofit, open government advocacy organization founded to help citizens and journalists understand their rights regarding the First Amendment, California’s open meeting Ralph M. Brown Act, and other laws ensuring transparency in government.

“If the task force was created by the school board, then it must meet openly and with notice to the public,” Francke said in an email Jan. 26. Calling it a task force or a study group, or any other name for that matter, makes no difference.

What matters is that the school board, composed of elected officials, authorized the creation of this committee.

Although trustees did not take a formal vote, the board nonetheless clearly gave the go-ahead to staff to create the study group.

According to the minutes from the June 19, 2014 meeting, “The board asked staff to form an ad hoc task force that would make a recommendation to the board” on the question of the district’s boundary policies.

Whether a formal vote was taken or general assent was given, matters not.

According to the law, the Brown Act applies to legislative bodies of local agencies and their subsidiaries, including boards, commissions, councils, committees, “or other bodies of a local agency that are created by charter, ordinance, resolution, or ‘normal action’ of a legislative body.”

“This applies regardless of ‘temporary v. permanent’ and ‘advisory v. decision-making.’”

Francke offered further evidence that the district is in violation of the law regarding open meetings.

In the 1993 California Frazer v. Dixon Unified School District case, which refers to section 54952 of the California education code, the issue was whether “the board ‘created’ the advisory committee by some type of ‘formal action.’”

The prevailing legal opinion states that boards may create advisory committees (call them what you will) “to assist with ‘examination of facts and data,’ and that the mechanisms by which such advisory bodies are created will be equally varied. We must give that section a broad construction to prevent evasion.”

The opinion further states that “adoption of a formal, written policy calling for appointment of a committee to advise the superintendent and, in turn, the board (with whom rests the final decision) … is sufficiently similar to the types of ‘formal action’ listed in section 54952.3.”

The legal conclusion that applies in this case is that advisory committees are covered under the Brown Act, and to exclude the public from the meetings is in violation of Ed Code.

RELUCTANT TO SPEAK OPENLY

Mike Grove, SDUHSD’s associate superintendent for educational services, said the study group is only making recommendations to the school board after reviewing and exploring all possible courses of action, and he justified the closed meetings because “no decisions are being made.”

But, as stated before, advisory groups are to be regarded the same as decision-making.

After my challenge, Grove consulted with lawyers who, not surprisingly, supported the district’s position that it has the right to keep the study group’s meetings closed.

I’ve asked the district numerous times over the past week to provide written legal justification for this opinion, but have not received any as of press time.

Grove said that opening up the meetings would inhibit the free flow of information and members would be reluctant to speak openly.

“It would be difficult to have productive, honest conversations,” he said, and would bring a different dynamic with the press and public present.

“It’s difficult to be productive when the press is there,” he added.

To which I say, “Tough.”

Transparency in government and open meetings are just so darned annoying and inconvenient.

Opening the meetings may make group members uncomfortable, but that’s no excuse for breaking the law.

As the law states, “The Brown Act embodies the philosophy that public agencies exist for the purpose of conducting public business, and the public has the right to know how its ‘collaborative decisions’ are being made.”

Closing these meetings violates California’s Brown Act which guarantees the public’s right to attend and participate in public meetings.

Grove noted that the initial meetings provided members with background information and legal constraints concerning school boundaries, and subsequent meetings built upon the previous ones.

So if parents come to one meeting without hearing an earlier one that detailed critical data that limited possible courses of action, he said they wouldn’t have the background needed to form viable opinions.

That may be true. But it doesn’t outweigh the legal requirement to make the meetings public.

COSTLY FACILITATOR

For more evidence that this committee was legitimately authorized by the school board, trustees at their Oct. 2, 2014 meeting formally approved a contract with consultant Leonard Steinberg at the rate of $350 per hour to facilitate the meetings.

The contract, which is open-ended, was approved by a vote of 4 to 1, with board member John Salazar opposed.

Salazar’s request to fellow board members to consider a cap on the facilitator costs was rejected. When he asked for a not-to-exceed amount, “they all said no,” Salazar said at the time.

Grove said last week that Steinberg’s company has billed the district just over $12,000 for his work to date, to prepare for and facilitate the three meetings.

He called Steinberg “productive and objective” and said it was good to have him lead this effort.

Grove said the decision was made to select an outside consultant to do the work rather than use someone from inside the district, to avoid the appearance that the district would be controlling the process and come to a predetermined conclusion.

But the district traded one potential misperception for another, very real one – widespread, valid objections over the high-priced contract and the amount of taxpayer money being spent on the facilitator.

Paying big bucks for someone to lead a task force might be more palatable if the purpose of the group was to explore options for something so complicated and impossible to sort out that no board member or staff administrator could wrap their heads around it.

But this is not one of those issues.

When demand for a school exceeds supply and a lottery system is used that does not offer preferential status to kids who live close to the school, the obvious solution is to give first priority to students within a certain geographic radius so they can attend their neighborhood school if they choose to do so.

If more seats are available after that, then it’s open to the entire district via a lottery.

Recommendation to the board, and done.

Salazar supported this approach and opposed the formation of a task force, but district staff and the board decided instead to create this cumbersome 43-member committee to study the issue – a move that has delayed for one full year any change in current policy.

And then district staff decided to close the meetings to the public.

This is a highly contentious and emotionally charged issue, with hundreds of parents anxious about the deliberations. Discussions should not be kept secret.

There have already been three illegally held meetings. Let’s not see a fourth.

Marsha Sutton can be reached at suttonmarsha@gmail.com.

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