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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: http://qik.com/video/51680064

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?

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

  • g

    I think the DA should stop lying to his Assistant DA’s about whether the complaint brought to him was “anonymous”.

    He should just come right out and say:

    “One of my BFF’s contacted me to complain about a blog post. That BFF told me the blog hit pretty close to home, and thought maybe this would be his BEST CHANCE EVER to get rid of a ‘problem’ on the board. He asked if I would do him a favor and put a little pressure on the ‘problem’ and see if just taking a stab in the dark would hit something!”

  • Anon

    Should he continue the Brown Act Complaint? No, unless there are Closed Session Board Minutes proving it was discussed, which I would think he already has in his possession before calling Cheryl Hansen. Should he continue to investigate Alicia’s Brown Act Complaint? Most defintely.

    He really has to follow-up on Alicia’s properly filed complaint now that it is public information he followed up on an anonymous complaint. Otherwise, if he doesn’t, it proves he is a slime politician who needs to be voted out of office.

  • g

    If Mark Peterson wants to look into what “appears to be” Brown Act issues, maybe it would behoove him to follow the Kern County DA as is referenced in this “Bakersfield.com” opinion piece:

    http://www.bakersfield.com/opinion/x243434539/DA-right-to-take-closer-look-at-closed-sessions

    I suspect the MDUSD board’s ‘evaluation’ count would break the record.

    In only five months, from just 1/9 to 6/4 our General Counsel has been on an agenda for FIVE (5) “Evaluations”, and one of those was called “special” just for him.

    In that same time period, Lawrence has been on no fewer than EIGHT agendas for “Evaluation.” The most telling might be the May 14 “special” one called, just a couple of weeks AFTER all of the contract renewals, and yet again on 5/29!

    Maybe someone should be checking into that!

  • Doctor J

    Wow, using the badge of the DA to intimidate an elected Trustee — sounds like some kind of federal civil rights violation — where is the FBI ? DA Peterson and his deputy can’t even get their story straight — anonymous or not ???

  • MDUSD Board Watcher

    Something is very wrong here. This smacks of something bigger happening underneath the surface. Is the DA involved? Why else would he feel compelled to begin an investigation?

  • Another MDUSD Mom

    Something is very wrong. Cheryl Hansen has done nothing but try to bring transparency and accountability to this Board. The bold attempts to stonewall her and now this attempt to intimidate her should concern us all.

  • Theresa Harrington

    AMM: Are you concerned about Trustee Gary Eberhart’s request to bring a new censure policy to the board for approval?

  • MDUSD Board Watcher

    Theresa,

    I implore you to continue your efforts in the DA issue. There clearly is something bigger going on here, I feel you are about to stumble onto something that will make the nightly news. Please keep pushing.

  • g

    Gary Eberhart needs to be very careful about his censure policy. Establishing the policy itself is not the problem.

    Thinking he can shut someone up with it is a false presumption.

    Under Brown Act rules, a board member cannot be penalized or censured for “expressing their personal opinion” that something “improper” or “illegal” has happened in either open OR “closed session”, and may even say with some specificity what that action was that gives them that opinion.

    The key words are “personal opinion of improper or illegal actions”.

    Rolen needs to chew on the “first amendment” and “whistle blower” laws for a minute before he decides to encourage Eberhart to bully another elected official.

  • MDUSD Board Watcher

    I think that the censure policy request is a clear indicator that Gary was the one that put the DA up to attempting to intimidate Hansen.

    The question then becomes, what is the nexus between Gary and the DA. Therein will lie the key to these latest shennanigans going on.

  • Seriously…

    Theresa, what day was Cheryl Hansen interviewed by the Deputy DA?

  • Doctor J

    @#11 Cheryl said at the board meeting on Monday June 4 she had been interviewed on the previous Monday which would have been May 28.

  • Another MDUSD Mom

    TH#7
    Absolutely. I was concerned the first time and would have spoken at the meeting if it had not been so late. There are so many more important things to do. I dare him to bring her up on censure charges/allegations. It will be easy to bring the Gary Eberhart list of infractions forward!

  • Another MDUSD Mom

    If it wasn’t clear I meant there are so many more important things for this Board to do.

  • Bloviates

    Corrupt is corrupt. If D.A. Peterson thinks the people of this District are going to stand behind him and let him continue his “intimidation” on Board Members, he is sorely mistaken. If nothing else, I would implore Cheryl Hansen to contact Peterson’s boss, the Attorney General’s office, and file a formal complaint against him for his shenanigans. Eberhart and Lawrence should both be removed from office, they’re nothing but a blight on the MDUSD

  • Seriously…

    Theresa…Dr. J’s post was made on 4/17, but do you know the date the DA received this anonymous complaint? I’m wondering how quickly the DA responded.

  • Theresa Harrington

    Seriously, I don’t know when Peterson received the complaint. When I spoke to Hansen, she realized that she was actually interviewed on Tuesday, May 29, not Monday, May 28, since Monday was the Memorial Day Holiday.

    I still have not heard back from Peterson since I left him a voicemail message a few days ago, following up a lengthy email I sent him about my own observation that the district submitted a resolution that included false and misleading recitals to the County Board of Supervisors. At that time, however, I was unaware that a revised version of the district’s resolution had replaced the resolution published with the agenda, since there was no public announcement about that.

    Minyen has detailed everything very clearly in her Brown Act complaint and two subsequent addenda. And although Peterson told me that anyone who files a complaint will be told the status if they call and inquire, Minyen said she was only told that her complaint was on a deputy DA’s desk. She was not told whether anyone was actually looking into it.

  • g

    It is interesting that the Board called a “Special” meeting on that same day, May 29, for the sole purpose of, yet another, “Superintendent Evaluation”.

  • Theresa Harrington

    I believe the board voted to table that meeting, according to Board President Sherry Whitmarsh’s report out regarding that meeting on June 4.
    Initially, I had thought she was referring to the employee discipline item, but the superintendent’s secretary told me she thought Whitmarsh was referring to the May 29 closed session, since trustees didn’t discuss employee discipline at all.

  • g

    Audio says they met, but shortly after they began, there was a “motion to table”, and a vote was taken, results 5-0-0.

    However, since a vote was taken, she should have said who made the motion, who seconded, and if there any discussion.

    A vote was taken—it must be properly documented and reported out.

  • Theresa Harrington

    The board will hold a special meeting Monday to appoint a school support administrator, principals, approve union contracts and other personnel changes, including a new vp for Oak Grove MS: http://esbpublic.mdusd.k12.ca.us/public_agendaview.aspx?mtgId=367

  • g

    Don’t we have four or five “School Support Administrator” positions? Which one moved to a new position?

  • Theresa Harrington

    I was wondering the same thing. Maybe one of them will be appointed to an elementary principal position.

  • g

    Or to YV as Principal?

  • Theresa Harrington

    But there is no high school principal appointment on the agenda, so it would be hard to say a person has already “accepted” that position. Technically, even the elementary positions can’t have been officially “accepted” until trustees approve them.

    Actually, I now recall that Superintendent Steven Lawrence has in the past transferred administrators without seeking board approval, as long as the transfer was not considered a “promotion.” So, it’s possible a SASS administrator could have “accepted” the YVHS position without board approval. Hopefully, Lawrence will announce any such reassignments soon. It was a similar planned reassignment of the Bancroft principal that sent her campus community into an uproar in protest. Maybe Lawrence is waiting until after school is over to make such announcements this time around.

  • Anon

    Looking at these latest API scores the only principal that seems to be doing the job at the high school level is……surprise….Kate McClatchy. Mt. Diablo is the only school that is in the upper 50 percentile in similar schools. I would suggest that Northgate, CP, and CHS get new leadership as they are not improving or in Northgate’s case, dropping.Good luck, CVCHS, and smooth sailing….at least you won’t have Lawrence, Eberhart, and Rolen screwing you up.

  • Anon

    Comment #17 is very weird to me. Why would a reporter report her observations to the DA? Do you claim to be an unbiased source of news? Is it possible to get unbiased reports about the school district? I guess I expect it from trolls, but it would be nice if the education reporter would hold herself to high journalistic standards. I guess that’s too much to ask.

  • g

    Anon 27–you are waaay off base. Either you are not following along with the rest of us, or your reading comprehension is sorely compromised.

    Anon 26–I don’t believe McClatchy was there yet when the students actually got those scores.

  • Anon2

    @Anon27 – Theresa’s comment was fine. Get over it. I bet Peterson is circling the wagons right now, trying to figure out how to extricate himself from the mess he got himself into.

  • Realia

    Last year McClatchy took all the credit for the API increase that occurred when Dr. LeBeouf was principal of MDHS. One reason why it increased again last year is that McClatchy sent many of the low performing students (read: English Language Learners AKA Latino students) to Olympic, where the gang population exploded from the combination of McClatchy’s transfers and the Olympic principal’s refusals to kick students out after they “completed” four or even five years of high school but still didn’t bother to earn enough credits to graduate.

  • Realia

    Anon 27: It’s ironic that you refer to trolls in your post when it’s obvious you’re a district troll. Go take care of your busing problems and upcoming indictments and stop worrying about blog posts. After all, that’s the DA’s new priority.

  • Anon

    Based on an analysis of the language used, Anon 27 is either Eberhart or Lawrence.

  • Anon

    Anon 26-Lawrence’s strategy of rotating principals thus far it is an unmitigated disaster. The API problem is not just a school here or there but it’s the majority of this Program Improvement district! Leave the principals – those who haven’t suddenly retired – and take a long hard introspective look within at Dent and SASS and the board majority . . .

  • Theresa Harrington

    Anon: When I contacted the DA, I initially asked about the Brown Act complaint referred to by Hansen.
    Then, I asked if he was following up on Minyen’s Brown Act complaint. He told me he was unaware of it and asked if I had a copy of it. I said I did not have a copy of it, but that I believed it was related to what appeared to be misleading statements in the bond resolution. He asked me to send him the documents. So, I sent him an email based on my own observation that the bond resolution included misleading statements. Lawrence himself admitted that the statements about the bond Preliminary Official Statement and Purchase Agreement being presented to the meeting were not accurate.
    I did not file a Brown Act complaint myself and I am not accusing anyone of violating the Brown Act. However, I needed to inform the DA of what was presented to the board and the public so that I could ask him for his opinion about whether or not the district has violated the Brown Act.
    He still has not responded to that question.

  • Doctor J

    @#7 Interesting that Eberhart has had his email address removed from the Board page: http://www.mdusd.org/boe/Pages/default.aspx

  • Doctor J

    Follow up to #35, Eberhart lists his phone number on the MDUSD website as: (925) 304-1546. A google also identifies that as a Paul Strange Law Firm phone number: http://www.hotfrog.com/Companies/The-Strange-Law-Firm

  • g

    Dr J @35; Yes, private e-mails are more difficult to get PIA records. But it surely would be nice to see how much business is being conducted privately.

  • MDUSD Board Watcher

    Dr. J.,

    So Gary is going into even deeper hiding. Just more evidence that something big is going on. I think the questions from you and TH are beginning to scratch the surface of the scandal.

  • Doctor J

    @TH, Are Lawrence and DA Mark Peterson still STALLING you with no responses or just a little but not full disclosure ? Another week goes by. Hope you got a plan !

  • Theresa Harrington

    I have not heard back from Lawrence or Peterson. My plan is to contact them again next week — along with the attorney general — and write a story about the Brown Act complaints for the Times.

  • Wendy Lack

    Theresa:

    As a District resident, I consider you to be a godsend. Keep up the great work.

    You’re the “eyes and ears” of the public — since most folks cannot regularly attend public meetings, let alone debrief from them with all of their neighbors.

  • Theresa Harrington

    Wendy, I am happy to provide this forum for “debriefing” and to videotape portions of meetings to allow the public to see and hear what they are missing.

  • Theresa Harrington

    Speaking of meetings, the board will hold a special meeting Monday to approve union contracts that include a one-time 3 percent payment by June 30 to reimburse employees for furlough days taken last year, administrator appointments and other personnel changes, including approving a new vice principal position for Oak Grove MS using SIG funds: http://bit.ly/NIjMLS

  • Nonnie

    TH #43
    Will you please let us know the names of the new elementary principals? I wish the district would let us know their assignments, as well.
    Thank you for keeping us updated.

  • anon

    Nonnie,
    I don’t think the district can keep up with principal assignments at this point. There appears to be a mass exodus of principals from MDUSD at the moment. Can’t say I am surprised, unfortunately.

  • Doctor J

    The Agenda for tonight’s meeting says “up to” 3 Elementary Principals to be appointed. With one appointed last month, that will make 4. I am counting 6-8 principals needed. So far the district has advertised twice for an Elem Principal “pool”. Intersting commentary from Julie Martin-Bruan and Rose Lock on the Principal selection for Ayers, and Sherry Brauer’s announcement back in April that she would be leaving. http://ayers.mdusd.org/brauer

  • Theresa Harrington

    Yes, I will. So far, the board has appointed MDHS vice principal Lianne Cismowski as an elementary principal, with her specific assignment to be announced later.

    We know that the district is searching for principals at the Shadelands special ed school, Pleasant Hill Elementary, Woodside Elementary, Delta View Elementary, Ayers Elementary and Valle Verde Elementary: http://vves-mdusd-ca.schoolloop.com/principal

  • Doctor J

    Julie Braun-Martin and Rose Lock said recently to Ayer’s parents: “We have done one round of principal interviews and found two candidates who the Board approved at the last meeting.” Wasn’t there only one candidate approved by the Board at that meeting ?

  • Doctor J

    I stand corrected. The Board also appointed Kristin Martin-Meyer from Hayward as an Elementry Principal on May 21. I’ll blame it on the heat this weekend !

  • Theresa Harrington

    Thanks for reminding us.