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A look back at 2008 MDUSD board Brown Act accusation

By Theresa Harrington
Monday, June 11th, 2012 at 12:09 pm in Education, Mt. Diablo school district.

Now that the Mt. Diablo schools superintendent and some board members have asserted that they did not need to publicly present bond documents to the board at the April 23 meeting where trustees approved those documents, it is instructive to take a look back at another time the Brown Act was a hot topic of conversation on the board.

On Oct. 18, 2008, Trustees Gary Eberhart and Paul Strange (who is an attorney) accused the rest of the board of violating the Brown Act by failing to present backup documentation for a vote during the meeting.

Here’s my story about that meeting, from our archives:

“MT. DIABLO TRUSTEES CLAIM VIOLATION OF BROWN ACT

Published Friday, 10/24/2008
Section: News
Page Number: 4
Section Letter: A

By Theresa Harrington

CONCORD — Mt. Diablo school board members Gary Eberhart and Paul Strange accused fellow board members of violating the state’s open meeting law after a contentious Saturday morning vote about school air conditioning.

‘I abstain because I believe the board is committing a misdemeanor and violating the Brown Act, and I can’t be a part of that,’ Eberhart said. The board majority voted to spend $10.2 million to air condition four schools.

Strange also abstained, saying that the superintendent should have included an engineer’s report – which compared different air conditioning systems – in the meeting agenda packet, since trustees relied on that information for their deliberations. The Brown Act requires public agencies to provide materials distributed to board members to the public, unless the information is confidential.

Board members received the engineer’s four-page report and an attached table of estimated construction costs, along with a memo from the district’s director of maintenance and operations, in a packet of materials distributed to them by Superintendent Gary McHenry. But when the board discussed different air conditioning options Oct. 14, the agenda packet did not include the report.

At that time, Strange said that the board should delay voting until Oct. 18, so the report could be provided to the public. He and Eberhart were stunned to find that the report was not included in the Saturday packet.

Dick Nicoll, assistant superintendent for administrative services, said the report was provided to the Times and was available to anyone who requested it. However, Strange and Eberhart said the public should not have to call the district to ask if anything was left out of the packet.

Peter Scheer, executive director of the California First Amendment Coalition, agrees.

‘There’s no excuse for not including it,’ he said.

To correct the mistake, Scheer said, the board should vote again, including the report in its agenda packet. If it does not, a contractor or anyone else could sue the district, alleging the vote was invalid, he said.”

Here is a link to the official minutes of that meeting: http://www.mdusd.k12.ca.us/mdusd/board_of_education/minutes/0809/10-18-08.pdf
The Brown Act discussion is under Item 4.1.

Similarly, Alicia Minyen says she thinks the board should vote over on the April 23 bond resolution. But, since it appears the bonds may have already been sold, it may be a moot point.

Eberhart’s insistence at the April 23 meeting that it wasn’t necessary to publicly present the bond documents is in stark contrast to his view of the Brown Act in 2008.

Do you believe the district has violated the Brown Act by failing to publicly present the bond documents at its April 23 meeting?

[You can leave a response, or trackback from your own site.]

  • Doctor J

    The Bonds may have been illegally issued with the knowledge and consent of the bond issuers. How do you correct that ? Refund the bond sales, redo the bond votes, and reissue the bonds ? Whichever federal or state agency oversees this, should be taking action ! Lawrence and the board members with knowledge of this must be held accountable. This will cost someone millions.

  • Doctor J

    Hey Gary, remember this statement ? “Strange and Eberhart said the public should not have to call the district to ask if anything was left out of the packet.” My oh my how your tune has changed once you are in control of the manipulation. The documents were not even available at the meeting !

  • Theresa Harrington

    Dr. J: Nor were they sent to the Times.

    Are you suggesting the bond issue may have been illegal, since the district never publicly disclosed the bond documents?

  • Doctor J

    Who is going to tell the County Board of Education that the indemnity clause is not valid since it wasn’t ever presented to the Board for a vote ? Ouch, that would mean they would have to tell the County Board of Education that Lawrence lied to them by signing the Bond resolution which was false. So once they figure out that Lawrence lied to them and it will cost the county millions in having the bonds reissued, will they ever trust anything that Lawrence tells them again ? Sounds like the County Board of Education better get on top of this before the roof blows off with the tornado its creating. What was the hurry anyways ?

  • g

    YES, the District violated, yet again, the Brown Act by omiting information that the public has a right to both see and discuss prior to any vote being taken.

    The Board violated far worse by voting to approve an unfinished, unpublished Resolution.

    The Bond Council, and the Districts legal and financial advisors violated their fiduciary duty to advise the board and the public that they could not (per the “will of the board”) include the final $77million in the final Resolution, as it pertains to a 2015 sale, because they knew, or should have known that in 2015 that $77million would throw the taxpayers over the legal $60/100K and therefore, their promise of that 2015 sale was bogus from the start.

    Let’s take it a giant step farther. The district has in the past, and is still spending bond funds to pay very inflated costs for the projects that they undertake.

    Theresa’s article today points out one example of gross overspending that should be obvious. Over ten million dollars for four HVAC systems in 2008. Even more money in 2011-12-13 is planned for similar systems.

    My case in point: Do a Google map search for 838 Eucalyptus Ave, Newman, Ca. They built that ENTIRE school, just this year, with all modern amenities, for just about the same amount ($10million) as MDUSD is paying for four HVAC retrofits. They built that entire school for what MDUSD paid for 11 acres of unimproved land in Bay Point.

    Gross overspending and repeated use of overpaid contractors should be the concern of both the DA and the Grand Jury. The DA and Grand Jury should be asking how those same contractors seem to know just how much they should bid to get the job. Just good business sense and luck? My patootie!

    What a waste of time and taxpayer funds it is for the DA to play his school bully style intimidation games over a freaking blog post!

  • Doctor J

    Theresa, have you asked for Joe Ovick’s reaction to these turns of events ? I wonder if Steven is taking Joe’s phone calls ?

  • g

    Maybe we need to find a couple more examples. The board and the public have been duped so much it seems we hardly notice it now.

    Read the Summary, and then check out the “Attachment, Exhibit(less) document”

    http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=5054&mtgId=338

    http://esb.mdusd.k12.ca.us/attachments/10d729e6-db1d-43a8-91aa-f8372899a49a.pdf

    How’s that for a blank page?

  • g

    Oh, yeah. They slipped that one in on the “Consent Agenda”.

  • Theresa Harrington

    Dr. J: It’s not the County Office of Education or Joe Ovick who requested the indemnification clause. It was the County Treasurer-Tax Collector’s office, since the bond proceeds are deposited with the county treasurer. I will call him to get his reaction, along with the county administrator, who recommended that the County Board of Supervisors authorize MDUSD’s bond sale, in part based on the board’s misleading bond resolution.

  • Doctor J

    It might be interesting to get from Ovick a copy of what was actually filed with him under Sec. 11 of the Resolution which says a certified copy of the resolution and “distribution instructions”.

  • Theresa Harrington

    That is a good idea, since the copy attached to the Board of Supervisors agenda does not show any indication of certification. I also don’t see any distribution instructions.

    Furthermore, it looks like the Lawrence also falsely backdated the resolution, which states:

    “The foregoing resolution was, on the 23rd day of April, 2012, adopted by the Board of Education of the Mt. Diablo Unified School District at a regular meeting by the following vote…”

    In fact, that was not the resolution that was approved Apri 23. It is an amended resolution drafted after the board meeting that was never brought back to the board for approval.

  • Doctor J

    Ovick may have been given an earlier version of a signed resolution. :-)

  • MDUSD Board Watcher

    Doesn’t this rise to a level that suggests the DA would “inquire” about? Instead of “inquiring” about an anonymous post on a blog.

    I think Mark Peterson needs to step up here and do the right thing.

  • Just curious

    Don’t you have anything else to do?

  • Theresa Harrington

    I just spoke to Peter Scheer of the First Amendment Coalition. He said it would be highly unlikely that a Brown Act inquiry such as the one mentioned by Hansen would ever be prosecuted.

    Based on that, one could ask: Doesn’t the DA’s office have anything else to do, such as looking into the misleading bond resolution presented to the county by the district?

  • Doctor J

    Sounds like you are getting the stall once again from both Lawrence and Peterson. I guess Lawrence is waiting for you to show up at his office to look at the documents that he either has or is still cooking.

  • Theresa Harrington

    I am definitely getting the stall. Lawrence hasn’t even produced the revised resolution on which the board apparently voted, without any public announcement (and which was later removed from the district’s website).

    Minyen has sent copies of her Brown Act complaints to the County Treasurer and the Attorney General. Perhaps they will feel a stronger sense of urgency regarding these issues than Lawrence and Peterson. Minyen said the bond documents mentioned that something was closing on June 20, but she couldn’t tell if it was too late to block the bond sale.

    Her April 25 Brown Act complaint submitted to the DA began with this sentence: “Time is of the essence, and I hope you can act quickly since at least $150 million in general obligation bonds is at state for which the taxpayer is on the hook.”

    Since then, she has submitted two more additions to the complaint, now that she knows that the district plans to pay the cost of issuance with its bond premium.

  • g

    Did Alicia send a “Cure and Correct Demand Letter” to Lawrence and the Board giving them 30 days to “do so or else”?

  • g

    Just checked EMMA and the latest Issue (E) seems to have been deleted.

  • g

    Sorry, now it is back. I was wrong.

  • MDUSD Board Watcher

    This whole thing is absurd. Just like with all scandals these small little inconsistencies are probably an indicator that some much bigger illegal acts are ocurring. I would be surprised if some of our board members are being “compensated” by bond sales indirectly based on some of the asinine decisions they have been making along with the secrecy of every move.

  • Wait a Minute

    It would behoove CCC DA Mark Petersen To recuse himself and his office from these matters as if he has a conflict of interest because of his endorsement and support for Measure C.

    Furthermore, if the DA is personal friends with ANYONE involved in the MDUSD’s bond scandal then it would further behoove him to refer the matter to the State AG.

  • Theresa Harrington

    The matter already has been brought to the state AG’s attention by Minyen. When I call to follow up, I will mention that Peterson endorsed Measure C and see if they think that represents a conflict of interest.

    g: Minyen said she did not send a cure demand letter, but she pointed out that instead public comment was given by a parent to amend the resolution. She commented publicly on parts of the resolution she was concerned about, but the board chose to disregard those comments. The DA was notified before the resolution went to the county and could have corrected the the situation without causing a delay, she said, if the MDUSD board had chosen to hold a special meeting to approve the amended resolution, with the accompanying bond documents presented publicly.

    Minyen said: “No one knows if the DA intentionally chose not to take action. My intent is only to have the resolution corrected, and nothing more. I believe it is too late, and the situation is so complicated where I’m not qualified to recommend how the district should correct the matter. At a minimum, this situation can be a lesson learned and the county may want to verify the accuracy of the district’s resolutions going forward.”

  • Doctor J

    Sounds like Alicia is talking to the State AG’s “civil division” — DA Peterson apparently is having his “criminal division” handle the Brown Act stuff and ignoring Theresa. I think this is a classic case where the “criminal divison” and “civil division” do not talk to each other AND the State AG and local DA do not talk to each other. Put that on a 4 way matrix and no one is talking to each other.

  • MDUSD Board Watcher

    Hmmm…. I bet we see some major fireworks and maybe even some indictments before elections. Start popping the popcorn now.

  • Theresa Harrington

    I have received the bond reso adopted by the board, along with the Preliminary Official Statement, which presumably was approved without being presented to the public.
    The reso does include the indemnification clause, but the POS does not include the information about the bond premium being used to pay the cost of issuance. Instead, there are blank spaces with no information filled in regarding how the proceeds will be divided up.
    Lawrence did not send the Purchase Agreement, which was also ostensibly provided to the board via its clerk, and approved April 23. I have requested that document, which should have been publicly presented during the meeting, according to the resolution.

  • Doctor J

    @TH Its called a STALL. Time for the Legal Beagles.

  • Theresa Harrington

    It’s possible that the Purchase Agreement was blank, since the “Contract of Purchase” approved by the County Board of Supervisors was blank (Exhibit B on the last page): http://64.166.146.155/docs/2012/BOS/20120515_205/11101_Mt%20%20Diablo%202012%20G%20O%20%20Bonds%20-%20County%20ResoV%203.pdf

    Peter Scheer said he was surprised the County Supervisors didn’t ask to see the backup documents, since $150 million is a lot of money.

    But, the county reso explicitly states in Section 41 that the Board of Sups and the County did not prepare or review the official statement and take no responsibility for its contents or distribution. However it states that the county treasurer is authorized and directed to prepare the portion of the statement related to the county’s investment policy, current portfolio holdings and valuations procedures and to certify in writing prior to the bond issuance that no part of that is untrue or misleading.

  • g

    So, Mayo doesn’t read blogs, and blindly trusts her staff’s recommendations, so she can claim she had no idea that she was duped.

    Mayo instructed Dennler to not read blogs, so she also has no idea (not to mention a clue).

    Gary has too much Ego to be embarrassed by having his dirty laundry hung out in public. Besides he’ll do just about anything for the extra money.

    Whitmarsh doesn’t appear to have a single synapse working (now that Gary took back the one he had loaned her).

    And they all trust Lawrence and Rolen to think for them and make decisions (spelled DEALS) for them!

    Priceless!

  • g

    Theresa, just on the link of the partial pages you gave, “Contract of Purchase” is mentioned 17 times, plus the title page of the blank Contract itself.

    Section 5 has a particularly good clause: “The form of Contract of Purchase attached hereto as Exhibit B is hereby approved. The
    Treasurer, or his deputy, and such other officers of the County as may be authorized by the County Board are, and each of them acting alone is, authorized and directed to execute and deliver the Contract of Purchase for and in the name and on behalf of the County,…”

    But I guess no one (even at the County Level) thinks it’s very important!

  • Theresa Harrington

    Yes, this is the point that Scheer made. Perhaps Minyen is correct that this can be a learning opportunity for both the district and the county.
    Why approve blank documents or documents you haven’t even seen? It appears to thwart public trust by giving the bond counsel, underwriters and district officials carte blanche to do whatever they want.

  • g

    Learning Opportunity? When the bully gets by with his actions, over and over, all he learns is how to get by with it even better next time.

    There HAS to be some penalty involved for wrong doing, or there is no corrective lesson learned.

  • Theresa Harrington

    It remains to be seen whether or not there has been any wrongdoing. The DA, attorney general and federal officials may be able to shed light on that.

    But, the board members are ultimately accountable for their decisions and their willingness to approve documents sight unseen. The superintendent and general counsel are also accountable, if trustees are willing to hold them accountable, for their recommendations to the board.

    I’m not sure if any of this can be characterized as “bullying.” However, I will be posting a story this week about the anti-bullying policy at Oak Grove MS and whether or not it is effective.

  • http://www.k12reboot.com Jim

    Meanwhile, amidst the district’s struggles with transparency and constructive communication, they today launched the “MDUSD ‘Good News’ Letter”, from the “Good News Team” at Party — I mean, district — headquarters. Written “in collaboration with parent leaders” it is intended to be “a monthly newsletter to strengthen communication and to share the many positive stories and news from across the district”.

    The inaugural edition of this odd little e-blast features each Principal describing “the spirit of their school”. If you can get past the broken links and mistakes in grammar and usage typical of so much communication from MDUSD, you will find such earth-shaking copy as “Valley View Middle School is a place where change, diversity, and leadership are embraced on multiple levels.” or “The teachers at Hidden Valley Elementary don’t teach for the income, they teach for the outcome.” or “Monte Gardens is a school with high academic and behavior standards, where parents and teachers work together and children love to learn!” or “At Pine Hollow Middle, Education is not the filling of a pail, but the lighting of a fire.”

    In other words, if you liked reading Pravda back in the 80s, or the daily news organ of the Central Committee of the Communist Party of the People’s Republic of China today, then you are in for a treat. Who cares what happens to $350 million in bond money? I’m just looking forward to finding each monthly issue of the “Good News Letter” in my Inbox.

    P.S.: Since this is an e-newsletter, they aren’t killing trees, but is it possible to waste electrons? Or are they just wasting the time of Stephanie Roberts, the editor of this propaganda sheet and the supposed “Director of Development” of our cash-strapped district?

  • Seriously…

    @31 Theresa – Well said! If the documents are blank, why bother approving them. If the documents are blank, why even mention them in the Resolution? Is there a requirement that the Preliminary Official Statement and Purchase Agreement be reviewed and approved? One would hope that our Board and County would perform some kind of due diligence and oversight separate from their advisers.

  • Seriously…

    The Preliminary Official Statement (POS) statements by defintion, are not supposed to be blank, and must include enough information to draw interests from purchasers. See an example of a POS:
    http://www.dallascityhall.com/convention_center/pdfs/PreliminaryOfficialStatement-dcch.pdf

  • Doctor J

    I guess its time to ask everyone of the Trustees if they received, read, and approved the documents. If they choose not to respond, that should be taken as a NO.

  • Anon

    Jim,
    Let’s suspend our cynicism for a moment. Let’s welcome this “Good News” letter as the district’s first attempt for honest communication with the community. Let’s applaud the Parent Leaders on the Good News Team who are serving as reporters and encourage them to break their anonymity and take credit for their publication.

    We might question whether the district has a master email list to distribute to every family – in which case that email list may be used to send meeting notices and other important district news. We might question the timing of sending this on Tuesday after one high school held graduation on Monday – and question what are those seniors doing for 3 days this week. We might question the photos of school buses, in a district that’s eliminating busing, and in a year that was marked by busing failures. We might question that the photos are not MDUSD buses or students.

    But let’s withhold these questions as we celebrate this first small step toward more frequent and honest Good News from the district.

  • Doctor J

    @#38 Another “newsletter” promise — just a broken record and this one is pure hype, with fluff taken out of the schools “website” sales pitch — no facts to back up the flowery statements. What happened to Lawrence’s repeated promises to put out a “twice a month” Supt newsletter ? He even had the board adopt the promise last year in the infamous LEA Plan Addendum required because MDUSD sunk to a “Program Improvement” District. This time Lawrence will blame it on the parents when the newsletter can’t keep up with the promsied publication schedule. http://www.mdusd.org/Departments/sass/Documents/leap/addendum06-28-11.pdf

  • g

    Anon: I humbly pass my passive-aggressive torch to you. I’m no longer the best!

  • Doctor J

    Addendum to #39 — Here is the updated LEA Addendum approved by the Board on Feb 27, 2012. Here is what Lawrence promised to occur from Jan 2011-June 2014 that has not been started: “District will develop and implement a process whereby the Superintendent will report regularly to the Board (at least twice yearly) on the progress of implementation of the LEA Addendum
    activities, including implementation monitoring trend data, student achievement data, and data on progress to close the achievement and opportunity gaps within the district.” When is Lawrence going to get around to it ?
    http://esb.mdusd.k12.ca.us/attachments/55194054-ded3-4673-8848-64f448b4c38e.pdf

  • Seriously…

    @Jim – While I enjoyed your post, I agree with Anon that it’s a good small step to open communication, provided it’s true. Maybe this will motivate school staff to do extraordinarly good things for our students on a regular basis…otherwise they’ll be no good news to report.

  • Doctor J

    @Seriously#42 Of all of the things that were written, what actual “news” [fact not fluff] was presented ? It isn’t even accessible this morning on the front page of the District website.

  • Doctor J

    Here are the limited numbers of parents involved: guess what ? Julie is one of them. http://www.mdusd.org/superintendent/Documents/good-news/good-news-team.pdf

  • Anon

    What makes Julie a Parent Leader? What positions has she held in the district?

  • Seriously…

    Dr. J – Well, let’s see…there was a successful canned food drive and $2k fund raiser at Strandwood.

  • Doctor J

    And Seriously don’t forget about the invitation to the June 5 party to celebrate Highlands E. being named a distinguished school ["will take place on June 5"] — oh, that was last week. Sorry we missed it with the “Good News” published on June 12 — just a week late. Theresa, maybe one of your editors could volunteer to “edit” ?

  • MDUSD Board Watcher

    Hmm…. Does Julie Lawrence get paid to take part in this?

  • Theresa Harrington

    It appears that the parents are volunteers.
    I know that Julie Lawrence helped to coordinate Northgate High’s participation in the UMDAF 5k run (and coincidentally the UMDAF president endorsed Lawrence’s contract renewal). So, it’s likely she may be considered a “parent leader” by Bronco Boosters and UMDAF members.
    When she introduced herself at one parent gathering, she didn’t mention that she was also the superintendent’s wife.

  • Theresa Harrington

    Seriously, I also agree that it is a good step toward improving communication in the district. It also gives everyone a better idea of how all the feeder patterns fit together. When the API scores are released, parents will be able to see at a glance which elementary schools feed into which middle schools, and which middle schools feed into which high schools.

    This will also provide the district with an opportunity to be more accountable to the community, provided the information is true. For example, the Sun Terrace principal reports: “Our students are shining suns who are increasing academics and attendance as well as displaying good citizenship using ‘Talk Solutions’ to demonstrate kindness and resolve conflict.” If this is true, the teachers, parents and principal might also consider using “Talk Solutions” to resolve conflicts.

    And there is an email address listed, to which parents could send questions, such as: Why was the IHTA kitchen dropped from the MDHS “priorities” list? Unfortunately, however, no MDHS feeder pattern parent has been identified.

    Perhaps the district could also expand its information-sharing by distributing the list of questions and answers from the May 29 special ed meeting. So far, that information has not been posted at http://mtdiablosped.blogspot.com, as promised.