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.