Posted by Edmund Burke, a resident of Another Palo Alto neighborhood, on May 11, 2013 at 9:30 pm
“Not Curious” posts "Oh and there also happens to be NO section of the Brown Act numbered "54956.9(b)(3)(B)."
The section of the Brown Act cited by Curious was amended by AB1344 effective 2012. As to the section in question, only the numbering was changed. The text is the same. So while “Not Curious” is correct that the numbering of Curious reflects the old numbering, you are quite exercised about a distinction without a difference. One thing beginning lawyers need to learn is when to press a point and when not to. When you press a point that is tangential or unimportant like paragraph numbering you lose credibility.
Substantively, both before and after the renumbering, this section provides exactly what Curious says. An agency can meet in closed session to receive advice of counsel on “anticipated litigation” when in the opinion of the board based on the advice of its lawyer there is a "significant exposure" to litigation based on existing facts and circumstances. Those facts and circumstances must be stated either in the agenda or orally prior to the closed session.
Merely listing the OCR complaint numbers (what currently appears on the agenda) is insufficient to meet this requirement. OCR case numbers are not "facts and circumstances." A list of OCR complaint numbers for which the underlying facts are not public does not constitute disclosing to the public those facts.
Not Curious next writes:
"First, ever considered that perhaps our school district has been sued."
This question, while snarky, is revealing. The board appears to have attempted to use the "safe harbor" noticing provision of 54954.5, in which the legislature provides a method of labeling agenda items for closed meetings that if used correctly would satisfy the Brown Act. As clearly stated in the "safe harbor" provision, in order to use the "existing litigation" descriptor, there must be the formal filing of litigation to which the board is a party, pursuant to Section 54956.9(d)(1). An OCR complaint is not even a proceeding before an adjudicatory body, let alone an actual formal lawsuit. See: 54956.9(d)(1).
I think where Curious might be mistaken is where he/she states that he/she thinks that the board made an honest mistake in using the “existing litigation” exception rather than the “anticipated litigation” exception. I think that a careful look at what they have done shows that they believe that they are already in "existing litigation" with OCR. This view is bolstered by the posting of "Not Curious" who sounds very much in tone and knowledge like one of our board members, who styles herself a “legal expert.” This use of the “existing litigation” exception is flatly incorrect under the statute.
The law provides that "For purposes of this section, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator."
OCR is none of the above. OCR cannot even take the district to court under its legal mandate (one reason that many districts, apparently including PAUSD, have historically viewed its dictates and Resolution Agreements as irrelevant and not necessary to follow). OCR is not exercising "adjudicatory" authority when it investigates complaints. OCR conducts investigations and can initiate administrative proceedings to remove federal funding or refer a case to the DOJ for litigation.
Neither of those things has happened in any of the 4 OCR cases under investigation and they are not realistically anticipated to happen in these cases. Indeed, investigations have not even been completed in 2 of them. In the other 2 Resolution Agreements have been entered into voluntarily by PAUSD and no adjudication took place by anyone. The OCR Case Processing Manual, Article IV states that administrative processings (something adjudicatory) can only happen “if OCR is unable to negotiate a settlement with the Recipient.” See: Web Link
Even Laurie Reynolds, the district's lawyer, admitted in her presentation to the board on February 26 that the process was not adjudicatory in nature. Indeed, she made much of this fact. She cannot now claim that it is "litigation." Thus, there is no "existing litigation" under the Brown Act. The notice by the board is deficient in nature and must be amended.
The correct way to notice the meeting is, as Curious suggests, to use the safe harbor for "anticipated litigation" under Section 54954.5, which is to be used when there is:
"Significant exposure to litigation pursuant to paragraph (2) or(3) of subdivision (d) of Section 54956.9: (Specify number of potential cases)”
"(In addition to the information noticed above, the agency may be required to provide additional information on the agenda or in an oral statement prior to the closed session pursuant to paragraphs (2) to (5), inclusive, of subdivision (e) of Section 54956.9.)"
The additional information referred to in this part of the statute is the “facts and circumstances” that must be disclosed to the public under 54956.9(e)(2).
"Not Curious," you state that the "facts and circumstances" requirement of 54956.9(e)(2) [formerly 54956.9(b)(3)(B)] "says nothing about disclosing facts publicly." You are also flatly wrong about that, a conclusion that will surprise no readers who have slogged along and made it to this point. The statute provides that the agency may hold a closed meeting under 54956.9(d)(2) when "a point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency."
"Facts and circumstances" are in turn defined in 54956.9(e)(2) which provides that if the facts are known to the plaintiff (which in this case they obviously would be) then the facts and circumstances must be disclosed to the public either on the agenda or in a public announcement prior to the start of the closed meeting. See Cal. Gov. Code Section 54956.9(e)(2)(2012)("Facts and circumstances . . . that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, ***which facts or circumstances shall be publicly stated on the agenda or announced."***)
"Not Curious" I have read your posts before. You write with great contempt for the public and also great confidence despite the fact that your posts are almost always entirely incorrect and filled with misinformation. Please educate yourself before you spread further misinformation and try to limit yourself to writing about matters within your scope of knowledge. It is damaging to the public to mislead it this way and it requires a great deal of my time to correct your work.
For more information see pages 21-24:
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This argument is not the point. Dana Tom failed to properly notice this meeting, which is required to include the subsection of the Brown Act under which the closed meeting exception is being claimed. Had Dana Tom properly noticed the meeting as proceeding under 54956.9(d)(1) or 54956.9(d)(2), we would know whether or not the district has already been sued or merely anticipates significant litigation exposure.
I think that Curious is clearly correct that the district has not yet been sued. Had the district been sued, it would have to list the case names on the agenda. OCR numbers are not case names and OCR complaints are not adjudicatory proceedings. [Portion removed by Palo Alto Online staff.]
Let's return now to the reason that the district is in this situation. The civil rights of several children have been violated. [Portion removed by Palo Alto Online staff.]
Although bullying occurs in many places, Palo Alto has staff that has been improperly trained to respond. Our complaint procedures are inadequate and violate the law. Palo Alto has a Compliance Officer, Charles Young, who appears to have failed to adequately carry out his job. Palo Alto still to this day has no disability discrimination complaint policy including within its Uniform Complaint Procedures. Despite the failings of the district as to the problems of discrimination against children with disabilities, PAUSD suffers from hubris and believes, against all the evidence, that it is doing things correctly. This hubris is reflected in the statement of the [portion removed] principal to OCR investigators that her teachers did not need any training on disability harassment because the staff was "very sophisticated.
Indeed.
The Duveneck principal who sent a letter to the community giving information about a similar OCR complaint recently filed was also "very sophisticated." That letter earned PAUSD a scorching reprimand from OCR for retaliation.
In these cases we have young disabled children being repeatedly physically, mentally, and socially bullied for their disabilities. This bullying is cruel and hurts the children very badly, interfering with their ability to receive an education. We have parents desperately complaining, in writing over and over to every official with an email address, trying to stop the abuse of their children. It does not stop.
Instead, parents are greeted by the district with nontransparency and hostility. Maybe it is all in their heads. Maybe they are the problem. Maybe they are overprotective. Maybe they have "issues" and are "problem families." They are treated like outsiders. Meanwhile their children cry and don't want to go to school. They get headaches and stomachaches. They feel worse about themselves. They are not learning, falling even further behind grade level. All they want is to have friends, be accepted, and fit in like everyone else. But no one is helping them. Mom is not helping. She says she will help but it never gets better, only worse. Now maybe the child is angry at Mom too, since she keeps promising to stop the bullying but she never does.
These families have filed complaints with the federal government in a last-ditch effort, despite their fears of retaliation, in order to try to help their wounded children, and recover their dignity.
The district has responded with covering and secrecy. The lack of transparency in this instance reminds one of Penn State and the Catholic Church, two cases in which the defendants did not, it should be remembered, do well ultimately. The right response when confronted with bad facts like PAUSD has is to conduct a proper investigation, announce the results of that investigation publicly, and then to make changes as may be appropriate given the facts that emerge in the investigation.
The lack of transparency, of which this improperly noticed closed meeting is just one part, has made this situation far worse. What could have been an opportunity to learn and grow has become a scandal being watched all over the state and country. PAUSD has also shown intransigence in its approach to OCR. PAUSD fought the investigation to the point that it received a Finding of Noncompliance, something that only happened in 1% of disability harassment cases in the US over the past 4 years. That elevated PAUSD's profile within the federal enforcement community. PAUSD still has not complied with its Resolution Agreement in case number 1, and now is on case number 4 with more in the pipeline (and evidently more complaints that preceded case number 1 that have not been disclosed as yet).
This lack of transparency, openness and cooperation extends to other things as well. The Duvenck parent letter criticized by OCR is one example. Another is that PAUSD and Dr. Skelly agreed to help concerned parents host a parent education event about OCR to the community, then reneged on that promise, then the Superintendent stated falsely that he had never agreed, then he said he didn't want to do it because it might generate additional complaints.
What seems to be generating additional complaints is that the conditions that led to the first complaints are still in place. PAUSD needs to have a full, fair, transparent public investigation into what went wrong and then make adjustments into how to fix it.
Until that happens, there is indeed "significant exposure" to litigation and the board is right to be concerned about that exposure. They should properly notice the meeting as anticipated litigation because they are correct to anticipate it.
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