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:
President of the Board
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.
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