Uploaded: Fri, Jun 1, 2012, 8:01 am
School board members take umbrage at allegations of possible Brown Act violations
Newspaper's 'unfounded accusations' damage public trust, member says
Stung by what they view as unfair allegations that they violated California's open-meeting law, Palo Alto school board members Thursday said they are vigilant in observing the law and do not believe any violation occurred.
The Board of Education members spoke in a special meeting they called in response to a May 14 letter from Palo Alto Weekly Publisher Bill Johnson stating that an April 20 confidential memo from Superintendent Kevin Skelly to board members may have led to a violation of the law, known as the Brown Act.
"I take the Brown Act very seriously ... so it's very troubling to me to think I or any of my colleagues would knowingly do anything in secret in a way not fully in compliance with the law," board member Melissa Baten Caswell said.
In a prepared statement, board member Barb Mitchell said "unfounded accusations" by a "premier local news publication" have damaged the public trust, and she called for a retraction by the Weekly.
"The six of us have received extensive training on California public-record laws ... and have in place policies and practices that far exceed Brown Act standards for conduct," Mitchell said, referring to Skelly and the five board members.
The board did not act on a recommendation from Skelly that future weekly memos from him and other administrators be posted on the district's website instead of sent only to the board.
Members said they wanted more time to consider ramifications of such a policy and also said hasty action could be misinterpreted as an acknowledgement that the memos are improper.
But Skelly said he would make his "Confidential Weekly" memos available to anyone who requests them, pending formulation of a policy.
The board will discuss a framework for developing possible policy changes at its annual retreat, scheduled for June 25 and 26, board President Camille Townsend said.
Two attorneys, one representing the school board and the other retained by the Palo Alto Weekly, presented conflicting interpretations of the Brown Act's restrictions on board members.
School board counsel Louis T. Lozano said weekly memos like Skelly's are common practice among California school-district superintendents. The memos typically are not published but are a matter of public record, available to anyone upon request, he said.
"The typical superintendent communicates quite frequently what they're doing and their thinking on various subjects," Lozano said.
"In my opinion ... there's nothing in the Brown Act that prevents a communication from a superintendent to test ideas. Every idea isn't going to see the light of day, but you want some opportunity to say, 'Are we heading in the right direction?'"
Lozano said such communication is legal as long as staff members do not communicate to board members what their board colleagues are thinking on a pending policy issue.
San Francisco media lawyer Karl Olson, retained by the Weekly, disputed Lozano's interpretation.
Memos or e-mails sent to a school board by an administrator are "always going to create potential Brown Act concerns" because they create the possibility of policy-making through serial communication, Olson said.
He cited a section of the law specifically limiting staff communication to board members outside of meetings to "(answering) questions or (providing) information regarding a matter that is within the subject matter jurisdiction of the local agency."
Johnson's May 14 letter to the board said Skelly's confidential April 20 memo outlining his thoughts and plans on high school counseling policies and his invitation to further discuss the "sensitive" issue with him create the appearance of behind-the-scenes deliberation that the Brown Act prohibits.
Thursday's special meeting drew a crowd of up to three-dozen parents -- including former school board member John Tuomy -- several of whom spoke in support of the district and its practices.
"I'm entirely convinced there is no evidence of a violation here," said Jonathan Foster, a lawyer and parent of two children in the district, who also chairs the city's Utilities Advisory Commission.
"There's an issue of a memo Skelly sent that seems from what I've heard to go in a different direction on the Gunn guidance issue from the board. It's a legitimate issue if the superintendent is not doing what the board wants -- I don't know -- but that's not a Brown Act violation."
Lozano, the district's attorney, agreed, saying "there may be a question as to whether the superintendent followed the board's direction," but that that is not a Brown Act violation.
Parent Susan Bailey identified herself as "part of a Palo Alto parent community that is very grateful to the superintendent and board." Bailey also is president of the Palo Alto High School PTA.
"When external input starts to prohibit staff and board to pursue efficiently and effectively positive change, we get concerned," Bailey said in a veiled reference to the parent-led group, We Can Do Better Palo Alto, which has tenaciously lobbied the board to implement a Paly-style guidance-counseling system at Gunn High School.
We Can Do Better co-founders Ken and Michele Dauber have made numerous requests for school documents under the Public Records Act, one of which last month uncovered the existence of Skelly's weekly confidential memos.
The Daubers in the past have called on the board to hire "new leadership," saying Skelly had failed to address the problem of academic stress in Palo Alto.
"We need to allow the staff and board to do advanced, preliminary thinking," Bailey told the board.
"While we want them to comply with the Brown Act, I strongly disagree with condemning them based on supposition and speculation.
"Change is hard, and can best take place in a positive environment, not in one of attack, ridicule and belittlement," Bailey said.
Ken and Michele Dauber also spoke. Michele Dauber, a professor at Stanford Law School, said case law suggests Skelly's invitation to board members to further discuss with him a "sensitive" matter "exceeds any reasonable threshold or definition of 'information or answering questions.'"
A suggestion by board member Dana Tom that the board consider a policy of making public all e-mails between staff and trustees was deferred to future meetings, although members acknowledged that such e-mails are public records and would be released upon request by a member of the public.
Posted by Bob,
a resident of Another Palo Alto neighborhood
on Jun 1, 2012 at 4:41 pm
> So, are we done with our discussion about whether the Brown Act
> was violated?
Not really. However, with the opinions of two paid lawyers at odds, and the next step being a date in court to see which lawyer needs remedial training, it hardly pays to continue the discussion.
> First, there are no metrics by which to evaluate the efficacy of the
> Guidance services at either Gunn or Paly
Excellent point, but one that has been made a number of times before, by other people. The problem, of course, is that with the most school districts managed under the mantle of "local control", are there any metrics that are uniformly applied across all of California school districtsother than the STAR tests?
No, there aren't. Claiming that there is a difference between the Paly and Gunn might be true, but so what? With Gunn being the 71st top-rated school in the US, and Paly the 178th ranked school, and both of the schools APIs/SATs/ACTs very close to each other, and college acceptance about the samewe're really left trying to understand why there is so much angst here.
Let's suppose that there was a significant difference in the results of the two schools, in terms of meaningful metrics, then maybe "counseling" might become an issue. But right nowthere just isn't much to go on other than the results of one badly designed opinion survey, demonstrating more the silliness of teenagers than really significant problems with the Counseling program at Gunn.
And this same argument can be applied to every department all of the schools, although the two high schools are likely to get the most focus by the community, and therefore, the staff.
One thing that seems to be missing in some of these discussions is a baseline understanding of what the "counseling/guidance" program should be .. as in what should it provide in terms of "deliverables" to the students, and the parents/families?
It would be a great thing if the PAUSD were to put together something akin to a syllabus, or counseling department offering, so that students/parents/critics could all understand exactly what the District sees its obligations are, relative to rather difficult-to-understand issues like "social/emotional" counseling, and all of the areas that Counseling Department will offer help.
School districts all over the country have been dealing with problems like broken homes, drugs, sexually abusive parents, and student pregnancy. It certainly would be a wise thing for the District to let parents know what the District will do to handle such situationsincluding referring cases to the police, or child protective services.
> Especially the part about the superintendent feeling that counseling
> is only necessary for upperclassmen and that he sees no need for
> freshmen and sophomores to receive counseling?
Some people have called for "more" counselors. Well, what does that mean in terms of head-count, and cost? Let's start with the expectation of parents about how many hours a week each student should expect to meet in a one-on-one situation with a highly-trained counselor? If people were to take the time to do the math, the costs soon become very high, and the results questionable.
> social emotional, academic and college and career counseling.
Again, just how much career counseling can a high school be expected to offer? Certainly knowing about resources available to students not intending to go to college that are offered by other sources, such as the military, or trade schools, or agriculture, would not be that difficult to facilitatebut do people really believe that high school counselors are likely to know anything meaningful about all of these aspects of life outside of high school? (Not bloody likely!)
> We are way past due for some honesty and accountability
> on counseling at Gunn, given all this.
What about the PAUSD itself? How about the rest of the package?
Posted by Michele Dauber,
a resident of Barron Park
on Jun 3, 2012 at 7:38 pm
One pice of history that might help to make sense of PTAC's willingness to try to prevent WCDB from participating in the public debate over counseling at Gunn is the recent conflict, not reported in the media, between We Can Do Better and PTAC over the staffing of the Homework Committee. The real conflict between our two groups is far more prosaic than the high-minded theme of "civility" suggests. Probably the best way to characterize it, brought out into stark relief by the "recruiting email" and the various posts above, is as a turf issue.
The Homework Advisory Committee was appointed this winter pursuant to a focused goal that was pressed forward and drafted by We Can Do Better, in order to address our core issue of academic stress. Though the Board approved the focused goal in August and the committee was set to be appointed, there was never any public announcement about it, and no word of what was happening until nearly the end of the fall semester. When WCDB inquired, we found that the committee had been appointed, and had already met once, but no applications from the public were solicited. Instead, Assoc. Superintedent Charles Young had simply asked PTAC to fill all the parent slots, which it then hand-picked, mostly with its own executive board members. No announcement went out to site PTAs, site councils, or principals looking for parent representatives as with the Math Task Force.
One problem with this is that it is a non-transparent process for membership selection. It violates the Board's own policies which require both transparency and that all voices and segments of the community be represented on advisory committees. PTAC itself is not representative of district parents, including few minorities, low income parents, single parents, and working mothers. A further issue of relevance to this discussion, as the "recruiting" email suggests, PTAC executive board members enjoy a quasi-staff relation to the district, which has become overly-cozy perhaps. Membership on it should not confer special favors, access, opportunities, or offers. Volunteering is a lovely thing to do, but it must serve as its own reward.
Significantly, given PTACs approval of the nontransparent process currently going on at Gunn, PTAC never raised transparency in parent representative selection. Secret memoranda, confidential process, and systems of exclusion may strike one as fine if you feel yourself to be an "insider" with special access and privileges but they are not consistent with democratic governance and exclude too many voices from the conversation.
We Can Do Better raised the process issue about how parent representatives were selected with the school board. As a direct result of WCDB's request, the process was rebooted, and public participation was solicited directly by the district to the parent community. Predictably given the importance of the homework issue, the district was deluged with applications from qualified applicants, new membership was selected that mostly displaced the PTAC executive board members, and the committee drafted an excellent policy. Everyone on the committee, including Ken and other WCDB members, worked well together and everyone supported the outcome and the process, thus dispelling the myth that we are incivil or can't work and play with others.
The conflict over PTACs role in the confidential selection process for the Homework Committee has obviously generated some animosity on their part. While it is being waged in the lingo of "civility" and so forth it is just an old-fashioned brass knuckle political turf battle over whether our schools will be run by insiders in smoke-filled (well, OK, cupcake filled) rooms, or whether we have an open democracy in which all comers can participate and be involved.
There is plenty of room for all to have a seat at the table and that is what we hope will happen from here out. As a result of more voices and participation and transparency, we will get better policies -- as in the case of the Homework Policy -- for the benefit of all kids in the district.
Posted by Michele Dauber,
a resident of Barron Park
on Jun 4, 2012 at 9:33 pm
If you view the video near the end, at 2:00, the Board began a discussion about Public Records requests, which were a part of the memoranda addressed by Lou Lozano at Kevin's request. Melissa Caswell at approximately 2:01 stated that she wants to "understand the burden on the district when someone asks for a public records request." At that point (~2:03), Barbara Mitchell stated that she was against the Superintendent's proposal to place his Confidential Weekly Memoranda on the web until further discussion had taken place despite the fact that they are covered by the PRA. In the interim, she stated that any member of the public [speaking here about the Weekly's announced intent to do so] should feel "comfortable without any negative cast" to request those specific memos.
She went on, however to state that prior to implementing a policy in which all of the confidential memos and other communications between staff and board members are posted to the web going forward, "I would like to learn more from [the lawyer] on how the legislature set forth both the public agency's role but also the role and responsibilities of private citizens" under the Public Records Act. She asserted that the PRA "is a two-way street. We could certainly post all of these documents and have all of the related costs and time involved but I think we should discuss this in the context of how the legislature saw the role of the trustees, of the superintendent, and of the private citizen in this."
This unfortunate passage seems to echo the Superintedent's view that the PRA requests are an undue burden on him and on staff. She seems here to be alluding to some violation of the responsibilities of the citizen [me, I think] in making Public Records Act requests, as if it is out of order or harassing to do so. The Superintendent has complained about it to us in numerous emails, and I don't doubt that he has also complained about it to the Board. I imagine that he has also complained about it to a high-ranking PTAC officials who has carried that message to several of our members on more than one occasion and stated that she agrees with it. Her message reads much like the one from "frustrated" above who states that his or her "belief is that this was done to intimidate the board and Kevin Skelley. I think they were fishing for information because they weren't able to get their agenda adopted. I personally believe that it is poor use of our school funds just because some parents didn't like the answer they got." None of that is true, none of that is appropriate, and none of that is civil. But it seems to have seeped into the views of Board member Mitchell and probably others as well.
It doesn't matter, since it is not a "two way street," and as their lawyer reminded them anyone can ask to see any public record at any time for any reason. And every request we have made or the Weekly has made has produced relevant and interesting confidential information not previously made public.
In terms of PTAC leaders arguing against transparency, we can start with the aforementioned homework committee. When we discovered that PTAC had been tasked with filling all the slots and had done so with no public notice and chiefly with the members of their own executive board, we first contacted PTAC to ask for an open process and we were told that the organization would not open the process to other parents, solicit applications, or do anything. At that point we spoke to Kevin and the Board about it, and the process was reopened.
Most recently, the Paly PTA President, Susan Bailey, presented a joint statement of a group of moms (same video at 1:22), including PTAC leaders such as Micaela Presti and incoming president Sigrid Pinsky, as well as others, which stated that they were supportive of "the ongoing work to improve things that aren't going as well," a reference to Gunn's Guidance Work Group, which was reported on by the Oracle last week and is comprised only of teachers and includes no parents or students and has already decided against advisory because "the workgroup does not feel changing to the advisory system would best serve Gunn and its culture."
The PTAC leaders' statement read by Mrs. Bailey praised the district's effort to "seek input from all stakeholders" but made no mention of the fact that the Guidance Work Group contains only staff and teachers and no other stakeholders at all. The PTAC leaders' statement furthermore supported the practice of the Weekly Confidential Memoranda not being public, stating that the signatories (including both Presti and the incoming President Pinsky) believe that the staff and Board need to do "advanced preliminary thinking" on issues. The PTAC leaders' statement concluded that they "support the experts that are teaching our children" a reference to the Gunn teachers who are opposed to advisory and have already decided not to implement it in a closed process that includes no parents or students.
In sum, the PTAC leaders expressed support for the closed process at Gunn, support for the teachers and staff running that closed process, support for a closed process to name members to the Homework Advisory Committee, support for the continuation of the Confidential Weekly Memoranda ("advanced preliminary thinking") and no criticism or dissatisfaction with the fact that parents are not included on the Guidance Work Group at Gunn.
Finally, on May 22, Micaela Presti, who is the current Executive Vice President (#2 in the hierarchy) of PTAC, stated at the Board meeting (see video at ~53) that she (a Jordan parent with no kids at Gunn now or previously) did she did not want to implement advisory at Gunn but instead to "give Gunn staff time to make *their own* informed decision on how to improve *their* guidance systems" by letting the teacher-only process from which parents are excluded to continue to play out. I think two things are clear here: PTAC sees the guidance system as belonging to the staff not the students, and PTAC is unconcerned about allowing teachers and staff to "make their own" decision about what to do to improve it rather than including parents and students in that process.
One fact mentioned by Micaela does shed light on the true nature of her objection -- otherwise hard to fathom for a Jordan parent: she worried about the "tremendous expense associated with" the implementation of TA at Gunn and asked whether it would really be worth it. She asked "Why spend that money if it's not something the Gunn staff want to have happen?"
PTAC leaders, I have an answer: Because Gunn parents and students deserve the same quality of service at Paly. Right now the services they receive are far inferior on pretty much every measure, as shown by both quantitative and qualitative data, and by numerous studies over the years. It is time to get off the dime. The data is absolutely conclusive. TA is better, and it is so much better that it is unfair not to provide it to all students equally.
There are actually many more examples like those above, some stated privately, some publicly. But the general cast is the same: PTAC leaders support the confidential memos, the closed homework committee process, and the closed teacher/staff only process for deciding the direction of reform at Gunn.
I don't agree. And I'm not incivil because I don't agree.
I just see it differently and am following a different course of trying to get some evidence and metrics against this problem. To that end, I will stack my volunteer hours up against anyone's at PTAC or anywhere else as I have spent and other members of WCDB have spent many many hours, in the hundreds for Ken alone, tabulating data on various issues including counseling and the achievement gap and producing white papers and reports that shed light on important issues facing the schools.
Posted by Ken Dauber,
a resident of Barron Park School
on Jun 5, 2012 at 9:00 am
On homework: Standing alone, you're right, the homework policy is set to be discussed and voted on at the school board meeting on Tuesday, June 12, beginning at 6:30. The agenda and the board packet should be posted on Friday at Web Link. I encourage you to attend and tell the school board your objections. In terms of process, the committee's meetings were open to all and posted on the PAUSD website. The committee's recommendations were by consensus, and parents, teachers, and administrators from elementary, middle, and high schools were represented.
In terms of the 10 minute standard, the committee looked at the research, looked at the judgement of the PTA and NEA and other districts, and settled on 10 minutes as a reasonable point that has garnered a lot of support here and elsewhere, including from researchers in the field. It's worth remembering that the board appointed the homework committee because of what it perceived as a broad concern among Palo Alto parents that the amount of homework kids are doing is excessive, and the fact that the Project Safety Net plan (specifically, section P-8) committed the district to examine homework as part of a broader response to student stress.
To all of the various critics of our work: The biggest surprise that I've had in getting involved in school policy in our community is the resistance to using data and research to have an informed conversation, particularly on areas where we need to improve -- and prime among those are social-emotional health and connectedness, counseling, and the achievement gap. Quite often I've seen district officials react with defensiveness and delay when a more appropriate and productive response would have been just to engage with the data and have a policy discussion. For example, it's been over a year since we presented data from years of student and parent surveys of counseling effectiveness to demonstrate that there is a large gap between Paly and Gunn in this area. The school board responded by asking for a comparison between Paly and Gunn, and the district directed the consultant not to compare the schools in her report. We laboriously did the work of comparison ourselves, and the school board months ago directed Gunn to look at the comparative data, look carefully at teacher advisory at Paly, and figure out how to get to comparable services. That still hasn't happened, according to the Oracle story.
A big part of the problem, I think, is that pointing out areas for improvement is often seen as an attack. I've been told by several senior district officials, including the Superintendent, that staff feel "attacked" by the data that we presented from the PAUSD survey (Web Link). I received the same feedback for presenting CST scores showing that PAUSD has much lower achievement scores for under-represented minorities and poor students than many other districts in California, which suggests that there are districts that we can learn from (for example, Web Link). PAUSD is an organization with a $160 million a year budget responsible for educating 12,000 children. That's too much money and too many kids not to be able to have honest, data-based discussions about best practices.
The second biggest surprise I've had in getting involved is how a fairly small but vocal group of parents joins the district in this defensive posture. Their contribution is almost never substantive, but instead is focused on whether parents have a right to participate in the policy-making process. This criticism is couched in the language of tactics and civility -- which are hardly ever spelled out in enough detail to actually figure out what they mean -- and in various versions of "there aren't very many of you, so why do you think anyone should listen?" (you can see various versions of both of these above, and you can see another example in Susan Bailey's statement to the Board last week).
I actually trust the school board, flawed as it is in some ways, to ultimately do the right thing. They saw the issue with the counseling data, correctly identified comparability and connectedness as the key issues, gave direction to staff on March 27 to fix it, reaffirmed that direction on May 22, and I think will underline their commitment on June 12. The rest of this is, as Wynn as put it, the messiness of democracy.
Finally, I do want to respond to this statement from @frustrated: "As for the Public Information Requests, my belief is that this was done to intimidate the board and Kevin Skelley. I think they were fishing for information because they weren't able to get their agenda adopted. I personally believe that it is poor use of our school funds just because some parents didn't like the answer they got." Actually, we made our public records act requests because it was clear that the process underway at Gunn after the March 27 board meeting did not match the board's directive. It turned out that we were right.
Beyond that, we have made multiple requests for information from Gunn and district staff for basic information about the process at Gunn. None of those requests have been answered, beyond bureaucratic non-answers. In fact, the Oracle article contains far more information than we have been able to glean from the district. Public records requests are a ridiculously expensive, wasteful, and time-consuming way to communicate with the public. In a transparent public agency, public records requests have no purpose because they produce no information beyond what is freely available. So if the board would like to get to the bottom of why the district is wasting money on retrieving, reviewing, and redacting records, I would start with looking at why simple requests for information are going unanswered, and why important discussions like the future of counseling at Gunn are going on beyond closed doors with no transparency.