Palo Alto: Discussion of federal-information request questioned

Outside of public meeting, Palo Alto superintendent and school board members may have created 'serial meeting'

Palo Alto schools Superintendent Max McGee admitted Tuesday night to a possible "inadvertent" violation of the Brown Act, a state law that governs local agencies' public meetings.

The act prohibits a majority of the board from discussing or taking action on district business outside of an official meeting. McGee divulged that in doing some "background checking" on a question from school board member Ken Dauber about outstanding Freedom of Information Act (FOIA) appeals that the district filed regarding two closed Office for Civil Rights cases, McGee then talked with other board members -- Melissa Baten Caswell, Heidi Emberling and Camille Townsend -- then reported back to Dauber.

"I don't know if this is a violation of the Brown Act or not, but I just want to be very clear that it was inadvertent," McGee said.

Dauber sent McGee an email on Dec. 4 expressing his concerns about the possible violation, asking that the situation be brought to the board for a public discussion as soon as possible.

"I am not saying that the Brown Act was violated, however, an issue may have inadvertently been created through the communication to me of the views of other board members," Dauber told the Weekly Wednesday. "As I said at the meeting last night, I appreciated Dr. McGee's transparent and forthright approach to this issue and his willingness to immediately and fully address any issues or problems, including by having a public discussion of the issues raised in his email to me."

The school district filed in 2013 requests for files and records relating to a disability discrimination case opened at Terman Middle School in September 2011 and a racial discrimination case opened at Jordan Middle School in April 2013. In the Terman case, the Office for Civil Rights eventually issued a letter of finding to the district, concluding that Palo Alto Unified had violated anti-discrimination laws by failing to respond appropriately and effectively to disability-based harassment of a disabled student. The Office for Civil Rights found there was insufficient evidence of discrimination in the Jordan case.

These original FOIA requests were made to the OCR's regional office in San Francisco, and the denials of those requests also came from that office, which said that "any records in open cases when release could reasonably be expected to interfere with the ongoing activities of the case."

The Terman case remains open. In the closed Jordan case, OCR provided some documents in response to the district's request and denied others on privacy grounds.

The district then appealed the denials, and those appeals remain pending after more than 15 months. (Appeals of denials go to a different place; the regulations require appeals to be made directly to the U.S. Department of Education's Office of Management Appeals Office in Washington.)

A resolution criticizing the Office for Civil Rights investigative practices approved in June authorizes the board to revisit the Terman case and to advocate for the federal agency to improve its processes and procedures with school districts.

Dauber urged the superintendent and board Tuesday night to end any spending of district time and money on the pursuit of information on the cases.

"I think that one thing I've heard from Dr. McGee and I heard from many members of community over the last several months is that there is a real benefit in drawing a line underneath these closed cases and moving on," Dauber said. "And really the last piece of that is these outstanding FOIA requests. I think that the right thing to do, and I hope that you'll support this, is to withdraw those two pending FOIA requests...and to thereby not expend further money and also not incur the future engagement with all those facts and those cases that we're going to when those documents come back."

Dauber directly asked McGee at Tuesday's board meeting if he expects to spend any more staff time or legal fees on either revisiting the Terman case or the advocacy efforts promised in the resolution.

"I wouldn't recommend reopening a closed case, let me put it that way," McGee responded.

However, in a Dec. 3 email to Dauber, McGee wrote that he "cannot support withdrawing the FOIA."

"Obtaining this information is of importance because it apparently it will either confirm or refute that some specific district employees (former and current) were falsely maligned," McGee wrote. "Again, I do not know all of the details, and my preference is move forward. That said, this request apparently matters a great deal to the three remaining board members, and I think in respect to them we should neither withdraw the request nor aggressively pursue continuing to try to obtain the information."

At just before midnight on Tuesday, Dauber attempted to offer a motion on withdrawing the pending Freedom of Information Act appeals but was unable to because the original agenda item was categorized as "information," meaning the board could discuss but take no action on it.

The other board members opposed dropping the appeals – partly in the hopes that they will at some point yield further transparency and partly because of the late hour.

"If we're going to have a deeper conversation about it, I would not like to do it at 11:45 p.m.," said member Heidi Emberling, who was elected vice president earlier in the evening. "I do have to say, just based on all my years in journalism, that Freedom of Information Act requests are to promote transparency. There have been so many closed doors to us in terms of getting information about processes and procedures and moving forward with these cases that to me, we've already done all the work.

"The only thing we would get by doing nothing is more information," she added, saying they might as well wait to hear a final decision from the federal agency.

New board member Terry Godfrey agreed.

"If it's not a lot of effort on our part to just let it ride and see if we get information back, more information is better," she said.

But she added that she'd like to better understand what the board had initially intended to do with the documents requested through the Freedom for Information Act.

Board President Melissa Baten Caswell noted the reason for the federal agency's denial of the original requests was that the information could not be provided until these cases were closed.

"I believe we made this request for transparency's sake and I don't see that changing," she said, adding that the topic can be brought back for a future meeting.

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5 people like this
Posted by JB mom
a resident of Green Acres
on Dec 10, 2014 at 2:11 pm

Refreshing to see a superintendent own up to a possible mistake and move on. Reminds me of how McGee handled the OCR complaint that he received, by picking up the phone and solving the problem.

And real debate on the school board? Pinch me, I must be dreaming.

2 people like this
Posted by Send in the Clowns
a resident of Adobe-Meadow
on Dec 10, 2014 at 2:37 pm

The thing that Terry and Heidi don't understand is that these requests are not free. Chad Graff, who bills the district a partner rate of $275/hour just billed us this week to work on these appeals, to communicate with OCR, and to respond to their request for more information. I will be surprised based on his large bills in the past, if we get billed less than $1000 for that.

Lawyers bill for their time in 6 minute increments. They do not work for free. [Portion removed.]

If a private citizen wishes to pursue a FOIA case, that is their right. Heidi or Terry Godfrey should definitely feel free to take their time or their money and pursue these. But why would the taxpayers pay for that wild goose chase? Under what authority is this activity being conducted? If it is being conducted pursuant to the resolution then it is to either attack OCR or to reopen the Terman case -- neither of which is a good idea. If it is for some other purpose as seems evident (clearing the reputation of some staff member) then that is ridiculous. I don't want to pay for that!

As for this district wanting these FOIA documents for "transparency" I nearly fell out of my chair laughing. From now on I will only read reports of this school board while sitting on the floor. Really. The district that takes 8 months to respond to FOIA requests itself is now interested in transparency? Does that mean that when these FOIA documents come they will be distributed to the public or placed on the internet?

No. When these documents come, if ever, they will be redacted until they are entirely blacked out, and discussed only in closed sessions, under specious "litigation" exceptions and "privilege" claims. [Portion removed.]

1 person likes this
Posted by Don't see it
a resident of Another Palo Alto neighborhood
on Dec 10, 2014 at 3:03 pm

The point of the Brown Act is to require school boards to talk in public.

The "three remaining" board members mentioned in the article did that. They talked publicly about the importance of the FOIA requests at least twice, once when they voted to approve the OCR resolution in June and, as the Weekly reports, again at the board meeting last night. I don’t understand how this is a Brown Act problem.

The board vote was 5-0 in favor of getting this information. [Portion removed due to inaccurate information.]

So all that is left is to wait.

The Weekly reported that one of these FOIA requests is just for a copy of an email the OCR shared with a PAUSD principal that the district wants to read too. As usual, a hearty discussion followed:

Web Link

4 people like this
Posted by parent2
a resident of College Terrace
on Dec 11, 2014 at 9:21 am

parent2 is a registered user.

When my son was a teenager, I would often catch him doing bad things. I thought that it was bad luck on his part that every time he smoked pot or had a party I happened to catch him. Wow, that kid is really unlucky. Then my husband pointed out that he was up to no good pretty much all the time but only got caught when I happened to be there. Light bulb.

Mr. Dauber, I wish you luck and courage. You are going to need both.

3 people like this
Posted by Spectator at Large
a resident of Leland Manor/Garland Drive
on Dec 11, 2014 at 12:49 pm

Spectator at Large is a registered user.

Dear Dr. McGee: It is unfortunate that your hands have been tied by the "three remaining board members" and that for whatever reason Terry Godfrey has decided to "go with the flow". I am very disappointed to hear that my tax dollars will be going out to help pay for more help from legal counsel. There will be no benefit from continuing to pursue this. The important thing now is to operate as a District guided by the board in an ethical, forthright and moral fashion in providing all of our students the tools they need to become educated in our amazing community. If we had done things right in the first place there never would have been a Letter of Finding issued against our district. Dr. McGee, you have the ability to step up to the plate and be the best champion for transparency in order to avoid the missteps that your predecessor took. I would take issue with your statement below,

"Again, I do not know all of the details, and my preference is move forward. That said, this request apparently matters a great deal to the three remaining board members, and I think in respect to them we should neither withdraw the request nor aggressively pursue continuing to try to obtain the information."

Dr. McGee, I ask you, why is going along with a request that was made by the three remaining board members just because it means a great deal to them and you don't want to diss showing a real leadership role? I believe that Terry was quoted in her campaign of not being in favor of supporting further expenditures on the OCR matters. Now she has flip flopped. Dr. McGee, what do you define as "aggressively pursuing continuing to try and obtain the information". Suppose you look at the billings that come in from the district's counsel (which I would like to see transparently presented to the public) and decide that we are about to go over the "aggressive" amount, will you be willing to say, "Enough" out of respect for the people who pay your salary....namely the public? Please Dr. McGee, out of respect for us the voters who clearly mandated some changes needed, let's just dismiss this. Enough is enough. To Ken and Terry, you do not have to ever go with the flow; particularly if the flow is a bunch of sewage left over from the last administration. It's time to clear the slate and do some esteemable acts so that we won't have to continue to pay a PR person help make us look better to the public. Personally, I have never been in favor of paying someone to "spin" our district into a better looking animal. We can do it ourselves through "right action".

Like this comment
Posted by Those 183 Votes
a resident of Crescent Park
on Dec 11, 2014 at 12:59 pm

Those 183 Votes is a registered user.

"It is unfortunate that your hands have been tied by the "three remaining board members""

Last I looked, 3 was a majority of school board members. This was a polite way to let Dauber know that if he wants to make changes, he needs to get the majority of the board to agree with him.

Once again, McGee comes up smelling of roses. And Dauber has already crossed swords twice with him and lost.

1 person likes this
Posted by Spectator at Large
a resident of Leland Manor/Garland Drive
on Dec 11, 2014 at 2:13 pm

Spectator at Large is a registered user.

@Those 183 Votes:

This comment can be summed up is one word, HILARIOUS!

"Once again, McGee comes up smelling of roses. And Dauber has already crossed swords twice with him and lost."

1 person likes this
Posted by parent2
a resident of College Terrace
on Dec 11, 2014 at 3:10 pm

parent2 is a registered user.

183 votes, you need a new name. I suggest "-1000 votes" because that is how much Mr. Dauber won by.

it's a new day, as the cheering crowd showed. Sorry you don't like it.

I don't think Mr. Dauber "crossed swords" with McGee. He saved him from violating the Brown Act and tried to save him from the embarrassment of his "media tracker" foolishness. So much for McGee's goal number 5 of avoiding distractions. Oops.

I do agree that the three board members from the old board are the problem. On the FOIA requests, McGee's mistake was polling the board and reporting back to Dauber. But what he reported showed that the old board is irrationally attached to continuing to throw good (taxpayer) money after bad on the OCR issue. Notice that McGee pretty much agreed with Dauber that this is a waste of time and money, but that he felt he had to follow the wishes the majority of the board (which he does, of course).

[Portion removed.]

1 person likes this
Posted by parent2
a resident of College Terrace
on Dec 11, 2014 at 3:24 pm

parent2 is a registered user.

[Portion removed.] Heidi called it an "internal mechanism" that just "tracks to see if good stories are making the news." Heidi criticized Dauber bringing this up during the Board meeting (even though it was on Max's report which was prepared for the Board to expressly comment on) because she thought it was 'too granular' and that the only role for the board is to discuss the "vision of the district, based on its strategic plan."

Where to begin. First of all, the Superintendent presented this information to the board and asked for comments on it.

[Post removed.]

2 people like this
Posted by SWE
a resident of Green Acres
on Dec 11, 2014 at 8:26 pm

SWE is a registered user.

""Obtaining this information is of importance because it apparently it will either confirm or refute that some specific district employees (former and current) were falsely maligned," "

Does the District have a legal obligation to spend money doing this for former and current employees? Specifically, in their contracts, is the District obligated to spend money pursuing something like this to the satisfaction of some employee?

Because it seems to me that a lot of families have been falsely maligned, mistreated, and lost money, time, been caused considerable stress, and even moved away because of things District employees have done, things McGee doesn't know about and won't if he makes no overt effort. He's surrounded by a few CYA types who are going to cause him all kinds of grief just like they caused Skelly if he doesn't wake up.

But if the District is doing this only because it's the right thing to do, to spend taxpayer money in order to straighten out the record to individuals' satisfaction, it seems to me they should be starting with the records of students whose educational records contain false and hurtful representations, especially since most families are otherwise unable or unwilling to spend the money and effort correcting problems when those who committed the infractions are still in the district office (and can be pretty petty and vindictive, from what I have seen).

Shouldn't the first responsibility of the district be to current students? To correct the record of current students? Because we're a school district and the goal of our financial expenditures is to educate students, and their wellbeing and educational records are an important part of it. Typically, when employees have cause to need legal representation paid by their employer or their employer's insurance company, it's spelled out in their contracts. otherwise, typically the legal costs fall to the employee to bear, not the employer. Especially of *former* employees.

And actually, on the District level, some of the most problematic employees complains endlessly about the burdens of any records request by families, whether to correct a problem, correct an error, or even to correct their maligning someone else. They seem to put more effort into complaining about fulfilling records request than to actually fulfilling them -- and they often don't. I have heard this complaint from parents repeatedly over the years, and if McGee doesn't open his eyes, he's going to end up for a rude shock when his honeymoon is over.

Sorry, but further commenting on this topic has been closed.

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