By Allen Payton
At last week’s Antioch School Board meeting an attempt was made by Trustee Fernando Navarro to place an urgency item on the agenda, regarding the scheduling of meetings for the required public hearing and final vote for Rocketship Education’s charter school petition. Both of his attempts during the meeting were denied by Board President Diane Gibson-Gray in violation of the state’s Ralph M. Brown Act Open Meeting law.
Navarro’s efforts were blasted on social media by faculty and staff of the district, writing such things as how the meeting was difficult to watch and how they wished the meetings had been televised so the public could see how bad he was.
Yet, it was Gibson-Gray who was wrong in how she handled things. Navarro, one of the newest members of the Board and only serving in his first year in office, was actually the one who was doing things properly.
His first attempt at making the urgency item motion was during the discussion of the minutes from the previous meeting, was a bit awkward, but allowable. Gibson-Gray pointed out to him that it was not the right time for his motion, even though Trustee Alonzo Terry had seconded the motion and no other motion including one to approve the minutes had been made. Yet, it was in the minutes from the previous Board meeting on October 12th, that it was discovered a vote by the Board at that meeting on receiving the Rocketship charter petition, did not include the dates discussed for the public hearing and final vote.
So, Gibson-Gray could and should have allowed Navarro’s motion at that time, especially since it was seconded and no other motion was on the table.
A discussion, about the Rocketship charter petition meetings, was held at the October 12th meeting and it was understood that November 2nd was the date proposed by district staff for the public hearing and November 28th for the final vote, and at least verbally agreed to by Board members, including Gibson-Gray. This reporter included the dates in the article about that night’s meeting.
However, in an email response to questions sent to her following the meeting, last week, Superintendent Stephanie Anello claims the meeting dates were not included in the motion during the meeting on October 12th.
“No dates were agreed to at a previous meeting,” she wrote.
Therefore, with “the clock ticking” as Trustee Walter Ruehlig mentioned in his email response to questions of Gibson-Gray and the rest of the Board members, the matter was urgent. That’s because once the Board had received the charter petition, they had 30 days to set a public hearing and 60 days within which to schedule the final vote.
Yet, even after the vote on the minutes from the previous meeting was taken, Gibson-Gray didn’t immediately bring Navarro’s effort to make his urgency agenda item motion back to the table for discussion, as she should have. When he did attempt to make his motion, later in the meeting, she again denied him, being told by district staff that it violated the Brown Act.
Instead, the Board scheduled a special meeting for last Friday at 4:00 p.m. to discuss the matter of the Rocketship charter petition meetings for the public hearing and final vote. At that meting, the board approved the public hearing be set for Wednesday, November 9th and the final vote on December 7th.
Asked why Navarro’s urgency item couldn’t have been placed on the agenda on Wednesday night’s meeting, Anello responded, “Navarro wanted to discuss the issue tonight but the item was not agendized nor did he request that it be placed on the agenda prior to tonight’s Board Meeting. The Board is conducting the public’s business so the public must always be afforded the opportunity to provide input on the topics contained on the agenda. Since the public was unaware that Mr. Navarro wanted to discuss the item because it was not agendized, discussing it last night would have been a violation of the open meeting laws as outlined in the Ralph Brown Act.”
However, both Anello and Gibson-Gray, as were those who wrote against Navarro’s efforts on social media, were wrong.
Urgency Items Are Allowed
The fact is the Brown Act does allow for urgency items to be placed on an agenda during a meeting, as happens periodically at Antioch City Council meetings. They require a few things. First, that the matter meets the narrow definition of an “emergency situation”, with one meaning being that it arose after the meeting agenda was set. Second it requires a 2/3’s vote of members, which means four of the five members of the school board have to approve the urgency item.
According to a guide on the Brown Act, published by the League of California Cities, “The Brown Act generally prohibits any action or discussion of items not on the posted agenda. However, there are three specific situations in which a legislative body can act on an item not on the agenda:
- When a majority decides there is an “emergency situation” (as defined for emergency meetings);
- When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline; or
- When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.
The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:
First, make two determinations: 1) that there is an immediate need to take action, and 2) that the need arose after the posting of the agenda. The matter is then placed on the agenda.
Second, discuss and act on the added agenda item.”
10/31 10:44 AM UPDATE: In an email response from Anello, she wrote, “You are correct that exceptions can be made to discuss a non-agendized item, but the scope of the exception is very limited as stated below. No emergency situation existed as evidenced by the fact that the BOE met 48 hours after the meeting and the issue was resolved. The purpose of a Special Meeting (distinct from an Emergency Meeting) is to discuss or take action on an item prior to the next Regularly scheduled BOE Meeting. I think the following statement from below sums it up nicely, ‘The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.’”
10/31/16 3:10 PM UPDATE: An email was sent to Anello with the following questions: Who is the school board’s parliamentarian? Is it you? Is it the district’s attorney? Was the attorney in attendance on Wednesday night to advise President Gibson-Gray on the matter of Navarro’s urgency item? If not who made the determination that it wasn’t allowed?
Anello responded, “The Board’s President is the parliamentarian. The District’s attorney was not present at the regularly scheduled meeting.”
Yet, according to the National Association of Parliamentarians, a parliamentarian is to be someone who “is an expert in interpreting and applying the “Rules of Order” for meetings. A parliamentarian’s main function is to give advice on parliamentary procedure to the president, officers, committees, and members of a group or organization. Parliamentarians also have knowledge of the nomination and election process, which can be of great assistance in close or difficult elections.”
The Board President who chairs the meeting, can’t effectively or objectively hold both roles.
Navarro’s Matter Was an Emergency Situation
Because Fernando’s motion was about adding an item to the agenda after it was discovered that the minutes did not reflect a vote on the schedule of meetings for the Rocketship charter in the motion and action by the Board at the previous meeting, after the agenda was set and distributed, and because the matter included the need for setting the public hearing prior to the next scheduled regular board meeting, it can easily be argued that the matter was one of emergency.
Plus, since the Board subsequently held a special board meeting to discuss the matter, just two days later, it was definitely a matter of urgency, and thus another argument to support it being an emergency item for being placed on Wednesday night’s agenda.
Gibson-Gray is now serving in her eighth year on the school board, and she previously served on the City of Antioch Planning Commission. Yet, it appeared she didn’t understand the Brown Act or how to run a meeting, and prevented Navarro, as a Board member – whom she voted to appoint – from making his motion and doing what he thought was necessary to properly represent the public.
This is the second time Gibson-Gray operated outside of the bounds of proper procedure for running a school board meeting. Earlier this year, during the matter of hiring the new superintendent, she was going to allow Navarro to offer his comments after the vote. This writer had to make a point of order and explain that Robert’s Rules of Order, under which the Board operates its meetings, does not allow discussion after a vote is taken. The proper procedure is a motion is made and seconded, discussion is held and a vote is taken. Then the agenda item is completed with no more discussion allowed.
There has been a concern that there was an effort to postpone the Rocketship charter petition vote to a date after the new board members will take office, following the November 8th election. When asked if staff was attempting to make that happen, Anello simply replied, “No.”
Board Member Responds
In response to questions about Navarro’s urgency item effort, why Gibson-Gray denied it, if they were they not aware of the Brown Act allowing them, and why they held a public Board meeting during a week day, twice emailed to all of the Board members, Ruehlig, who is the Board Vice President, was the only one to respond.
“Because we had future meetings and future agenda times still ahead of us on that night’s agenda and because I was determined come hell or high water to stay with the original direction, as was recommended by Staff, and given a nod of consent by Trustees, to calendar two public meetings before the Board changed composition I thought an emergency inclusion for that meeting might not be necessary,” he wrote. “That said, there is a good argument to be made that since it was a lingering ‘confusion’ from the past meeting and since by not clearing it up we would have to call another meeting it may have been an emergency.
“Certainly the clock was ticking on a public hearing and time was already lost,” Ruehlig continued. “Emergency or not, there is no doubt in my mind that we could have spared energy and avoided the messiness of: a) all that meeting commotion; b) the irritating inconvenience of coming back yet for a meeting yet again when we thought direction was clearly set on who was to vote on the application; c) loss of citizen attendance due to short notice of a special meeting and one in the afternoon all by inserting right then and there.”
The Board members and Anello were also asked who the parliamentarian is, if it’s the school district’s attorney and if their attorney was present at last Wednesday’s meeting, and who made the determination that Navarro’s motion was not allowed. They were also asked why does it make sense to hold a meeting to discuss the matter at a time when most of the public couldn’t attend, instead of placing it on the agenda during a public meeting when the public is actually there to witness the discussion and possibly give input before the vote, and how is that keeping with the spirit of the Brown Act Open Meeting law. No responses were received as of the time of publishing of this report.
Please check back later for any updates.