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MDUSD Board Accused of Violating Brown Act

By Theresa Harrington
Tuesday, December 11th, 2012 at 1:13 am in Education, Mt. Diablo school district.

At tonight’s board meeting, district resident Wendy Lack submitted the following letter to the board, accusing Trustee Linda Mayo, former Board President Sherry Whitmarsh and former Trustee Gary Eberhart of violating the Brown Act when the three of them signed contract extensions for Superintendent Steven Lawrence, General Counsel Greg Rolen, CFO Bryan Richards, assistant superintendent for personnel Julie Braun-Martin and assistant superintendent of Student Achievement and School Support.

Here is a copy of her letter:

“HAND DELIVERED
President of the Board
MDUSD Trustees
Mt. Diablo Unified School District Board of Trustees
Mt. Diablo Unified School District
1936 Carlotta Drive
Concord, CA 94519

Re: Brown Act Violation; Demand for Board of Trustees to Cure and Correct Illegal Action

Dear Madam President:

This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act, one which may jeopardize the finality of the action taken by the Mt. Diablo Unified School District Board of Trustees.

The nature of the violation is as follows: In a meeting at an undisclosed time and unannounced to the public, three MDUSD Trustees, Linda Mayo, Gary Eberhart, and Sherry Whitmarsh, took action to sign contracts extending employment of five district administrators for a period of one year.

The action taken was not in compliance with the Brown Act because it occurred as the result of a meeting which was not permitted under the provisions of the Brown Act. There was no adequate notice to the public on a posted agenda that the matter would be discussed, and there was no finding of fact made by the
MDUSD Board of Trustees that urgent action was necessary on a matter unforeseen at the time.

In the event that it appears to you that the conduct of the MDUSD Board of Trustees specified herein did not amount to the taking of action, I call your attention to California Government Code Section 54952.6 which defines ‘action taken’ for the purpose of the Act expansively, i.e., as ‘a collective decision made
by a majority of the members of the legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.’

As you are aware, 1986 amendments to the Brown Act created specific agenda obligations for notifying the public with a ‘brief description” of each item to be discussed or acted upon and also created a legal remedy for illegally taken actions, namely the judicial invalidation of them upon proper findings of fact and conclusions of law.

Pursuant to that provision (Government Code Section 54960.1), I hereby demand that the MDUSD Board of Trustees cure and correct the illegally taken action, as follows:
1) In a properly noticed public session and placed on the agenda, the Board shall rescind approval all contract extensions;
2) In a properly noticed public session, the Board shall provide copies of the proposed language of each individual contract and provide for both public and Board discussion and questions;
3) Ensure that language for each contract is compliant with the requirements of AB1344;
4) In a properly noticed public session, the Board shall vote to approve or deny contracts as presented and with all changes in language; and
5) If approved, the Board shall sign the contracts during the next properly noticed, regularly-scheduled meeting of the MDUSD Board of Trustees.

As provided by Section 54960.1, you have 30 days from the receipt of this demand letter either to cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me with no recourse but to seek a judicial invalidation of the
challenged action pursuant to Section 54960.1, in which case I would seek the award of court costs and reasonable attorney fees pursuant to Section 54960.5.

Respectfully yours,

Wendy Lack
Mt. Diablo Unified School District Resident”

The board agreed to meet at 7 p.m. next Monday to vote on sending letters to Superintendent Steven Lawrence, General Counsel Greg Rolen, CFO Bryan Richards, assistant superintendent for personnel Julie Braun-Martin and assistant superintendent for Student Achievement and School Support Rose Lock informing them that their contracts may not be renewed after all, since the validity of the signed contracts is in question.

The board expects to discuss the merits of Lack’s allegations and potential “cures” in January.

I will try to post copies of the contracts tomorrow. The copies I received were only signed by former Board President Sherry Whitmarsh, former Trustee Gary Eberhart and Trustee Linday Mayo.

After tonight’s meeting, newly elected Board President Cheryl Hansen told me that Mayo handed her a file folder after the meeting had ended and told her the contracts were inside. At that point, Hansen said she told Mayo she would not sign them, since they were in dispute.

But, Hansen was shocked that the superintendent never gave her the contracts before. She said she didn’t even know they existed until she read about them in my blog.

She also said that Grand Jury reports have typically been discussed during closed sessions, even though they should be discussed openly. I said that I have never seen them on a closed session agenda and have never heard any action on them reported out during open session. So, if they have been discussed and approved during closed sessions, there may have been more Brown Act violations.

Hansen said she hopes her election ushers in a new era of transparency.

Do you believe the superintendent should have presented the contract extensions at a public board meeting, after the contract language was updated?

DEC. 17 UPDATE:

Trustee Cheryl Hansen has informed me that the board will not meet tonight to discuss the contracts after all. Instead, she plans to invite an outside counsel to address the board about the cure and correct process during its special meeting at 4 p.m. Friday at the Dent Center.

The board had agreed to meet at this time to review and potentially approve Measure C construction contracts, after denying the superintendent or his designee the authority to enter into these contracts without board approval in a 3-2 vote (Dennler, Mayo against).

Unfortunately, I was unable to videotape Lack’s comments, due to technical difficulties. But, here are video clips of the board’s discussion about how to respond:

Board discussion part 1: http://youtu.be/nwvMasUENvQ (As noted above, the Dec. 17 meeting discussed in this clip has been canceled. Instead, the board expects to discuss the “cure and correct” process Friday.)

Board discussion part 2: http://youtu.be/sMb9L4hTcYY

Board discussion part 3: http://youtu.be/UWjcSZb03TI

Here is a link to the new contracts posted by Trustee Brian Lawrence after the Dec. 10 meeting: http://briantlawrence.blogspot.com/

Here is a link to the April 23 agenda report, which presented the old (existing) contracts to the board, but did not present the new contracts: http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=5279&mtgId=341

Note that the board motions listed at the bottom of the agenda report do not accurately reflect all of the motions made. To get a better picture of the comments and motions, refer to the minutes: http://www.mdusd.org/boe/Documents/minutes/2012/04-23-12.pdf and to the meeting audio: http://www.mdusd.org/boe/Documents/audio/2012/April%2023%20Recording.mp3

The new contracts are nearly the same as the previous contracts, except the end dates have changed. But, since the start dates are the same, they appear to be original, even though they are actually extensions. Also, the original clause 13 in the superintendent’s contract has been completely removed in the new contract, even though the board did not discuss or approve this deletion. And, Bryan Richards’ original contract included a hand-written change to item 7 that amended the number of vacation days he was permitted to accrue from 40 to 48. The new contract changed that to 40, without board discussion or approval of that change.

There is also an unresolved question about whether these contracts meet the requirements of AB1344, which prohibit automatic salary increases above the California Consumer Price Index: http://www.fagenfriedman.com/newsflash.php?nf=318

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  • Doctor J

    @Jim#146 Taber Construction, Inc. reported that it gave $15,000 to CUES on March 19, 2009 for Measure D. http://64.166.146.18/CFD_Web_Images/2009/577/00157720090608F22.pdf

  • Doctor J

    @SB#149 Specifics please. Lets examine your statement with some factual backup for both Julie B-M and Gail Isserman. Details of length of service as principals: schools and dates. Your statement: “They were long-time school principals before becoming district-level administrators, bringing hands-on experience in handling employee hiring, supervision, evaluation, and complaints and in working with employee unions and contracts.”

  • Doctor J

    Bret Taber, President of Taber Construction, is reported to have donated $5,000 to CUES on March 19, 2009, in addition to the $15,000 of the corporation on the same date. http://64.166.146.18/CFD_Web_Images/2009/394/00139420090409F16.pdf

  • Sue Berg

    Dr J, I don’t have their resumes at my disposal. However, Julie Braun Martin was a principal in Fairfield for many years before coming to MDUSD as principal of, I believe, El Monte. When Diablo View was being built, she was appointed principal there because she had overseen the opening of a new school in Fairfield. Delta View was still under construction when the school year began. A modular “village” of classrooms was set up. Julie was credited with keeping everything running smoothly during the opening weeks and as the students and teachers later moved into the school building. She left Delta View after a couple of years when she was appointed Director of Certificated Personnel under Gail Isserman. Gail was a teacher and administrator in the Walnut Creek School District before coming to MDUSD. She was principal of, I believe, Woodside Elementary for several years, before being appointed Director of Certificated Personnel under Associate Superintendent Rick Rogers. The duties I described are ones every school principal carries out.

  • http://www.k12reboot.com Jim

    @ 151, 153 — Well, I stand corrected. My thanks to Mr. Taber and Taber Construction for supporting Measure D and fiscal stability at MDUSD. And thank you to any one of the other $200,000 in donors to the bond campaign, if any, who also supported the parcel tax.

  • Anon

    Greg Rolen and FFF are closely connected. Rolen hired FFF to do legal work for the firm. He is good friends with one of the main partners in the firm. FFF is very reputable firm and I believe will provide accurate advice. However, do not believe they are truly independent; how could they be when Rolen has sent them hundreds of thousands of work in legal fees? Check the warrants from the last few years and you will see FFF and has profited well from its connection with Rolen.

  • anon

    Then who in the heck chose FFF to do the investigation?

  • Wait a Minute

    That’s disturbing news. It is true that Rolen’s tentacles run deep. Hopefully FFF will give the board advice that is unvarnished by the fact that Rolen has sent mucho money their way in the past.

  • Anon

    Well, that is what I am trying to point out. Everyone is wanting transparency. But there is no transparency when the firm selected several years ago by Rolen to do legal work for MDUSD is the neutral outside counsel. Has anyone checked FFF’s contract with MDUSD?
    Surely the board is aware of the contract, and the amount of legal fees paid to FFF. Surely the board knows FFF also does special education legal work for MDUSD. Someone needs to ask how long Rolen has known Roy Combs, one of the lead partners at FFF; how much legal work has he sent to FFF in the last five years? And if FFF has steady work from Rolen, are they going to be willing legal advice against him? They should issue the right legal advice, whatever the result. But I have to say nobody, nobody is getting to the truth of anything here.

  • Theresa Harrington

    Closed session is going seriously overtime. I was unable to get to the first closed session, but heard that Ernie DeTrinidad and Wendy Lack spoke. DeTrinidad reportedly asked for more information about the cure and correct process and Lack read a cure and correct letter from Alicia Minyen, which I will post shortly.

  • Theresa Harrington

    Board unanimously approved Taber contracts.

  • Alicia

    Theresa, was there any discussion regarding the Taber contract?

  • Theresa Harrington

    Yes, I videotaped the comments. Also, there will be an audio recording posted. Sorry, I didn’t get a chance to do a live blog, but will try to post more tomorrow.

  • Doctor J

    @#154 I just don’t see those resumes as qualifying a person to be head of Human Resources for a 5,000 employee company.

  • Doctor J

    Any idea when we are going to get a report on the Friday night “cure and correct” information given to the Board [including reports out of closed session] and the discussions on the $17 million Taber construction ? Was hoping the videos would be posted soon, too.

  • Theresa Harrington

    Regarding Friday’s meeting, I hope to post the videos later today. I had hoped the district would have posted the audio from the meetings by now.
    In a nutshell, Hansen said the board will likely publicly discuss the cure and correct letters Jan. 14. And Pedersen gave a very detailed presentation about the lease-leaseback that persuaded the board that Taber was the best firm for the job.
    Please remember that the meeting took place on the Friday evening before Christmas. I do not get paid to work weekends and I am on vacation Monday and Wednesday, with a holiday on Christmas Day.

  • g

    Yes, Pedersen is a charmer, and a bit slick. It’s too soon to run a chronology for the Taber contracts, but let’s look at the CVCHS and MDHS Chem Buildings activities of 2012.

    June 25, 2012 Pedersen came to the board to request an OK to sign many-many “summer contracts – saying they couldn’t wait till the board’s next regular meeting Aug. 20.

    AUG 20, he came to the board, miraculously ‘ready’ for “ratification” of the Lease/Leasebacks with Meehleis Modular. Per usual, although these were “ratification” of agreed upon contracts, none of the documents presented at that time were signed, notarized OR dated. As I recall, not all of the attachments were posted for public view—although they are posted now.

    Back to the future: FEB 27, 2012 A Preliminary Service Agreement for $32,900. with Meehleis Modulars, the soon-to-be lease contractor to basically be his own “project manager.” But, Pedersen would have the board believe that knowing he had the job, and acting under time constraints to do as much work as possible during school downtime, even with already contracted architects, Meehleis simply could not be ready in four months, nor could Pedersen have any contracts ready for approval prior to July board downtime. Four months.

    How charming is he? “Working backwards”: OCT 8, 2012 Pedersen came to the board to approve a new outside legal firm exclusive to Measure C – Mr Henderson, from Orgach, Huff and Suarez. (this now makes SEVEN outside legal firms under contract at very high hourly rates, plus we were talked into letting Rolen hire a second “inside” counselor “because they thought they would save at least 50% over what personnel matters were costing by using outside council.” (think declining enrollment here)

    But wait! –Hendersen’s contract was backdated to begin JULY 1, 2012–Why? Never mind Rolen’s letter of engagement says 2011, and never mind that the board didn’t notice or mention the glaring date discrepancies.

    Hendersen was working (sans contract) for months before the board approved hiring him. Remember – I said Pedersen is a charmer. It is obvious that getting a contract for him and approval by the board was an Afterthought.

    His Engagement letter and Service Agreement are signed by Rolen and dated SEPT 25, 2012–two weeks before it was presented to the board on Oct 8… Fine.

    But Remember? … Henderson’s completed work product, very detailed Lease/Leaseback Meehleis contracts, were approved by the board WAY back on AUG 20! That is why you Backdate contracts! Slick, huh!

  • Hell Freezing Over

    TH – did Rolen ever reply to you follow up email ?

    Theresa Harrington Says:
    December 12th, 2012 at 9:12 am
    I apologize for not posting this sooner. But, last Thursday, Rolen responded to the following questions about the Grand Jury response by email:

    “In response to your to questions:
    Question:Who authorized you to file this on the Board’s behalf? The Board
    Question: Did the Board review it and approve it? Yes”

    I have sent a follow-up email asking when the board reviewed and approved the Grand Jury response and why it was not publicly noticed for board discussion.

  • Theresa Harrington

    HFO: No, Rolen never responded, so it’s still unclear when the board authorized him to submit his grand jury responses on their behalf.
    I saw Board President Cheryl Hansen tonight at the CBOC meeting and asked her to set aside some time tomorrow morning to talk to me about Rolen’s job performance.
    Regarding Cooksey, she told me that only PERB-certified union reps can leaflet on district property. Local One is PERB-certified and the Teamsters aren’t, she said.
    She also said she heard from PERB that the Teamsters have amended their complaint. I still need to verify that information.
    Also, Hansen told me that the Poway analysis she received from Trustee Linda Mayo was far from “thorough” or “definitive.” She said it was one sentence.
    Hopefully, the board will agree to release that “definitive” analysis, over-riding Rolen’s decision to withhold it, claiming attorney-client privilege.