Alleged Brown Act violation by County Board of Education during Dozier-Libbey charter issue
By John Crowder
A closed session meeting of the Contra Costa County Board of Education on May 7 resulted in an alleged violation of the Brown Act, according to attendees.
The Brown Act is California’s open meeting law that is meant to ensure that public business is, with specified exceptions, conducted openly. In accordance with the act, items discussed by public bodies, such as boards of education, even in closed session, must be properly noticed on the agenda for a meeting and a report must be made following the session stating what decisions were made.
Emails obtained from the Contra Costa County Office of Education (CCCOE) through a California Public Records Act request reveal that, during the May 7 closed session meeting of the board, attorney Adam Ferber appeared and spoke with those present about the Dozier Libbey Medical High School (DLMHS) conversion charter petition.
The meeting in question came two days after a letter was sent to Bill Clark, Associate Superintendent of the CCCOE, from Scott Holbrook, which stated that his firm, “serves as legal counsel to the Antioch Unified School District. In the letter, Holbrook states, “This controversy (the DLMHS charter petition) has resulted in several streams of litigation which the Contra Costa County Board of Education and Contra Costa County Office of Education will very likely be pulled into if the conversion petition is approved on appeal.”
After listing the potential litigation, Holbrook’s letter concludes, “In light of the foregoing, I strongly urge the Contra Costa County Board of Education and Contra Costa County Office of Education to avoid this controversy in it entirety. My advice to the county boards of education and county offices of education that I regularly counsel under these circumstances would be, at a minimum, to take ‘no action’ and punt this matter to the State Board of Education.”
Ferber’s statement during the board meeting which, according to participants, also recommended that no action be taken on the DLMHS petition, caused some of the board members considerable distress. CCCOE board Vice President Dan Gomes, said, “I think that, in a way, that attorney was working for the district. I was taken aback by the letter from AUSD. This fellow (Ferber) that came in and recommended we do nothing was along the same lines as the AUSD lawyer.” He went on to say, “Ferber went over a script, we ignore, just skip over (approving the petition). I thought to myself, ‘I’ve heard this before (from the AUSD letter)’.”
According to board member Pamela Mirabella, “I was confused about why we were talking about Dozier Libbey in closed session. There were four things on the agenda…not included was Dozier Libbey.”
Board Member Cynthia Ruehlig was even more concerned with Ferber’s presentation. “I think there was an intent to influence the board,” she said. She also stated, “To correct a Brown Act violation, you must report what was said, put it in the minutes, and, if grievous enough, you must report it to the District Attorney.”
Board member Richard Asadoorian stated, “What concerned me was that we were advised to let this attorney speak, and we couldn’t really extend the closed session, and had no real time to respond to this presentation. The only Brown Act issue was that it wasn’t properly put on the agenda.”
Nonetheless, over the next several days, both Mirabella and Ruehlig followed up on their concerns in emails and letters to Dr. Joseph Ovick, Superintendent of Schools for Contra Costa County.
In an email sent on May 12, Mirabella states, “I didn’t agree with the ADUSD lawyer to ‘not take action.’” She goes on to say, “Legal Counsel (Name? Not Cynthia discussed with the County Board anticipated litigation regarding Dozier-libbey and the board took no action. Do we have a brown act problem by not reporting out correctly to the public?” In another email sent by Mirabella to Ovick on May 20, one day after a second closed session meeting which, according to Clark, was held in order to cure any Brown Act problem, she says, “Closed session—after I asked you to remind Dan G. to report out to the public that in closed session the board took no action, he did so. This is against the Brown act and very serious.”
On May 8, the day after the closed session meeting at which Ferber spoke, Ruehlig sent a letter to Ovick, and, in an indication of the seriousness with which she viewed the matter, sent a copy to the Contra Costa County district attorney. In it, she begins by stating, “This letter documents the violations which occurred during closed session of May 7, 2014.”
The letter states, “At this meeting, Atty. Ferber (who was not invited and was, in fact, unknown to all Board Member) discussed an item which was not on the agenda; specifically a threat of a lawsuit from the Antioch Unified School District. This is a violation of the Brown Act that ‘no action or discussion shall be undertaken on any item not appearing on the posted agenda’.”
“In addition, Atty. Ferber provided every Board Member with a copy of a letter threatening the Office of Education with a lawsuit from the Antioch Unified School District.”
“Contact with Atty. Ferber was evident by the District lawyer’s public comment urging the Board to listen to staff and ‘our counsel.’”
Ruehlig describes the presentation by Ferber as a “prohibited ex parte communication,” and urges that several steps be taken to correct the situation, including publishing the comments he made.
Associate Superintendent Clark, in an interview conducted last week, acknowledged a possible Brown Act problem with the meeting, but said he believed it had to do with the technicalities of the agenda and reporting requirements, and not with the discussion of the Dozier-Libbey matter.
“Exposure to legal risk was heightened by this case,” Clark explained. “Enrollment, assumptions with revenue, and the independent charter’s right to occupy the building could be found faulty, and might make us subject to a lawsuit from AUSD. We had every right to discuss this in closed session,.”
He also shared Ferber had been hired to help county staff understand the legal nuances of this particular petition. Clark also noted that, on advice from County Counsel, he believed any Brown Act problem had been cured by the closed session meeting held on May 19, at which the agenda and reporting requirements were met.
The district attorney’s office was contacted, last week, but it was not yet confirmed whether the office was investigating this matter.