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MDUSD trustee calls Brown Act inquiry ‘thinly-veiled attempt to threaten and intimidate a board member’

By Theresa Harrington
Wednesday, June 13th, 2012 at 7:37 pm in Education, Mt. Diablo school district.

Mt. Diablo school district Trustee Cheryl Hansen said at the June 4 board meeting that she had been interviewed by a deputy District Attorney regarding a possible Brown Act violation, which she characterized as a “thinly-veiled attempt to threaten and intimidate a board member.”

She said the complaint was anonymous and did not come through the usual channels, which she said was highly unusual. The complaint, she said, was based on a comment by an anonymous blogger.

Hansen asked General Counsel Greg Rolen to contact District Attorney and get to the bottom of it. But, Trustee Gary Eberhart said an individual board member cannot direct the general counsel. He suggested that it be placed on a closed session agenda.

Here is a link to video of Hansen’s remarks:

Closed session agenda items, however, can only deal with personnel issues, litigation and other confidential matters.

Here is an e-mail that Hansen sent me, which further details the Brown Act inquiry:

“1. The deputy District Attorney told me that he was investigating an anonymous complaint that had not been submitted through their usual process, which is that all complaints must be submitted in writing and signed by the complainant.

2. During the interview, the only document that the deputy District Attorney produced was a copy of an April 17, 2012 post written by an anonymous blogger on your blog. He did not claim that this anonymous blogger was the complainant.

3. Since this single posting from an anonymous blogger was all the deputy District Attorney presented, I found this interview lacked substance and was a waste of time.

4. During the course of the conversation, I felt that this was simply an attempt to use the Brown Act as a tool to intimidate a board member.

Frankly, the focus of this whole issue seems to stem more from a political agenda than a legal issue which raises further questions as to why the district attorney would even be involved.”

Hansen has confirmed that blog comment resposted below is the one about which she was questioned:

“Doctor J Says:
April 17th, 2012 at 7:04 am e
@#72&73 I don’t think its strange at all and very common in the business world — and the education world — that executives ‘jump ship’ frequently to improve their status. The average tenure of a school Supt in the last 10 years is only about 2-3 years. He has 9 1/2 months left on his contract, in just over 6 1/2 months there will be an election which may swing the Board majority which could jeopardize a renewal of his contract. Trustee Hansen’s attempts to place a motion on the Agenda to postpone consideration of renewal of Lawrence’s contract until after the new board has been seated after the election has been thwarted by Eberhart and Whitmarsh, and Rolen, all ‘partners’ with Lawrence. In addition, that suburban District in Sacramento was just a few miles from Lawrence’s home in Roseville where he lived until February 2010, is a larger district [47,000 compared to MDUSD’s 33,000], and the prior Supt made more money than Lawrence. Plus Lawrence was able to wrangle support from State Supt. Torlakson ostensibly vis-a-vis Eberhart. My source is telling me that Lawrence scored high on the Meas C bond passage, but scored low on public communication, a pathetic ‘strategic plan’ he didn’t really support, failure to implement an academic turnaround plan with results [one point API gain], and ironically the issue of ‘toiletgate’ actually surfaced and raised red flags about his leadership over high schools he directly supervised. There was also concern about his performance in West Sac, and jumping from a very small district to a large district without much experience. Let’s remember that Lawrence is a relatively young by age Supt with many years left in Education circles. But he needs a few more ‘bright spot’ accomplishments on his resume to be marketable. These executive search firms do a thorough review of all potential candidates and keep it on file. All you have to do is compare Agendas, Minutes, Community Committees like PAC, Strategic Plans, etc to see the difference between quality leadership at the helm of a school district. I invite everyone to do the comparison. We ought to be demanding better performance. Oh, and when you read their Board minutes, you actually know what went on in the meeting, unlike MDUSD’s chicken scratch minutes. Has Lawrence denied being considered for the San Juan USD job ?”

In a phone interview Monday, Hansen said she did not recall this information being discussed during any closed session. Dr. J. (whose identity is not known to me) has also said in an e-mail that he or she has not sought any closed session information.

“That was what was so odd was that he pulls out this blog post,” Hansen said. “I haven’t leaked any information from a closed session. Absolutley not. What I think is happening here is trying to create smoke when there is no fire.”

Last week, DA Mark Peterson told me the complaint was not anonymous, but he declined to divulge who filed it. He said he would not characterize it as an “investigation.”

“We’re conducting an inquiry into a possible Brown Act violation,” he said. “We don’t disclose how we came about the information, but we were informed of the possible Brown Act violation, so we’re making an inquiry.”

He would not confirm whether or not the inquiry was related to a blog post comment. However, he said the inquiry was related to disclosing an item or items that occurred during a closed session.

“People are supposed to know that you’re not supposed to do that,” he said.

After hearing that the DA said the complaint was not anonymous, Hansen expressed surprise. Here’s what she said in a follow-up email:

“During my interview, I explicitly asked the deputy District Attorney ‘Who filed this complaint?’ and he specifically told me that the complaint was anonymous and not submitted in the usual manner. At least twice I expressed to him my surprise that the District Attorney’s office would even investigate an anonymous complaint since their process requires a written complaint. Mark Peterson’s statement to you that the complaint was not anonymous was the first time that I heard this since that was not what I was told during the interview when I directly asked the question.”

Peter Scheer, executive director of the First Amendment Coalition, said it is very rare for someone to actually be prosecuted for violating the Brown Act. He said it’s possible information about a superintendent’s job search could have been discussed as part of a performance evaluation and that if it were, trustees should keep it confidential.

But, it would be tricky to prove that mentioning it to someone else was a Brown Act violation, he said. First of all, he said there has to be no ambiguity about whether it was protected information under the Brown Act.

Secondly, the DA would have to be able to prove that the trustee or other person who attended the closed session intentionally leaked the information, knowing that it was wrong.

“So, if you thought it was okay to say, it is probably not something you can prosecute,” he said. “But if it was in fact something that should have been kept confidential and you leaked it under circumstances (showing) that you knew it was wrong to do it — like you told somebody it was on deep background, off the record — that would be suggestive of the idea that would support the theory that the leak was inapproproiate and potentially not permitted by the Brown Act.”

Practically speaking, however, he said it wasn’t very likely that a prosecutor would pursue it.

“To do that in this instance,” he said, “it would be the first time a DA has ever thought seriously about using this as the basis of a prosecution.”

He said it would be ironic to use a law that’s primarily designed to push information from the back rooms into the open and into public hearings — and is almost never invoked in court in a prosecution — instead to do just the reverse by clamping down in order to seal up information and to deter future leaks of information.

“I would also guess that the prospect of such prosecution is very small,” he said.

Do you think the DA should continue to investigate this Brown Act complaint?

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