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On Deadline: For Palo Alto school officials, transparency is as transparency does

Original post made by Jay Thorwaldson, editor emeritus, on Jun 7, 2012

Palo Alto school officials right now are wrestling with the question of what constitutes "transparency" -- including whether a series of private memos between the Superintendent Kevin Skelly and school board members violate the state's open-meeting law, the Ralph M. Brown Act.

The basic policy question will come up this month at a board planning retreat set for Monday and Tuesday, June 25 and 26. Any action would come later at a regular board meeting.

Skelly and board members, at a special meeting May 31, reacted vehemently to allegations in mid-May by the Palo Alto Weekly that Skelly's weekly confidential memos to board members violate the law.

The board comments followed a lengthy briefing on Brown Act details by Louis Lozano, whose Lozano Smith law firm represents more than a third of California school districts plus other public agencies. Lozano said he saw no violation in Skelly's memos because of a provision to the Government Code, added in 2008, that explicitly allows direct communications between administrators and individual governing-board members so long as views of other board members are not shared.

A second presentation was made by San Francisco-based attorney Karl Olson, representing the Weekly and Publisher Bill Johnson -- whose May 14 letter to the district triggered the meeting. Olson disagreed with Lozano on potential Brown Act violations. Olson read the broadly worded preamble to the act, and cited legal cases and an opinion (non-binding) by the state attorney general.

Both attorneys agreed there is little or no case law -- meaning court or appellate-court rulings -- relating to the 2008 addition. Getting such a ruling is a time- and money-consuming effort -- which throws the issue, for now, into the laps of school board members as a policy question. With an overlay of emotion.

Skelly, in a lengthy written statement issued May 22, said he has sent out weekly memos during the entire five years he has been superintendent. But he denied any intent to violate the Brown Act and said he does not believe there has been a violation.

"One of my most important values as a senior leader in the District is transparency and openness," Skelly wrote. "For this reason and the expectations of our community, it is important that I address this issue directly.

"First, I want the community to know that neither I nor the Board would ever intentionally violate the Brown Act. It is my belief, and the belief of our legal counsel, that my weekly update to the Board members in fact does NOT violate the Brown Act."

Board members echoed that.

Barb Mitchell set the tone, expressing regard for the Weekly but saying that it "published incomplete information on state law, accused people of breaking the law and implied that public documents that have not been requested by citizens are examples of secret communications and district efforts to exclude the public.

"These unfounded accusations misrepresent the school district and promote reckless misinformation and gossip."

Dana Tom said he stands behind everything Mitchell said. "And of course I had no idea of what she was going to say," he quipped. He said all board members "had a number of emotions" relating to the accusations, that he feels there was no violation of the law "in any way, shape or form," and, "All I can say I'm doing the best I can." He said he would favor posting online "all our emails and communications" after review for legitimate confidentiality.

Melissa Baten-Caswell said the allegations were "very troubling" to her because she takes laws seriously. "I fully support what my colleagues have said, not knowing what they were going to say." She said she supports putting the memos online, but is concerned about the burden on staff of putting up all emails.

Barbara Klausner continued the quip: "I had no idea what my colleagues would say today," she began. She appreciated the comments "about the substance and the emotional content of what we've been through in the last few weeks. It is difficult. I think it is the first time I've seen any of us get particularly emotional, but I am getting emotional.

"I usually don't get emotional through these things. But it is difficult when you have bent over backwards to try to comply with the Brown Act." She said she has felt the constraints of the act: "How many of you have been public officials and have had to address and solve very complicated public issues and have one or two hands or one or two feet tied behind your back as you have tried to do it?"

Noting that the board only meets twice a month and sometimes until 2 a.m., she said communication on complicated issues becomes hard. "We're not trying to hide anything, but there's only so much time to do the district's business."

She asked if posting all emails would that itself violate the Brown Act prohibition on serial meetings or discourse. Lozano said one thing on which he and Olson agree is that one-way communications from superintendent to board comply with the act but that return messages might be a violation. "It's a web," he said of the law's complexity. He advised the district not to post email replies from board members to the superintendent.

Klausner said she also is concerned that posting the memos online would make it appear the district is "taking a corrective action, and we have done nothing wrong."

The pivotal April 20 memo (now available online) is entitled "Confidential Weekly." Its first three paragraphs are entirely blacked out -- likely signifying a legitimately confidential subject.

Yet even though Skelly offered to post all his memos online, board members said he should hold off until the board can discuss (but not act on) a policy at its board planning and goal-setting retreat coming up Monday and Tuesday, June 25-26. Lozano said he knows of no other district that posts such communications.

Skelly said anyone could request the memos via the state's Public Records Act -- and is already posting those so far requested on the district's website, www.pausd.org. Yet unless one knows of their existence -- some were designated "confidential," which commonly means "don't tell anyone about these" -- how could anyone know to make a request?

There's also a twist in the April 20 memo, as district critic Michele Dauber noted: Skelly invited board members to contact him directly to discuss the "sensitive issue" of the type and quality of counseling available at Gunn High School, which has been subject of criticism.

This twist may be significant. Even if Skelly were to avoid sharing what other board members told him, the two-way exchanges could constitute a polling of the board -- a majority opinion that Skelly could then act upon as administrator without public knowledge or process.

Is that not conducting public business in private? It makes a blanket denial of any wrongdoing problematic, even some defenders of the one-way memos agree. But whether it violates state law is an open question, in the absence of court rulings.

So, because of the delay, I will be one who personally requests receiving the memos under the Public Records Act. As these memos are regular communications, I will submit a single request to cover all memos as they are sent out -- each memo would automatically trigger a new request, in other words. Is that possible? Stay tuned.

Yet the core question remains one of transparency, to which Skelly and school board members repeatedly professed a commitment on May 31.

The board retreat this month will test the board's commitment to the deeper truth that underlies both the complexities of the law and the emotions raised:

Transparency is as transparency does.

Former Weekly Editor Jay Thorwaldson can be emailed at jthorwaldson@paweekly.com with a copy to jaythor@well.com.

Comments (9)

 +   Like this comment
Posted by Wayne Martin
a resident of Fairmeadow
on Jun 7, 2012 at 7:26 pm

> He [Skelly] read the broadly worded preamble to the act, and
> cited legal cases and an opinion (non-binding) by the
> state attorney general.

> "One of my most important values as a senior leader in the
> District is transparency and openness," Skelly wrote

So why are we discussing a five-year backlog of "confidential" memos? And what else is not on the table, too? [Remember, we have to know what we don't know here--in order to request District records/communications.]

> Barb Mitchell set the tone, expressing regard for the Weekly
> but saying that it "published incomplete information on state
> law, accused people of breaking the law and implied that public
> documents that have not been
> requested by citizens are examples of secret communications and
> district efforts to exclude the public.

How is this situation NOT an example of how the District has gone about excluding the public by creating a level of security that was intended to keep people from knowing that certain public communication existed?

> [Melissa Baten-Caswell] said she supports putting the memos online,
> but is concerned about the burden on staff of putting up all emails.

It is difficult to believe that with a highly qualified Director of Information Technology on Staff that such a person would not be able to create the necessary scripts/programs that could take emails from the email server, strip any "confidential" header information, and create the necessary web-pages, with little/no staff involvement—other than to insure that the latest emails have been posted to the web-site correctly.

> Klausner said she also is concerned that posting the memos
> online would make it appear the district is "taking a corrective
> action, and we have done nothing wrong."

It would appear that the District is taking corrective action to whom? Perhaps it's time to dial up Mr. Dictionary and look up the phrase: "new policy".

> Yet even though Skelly offered to post all his memos online,
> board members said he should hold off until the board can
> discuss (but not act on) a policy at its board planning and
> goal-setting retreat coming up Monday and Tuesday,
> June 25-26. Lozano said he knows of no other district that
> posts such communications.

Time to dial up Mr. Dictionary again, and this time familiarize ourselves with the word: "first".

> The board retreat this month will test the board's commitment
> to the deeper truth that underlies both the complexities of the
> law and the emotions raised:

Will be interesting to see if this retreat is videoed. The City of Palo Alto has not videoed their retreats in the past—requiring people to truck down to whatever location they happen to be having the Retreat to hear with the Council has to say.

> Transparency is as transparency does.

Indeed.

Now-on the other side of the Ledger—I think that it's time to have a long/hard look at the Brown Act. The Internet offers many issues that need to be considered, and the complexity of doing government business seems overly complicated with the constraints of the current laws.
Politicians can not be trusted to do the right thing, most of the time. So we need some sorts of constraints But the current Brown Act makes life very difficult for the current school/local governance model.


 +   Like this comment
Posted by Question
a resident of Adobe-Meadows
on Jun 8, 2012 at 7:25 am

Jay, why do you feel it is important for you to review the memo the super sends to the board members each week, which I understand is a common practice in other districts? What do you hope to accomplish, aside from getting more eyeballs to look at your site? Will that make the school district stronger in some way? Won't it simply cause the Super and Board to resort to in-person meetings (1 or 2 at a time) to communicate (even one-way) on anything that they don't want to see in the Weekly Online site the next day? Or just not communicate at all and make decisions less effectively or even more slowly than they do now?

It is often said that democracy is the least efficient form of government and thank goodness; but this may be taking things too far.


 +   Like this comment
Posted by svatoid
a resident of Midtown
on Jun 8, 2012 at 8:58 am

" But whether it violates state law is an open question, in the absence of court rulings."

So at the end of Jay's long-winded tome, we get to the gist of the matter--the whole thing may not be a violation of state law. That should have been in the first sentence.
So why is the weekly beating a dead horse????


 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Jun 8, 2012 at 9:11 am

Peter Carpenter is a registered user.

There is no 'dead horse' - this is a race horse heading for a victory over the public.

There is NO question that the superintendent's openly admitted "polling them on their views" is a violation of the Brown Act.

Here is what the California League of Cities Brown Act Handbook states:

"The serial meeting may occur by either a "daisy-chain" or a "hub-and-spoke"
sequence. In the daisy-chain scenario Member A contacts Member B, Member B
contacts Member C, Member C contacts Member D and so on, until a quorum and collective concurrence has been established. The hub-and-spoke process involves, for example, a staff member (the hub) communicating with members of a legislative body (the spokes) one-by-one for a decision on a proposed action or a chief executive officer briefing a majority of redevelopment agency members prior to a formal meeting and, in the process, information about the members' respective views is revealed. Each of these scenarios violates the Brown Act."

Here is the case law:

Stockton Newspaper Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95

"At issue here is whether a series of nonpublic telephone conversations, each between a member of the governing body of a local agency and its attorney, for the commonly agreed purpose of obtaining a collective commitment or promise by a majority of that body concerning public business, constitutes a "meeting" within the purview of the act. We conclude that such a series of telephone contacts does constitute a meeting within the act and, construed liberally as we are enjoined to do (Code Civ.Proc., s 452), that the complaint sufficiently alleges the occurrence of such a meeting and therefore, a violation of the act. Accordingly the judgment in defendants' favor must be reversed."

How can a school superintendent and a school board not read and understand plain english?


 +   Like this comment
Posted by svatoid
a resident of Midtown
on Jun 8, 2012 at 9:27 am

"There is no 'dead horse' - this is a race horse heading for a victory over the public."

Really???
we have this from Jay's tome:
"Skelly and board members, at a special meeting May 31, reacted vehemently to allegations in mid-May by the Palo Alto Weekly that Skelly's weekly confidential memos to board members violate the law."

So this is clearly a weekly-driven issue.

Then we have this from Jay's tome:
"Lozano said he saw no violation in Skelly's memos because of a provision to the Government Code, added in 2008, that explicitly allows direct communications between administrators and individual governing-board members so long as views of other board members are not shared."

So where is the victory?? We have a legal opinion that there was no violation of the law and even jay states "But whether it violates state law is an open question, in the absence of court rulings.".


"In the daisy-chain scenario Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on,"

In this case, didn;t Skelley contact each board member himself--so there was no A to B, B to C etc. It was a to B, A to C etc.


I agree with Barb Mitchell's comments;
"Barb Mitchell set the tone, expressing regard for the Weekly but saying that it "published incomplete information on state law, accused people of breaking the law and implied that public documents that have not been requested by citizens"

That sounds like the weekly and the way they operate--try to create a controversy to generate interest--interest equals ad revenue and takes the public eye away from problems with the weekly.
Sounds like bisoness as usual, indeed.

Anyway, Peter, why the concern, you are in another county?


 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Jun 8, 2012 at 9:34 am

Peter Carpenter is a registered user.

Svatoid - see the newest information that the continuing inquiry has uncovered:

"Palo Alto school-district superintendent Kevin Skelly has made a practice of communicating with school board members via email about district issues, sometimes polling them on their views and communicating his policy preferences, according to dozens of emails obtained by the Palo Alto Weekly through a Public Records Act request."


Sometimes polling them on their views and communicating his policy preferences is a clear violation of the Brown Act.

"Anyway, Peter, why the concern, you are in another county?"
Because the public's continuing loss of confidence in their public officials is constantly eroded by this kind of illegal behavior - and that loss of confidence has no geographical barrier.

Svatoid - why can't you read and understand the law.


 +   Like this comment
Posted by svatoid
a resident of Midtown
on Jun 8, 2012 at 9:47 am

"Svatoid - see the newest information that the continuing inquiry has uncovered:"
Just because it is in the weekly does not make it true or right. We shall wait and see.

"Svatoid - why can't you read and understand the law."

Once again, Peter as stated in jay's tome, one lawyer says there is no violation of the law and jay himself states as much. so clearly there is a question about this law and how it is understood. I realize that the "peter" way is the only interpretation, hence your curt response to me.
And peter why can't you understand that this issue is not settled yet.


 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Jun 8, 2012 at 10:55 am

Peter Carpenter is a registered user.

"Board of Education members responded only to Skelly with their views, avoiding a clear violation of the Brown Act, the state open-meetings law, which prohibits a majority of board members from discussing or deliberating outside a public meeting. "

That refers to the daisy chain serial meeting prohibition. What occurred was a clear spoke and wheel serial meeting violation when the superintendent polled the school board members on their views.


 +   Like this comment
Posted by Wayne Martin
a resident of Fairmeadow
on Jun 9, 2012 at 7:43 am

This issue of "findability" is one that is not solved by Google alone. I would suggest that what is needed is a complete catalog/inventory of documents on the City's/School District's web-site. Conceptually, it would be along the lines of a well-designed table of contents/index that we are accustomed to using in high-end text/reference books.

For instance, both the School District BoT and the City Council issue resolutions of one sort or another. If you try to google "resolution", it's not likely that the search results will produce a list of resolutions that are presented in any kind of usable order. Nor are the results presented in a way that allows interested parties to order the search results, either. Some well-designed web-sites do have data sets that can be downloaded in multiple formats, although these generally are not the results of a dynamic search. So, having a data set that includes all of the resolutions, by date, by title, and a link to the resolution, available in a text, or .xls, format (at a minimum), would be a good start to adding what one might call web-based "finding aids" to the City and PAUSD web-sites.

This idea advanced by Nancy Pelosi ("You have to pass the Bill to find out what's in it") demonstrates just how off-center the political class has become in this country. Simple technological solutions would go a long way to "leveling the playing field" for the rest of us.

And there is really no reason that staff need be involved in the daily managing of the site document inventory. Programs/scripts/web-page code generation can do all of this work, as well as testing to insure that the documents and the links in the web-page code are synchronized.

But all of this needs top-down direction—commonly called "management".


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