The school board is scheduled to meet Tuesday, May 14, in closed session to hear from its attorney, Laurie Reynolds, about expected lawsuits based on the four US Department of Education Office for Civil Rights complaints that have come to light over the last several months. See Web Link. Under the law, in order to have a closed session, there must be "significant exposure" to litigation in the four cases in the opinion of the board and the district's counsel.
An earlier attempt by Dana Tom, the school board president, to schedule a closed session meeting to discuss the OCR cases ran afoul of the open meetings provisions of the Brown Act. Tom was forced to cancel that meeting "on advice of counsel."
The new closed session announcement itself does not comply with the Brown Act, as it does not specify the specific subsection of the Act authorizing the closed meeting. The agenda item mentions the "existing litigation" exception to the open meetings requirement but the district has not yet been sued.
The board appears to be trying to hold a closed meeting pursuant to section 54956.9(b)(3)(B) of the Brown Act. This section authorizes agencies to meet in closed session, but only when there are facts that create a "significant exposure to litigation."
However, the law requires that the board publicly describe those facts, either on the agenda or orally before the closed session. The agenda does not contain those facts.
The complaints involve two cases of disability-based harassment, a claim of race-based discrimination, and another of the district's failure to follow proper procedure in handling claims for accommodations under Section 504 of the federal Rehabilitation Act. By listing these complaint numbers the district is stating that its counsel believes that each and every one of these cases which will be discussed exposes the district to a "significant" monetary liability.
Reynolds is the attorney who handled the negotiations in 2011-2012 with OCR that resulted in a rare finding of noncompliance with federal civil rights law and an extensive Resolution Agreement, not yet complied with. See Web Link.
Reynolds is also the attorney whom the Weekly concluded had misled the public and the board in a public presentation to the Board of Education in February. See Web Link.
The school board is set to follow Superintendent Skelly's recommendation to authorize payments of $140,000 over the coming year to Reynolds' firm in its next open meeting.