|
Getting your Trinity Audio player ready...
|
When Palo Alto school district trustees saw the first draft of a much-anticipated agreement with Stanford University related to the university’s proposed expansion, they expressed concern about a provision that, as it turned out, would ultimately spell the undoing of the deal and the suspension of further talks.
The benefits Stanford had tentatively agreed to provide were conditional on the approval of a development agreement between the university and Santa Clara County. Board members, who wanted the agreement to be conditional instead on the county’s approval of Stanford’s general-use permit (GUP), directed Superintendent Don Austin on April 10 to counter, they said in interviews with the Weekly.
The district communicated to Stanford that it wouldn’t move forward with a conditional agreement, Vice President Todd Collins told the Weekly, throwing the deal into uncertainty. Austin said the district and Stanford’s negotiating teams, who had met for two days in late March to work out the deal, were “working through multiple issues” up until several minutes before publicly releasing the terms of the agreement on April 15.
“What had been a fully negotiated deal was at risk for a period of days,” Collins said.
Stanford’s response to the district’s request for a non-conditional agreement, Austin told the Weekly, was that “it was not a position that they felt they could bend on.”
The district conceded, reasoning that a conditional deal was better than no deal — especially after Stanford had for many months been unwilling to offer any kind of mitigations to the district, Austin said. On April 15 they announced a tentative, conditional agreement to provide the district an estimated $138 million over 40 years.
“While it made more sense to me that it be conditional on the GUP itself, if Stanford was unwilling to do that at the time we either could walk away from the whole agreement or accept it as it was,” said board President Jennifer DiBrienza. “It seemed reasonable to me that we accept it as is and continue to support a development agreement and all the other mitigations that we wanted our community to see.”
Instead of proceeding with development-agreement negotiations, however, the county decided to suspend them, saying that the contingency clause would provide Stanford unfair leverage during talks.
In a statement provided to the Weekly, Stanford said that “it was understood throughout our discussions with (Palo Alto Unified) that benefits for the school district would be conditional on a development agreement and that Stanford would seek to include the outcome of those talks in the development agreement process with the county.
“The university believes a development agreement is needed because it will provide certainty over the long term about the total package of community benefits that will be provided as development occurs on the Stanford campus,” the statement reads.
Austin and some board members said they were taken aback by county Supervisor Joe Simitian’s critical comments on April 15 about the deal, in which he called it “regrettable” and a bad-faith effort. Board members said he had encouraged the district and Stanford earlier this year to resume talks. DiBrienza said the first time she heard from Simitian that a conditional agreement would be unacceptable was during a phone call on April 12.
Austin said Simitian had communicated to him examples of provisions that the deal shouldn’t be contingent on but did not mention the development agreement.
Austin said that the contingency clause was not explicitly discussed during negotiations but that Stanford had expressed that “without a development agreement they didn’t see a path to a project.”
“After the better part of the year going back and forth with Stanford and those couple days of very serious, good-faith negotiations, we felt like the places where we’ve come together and had agreement were worth sharing,” he said.
“Signing a non-conditional agreement that is never executed because Stanford can’t reach a development agreement is no more valuable than having an agreement that both sides publicly are committed to,” Austin added.
Vice President Todd Collins said the board understood the contingency was important and that he anticipated that it could be problematic for the agreement. (Collins, whose spouse works at Stanford, participated in GUP discussions until an April 16 special meeting, when he recused himself.)
However, he said, “Part of a negotiation is you don’t always get what you want and the negotiating team’s job is to try to get the best deal they think can be gotten. … They did a good job working through a process to get a deal on the table for us to consider.”
The school district has refused the Weekly’s Public Records Act request for the agreement drafts and other communications between it and Stanford as the deal was negotiated in early April, citing a litany of reasons, including that they were only drafts, that they are subject to deliberative process and attorney-client privileges and that the California and U.S. constitutions granted it authority to withhold the material. Of 21 attachments related to the request, the district fully redacted about half, including a redlined base document, two drafts of the agreement and a version of the district and Stanford’s joint public statement.
The Weekly has objected to the district’s reasoning and is awaiting further response.
The board voted last week at Stanford’s request to suspend any further action on the deal.
The county this week released its conditions of approval — the requirements that its planning staff has recommended to compensate for the impact of Stanford’s expansion. In addition to providing funding for Palo Alto’s Safe Routes to Schools program for bicycling improvements, it calls for the university to provide standard school-impact fees, which are funds paid to the district to mitigate for new students enrolled as a result of new development. Austin, on April 16, stated that those fees would total about $4.2 million, in contrast to the $138 million over 40 years that had been negotiated by the district.
Stanford’s general-use permit application continues to move through the county’s approval process with a series of Santa Clara County Planning Commission hearings starting next Thursday, May 30, in Palo Alto.
Related content:
• Despite Stanford objections, county calls for more housing in campus expansion
• Stanford, county supervisors give conflicting accounts of talks to restart negotiations
Stanford is just playing political games with our children’s educations. Shame on them.
Horse radish @resident – all of this is just the Teacher’s Union looking to tap a new revenue source to maintain and increase their salaries – through funding the students from the extra housing it and the SEIU (through their elected officials, Joe, school board, etc) are trying to force Stanford to build. Another exercise in deception and money grabbing by the Teacher’s Union.
Well, well, well, the public agency school district refuses to comply with the public records act…wow…what a surprise…didn’t comply w regard to employee misconduct, didn’t comply for months for routine communications, blaming too many requests, blaming and smearing others, the dog ate my homework and no legitimate excuse now.
Where is that legal counsel?
Our school board members are complicit as usual I guess..
PAUSD seems pretty easy to negotiate with. As has been seen with PAMA and now with Stanford, basically all you have to do is threaten that you’ll walk away and PAUSD caves.
The negotiations consisted of, as Austin said, “the better part of the year going back and forth with Stanford and those couple days of very serious, good-faith negotiations.” That’s it? Does PAUSD think that’s enough effort for an agreement that is going to last for 40 years?
What hasn’t been discussed is what would have happened had the Stanford/PAUSD agreement been approved and then the county forced Stanford to fully build out as the county is now requesting which would add approximately 750 students to the district. Would that $4M or so/year cover that, especially given that a new school would need to be built.
PAUSD needs someone to save them from themselves.
$138 million over 40 years, what a joke! Make it $138 billion over 40 years, lord knows Stanford has the money!
@Jim H – the proposed PAUSD/Stanford deal included per student per year payments coming from Stanford, with no cap – so if more students come, PAUSD would get more money. The deal also included $15M toward new school facilities.
Maybe they can get some sharp negotiator – Trump? you? – to come help them out next time. I’m sure it would be a much, much better deal.
PAUSD cites the “California and U.S. constitutions” as its justification to withhold public information from the public.
Those are gutsy excuses!
California Constitution: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CONS§ionNum=SEC.%203.&article=I
The US Constitution? What provision would that be exactly? An illegal search and seizure? https://usconstitution.net/xconst_Am4.html
Weekly, please post your requests and PAUSD’s responses.
@Art
I believe the $15m was for a collaborative space on PAUSD lands to be used for “innovative purposes.”. I guess that could be a school site, but does not appear to be the intent. Also doubtful that $15M will be enough for a new school given the bills that came in for construction during the current bond.
Do you feel that PAUSD did it’s best by getting less than $4m/ year from Stanford?
Do you know what that $5800/pupil will actually cover in 30 years? 40 years?
Perhaps the original explanation was clearer. But, this summary seems pretty strange:
>> Austin, on April 16, stated that those fees would total about $4.2 million, in contrast to the $138 million over 40 years that had been negotiated by the district.
$138M/40 = $3.45M per year
$3.45M < $4.2M
For reference, here is an online PAUSD budget for 2017-2018. https://www.pausd.org/sites/default/files/pdf-faqs/attachments/2017-18%20Budget%20Book.pdf
Looks like income of $228M currently. I don’t see which line item is Stanford’s current contribution. Is it buried in line item 8699 or somewhere else?
Again, could someone please explain why the proposed deal was so much better than the existing deal? And, why do they keep talking about “40 years”? The key budget number is $/year, not $/40-years.
@legalities
The Weekly submitted this request to the school district on April 16: http://www.paloaltoonline.com/news/reports/1558739058.pdf.
Email replies by school district:
http://www.paloaltoonline.com/news/reports/1558740212.pdf
http://www.paloaltoonline.com/news/reports/1558740260.pdf
Response to further inquiry by PAW:
http://www.paloaltoonline.com/news/reports/1558740392.pdf
Weekly,
Thanks for your doggedness and the links.
Am I reading this right? Baten Caswell and Dharap were fine sharing emails and text messages while the other three Board members…DiBrienza, Dauber and Collins…had PAUSD’s General Counsel tell you why the same rules do not apply to them?
Wow.
The GC is an attorney for the district, not the personal lawyer of Board members facing claims that they ignored transparency laws.
Try telling them that
excuses about drafts and notes don’t fly when the public’s interest in what the materials could uncover outweighs what might be gained by their not sharing. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=6254
confidentiality is waived when you share some of what was said in private meetings with the press. https://www.hklaw.com/publications/Ninth-Circuit-Rejects-Selective-Waiver-of-Attorney-Client-Privilege-in-Government-Investigations-05-08-2012/
If those aren’t persuasive
the California Bar can investigate lawyers who looked the other way on the Brown and Public Records Acts and a records request to the Bar will make what that investigation uncovered public.
Evidence Code Section 956.
Excellent reporting on what happened behind closed doors at that fateful April 10 closed Board meeting. As the Weekly surmised, the School Board did discuss the terms of the Stanford agreement at that meeting, something the Weekly said should have been done in public but wasn’t.
According to Superintendent Austin, Stanford had not mentioned during their negotiation marathon that it wanted their agreement to be conditioned on the County go ahead on a development agreement.
Austin then received a draft from Stanford and he and Jennifer DiBrienza called a closed meeting of the Board on April 10 to discuss it. Brown Act violation #1?
At that meeting, Board trustees “expressed concern” about that condition and told Austin to push back. Despite the Board agreeing to give Austin that direction, DiBrienza reported no action was taken. Brown Act violation #2?
Austin returned to Stanford and pushed.
Stanford would not bend.
Austin returned to discuss what to do next with the Board, in private again, and DiBrienza told him “’it seemed reasonable … that we accept it as is’” rather than trash their work. Brown Act violation #3?
Instead of going back to the negotiation table to see what PAUSD could give up to get Stanford to back off that condition, DiBrienza OKed the Board rushing to accept the agreement “as is” in private.
Their $138 million “agreement” vanished literally over night just because it had that condition in it.
Now PAUSD only has $4 million and a lot of explaining about the Brown Act to do.
Was the Brown Act violated?
If not, why not?
If it was, how many times, who all OKed handling this this way, and what is the Board going to do about it?
At the very least the Board should have DiBrienza step down and let someone who values transparency and knows how the Brown Act works be its President.
It seems we have a set of adults on the school board:
1. I don’t know how to follow directions
Let’s put that in context: A student plans on taking the ACT test and is scheduled in the near future. The student finds out their parents hired someone to take the test for them . The student does not object and figures if they do badly on their own they can always submit the test results received by breaking the rules. They get caught so they will I can submit the one I took on my own we don’t have to use that one.
Who thinks that’ll fly? I bet you’re even a first grader would know that it is wrong.
2. Tell the difference between right and wrong
3. Easy prey to fall for the oldest negotiating trick in the book: once you’ve had the other party invest a lot of time in the deal they generally don’t back out, even if it’s a bad deal because they don’t want to admit they’ve been had .
I guess they just got overconfident because they bully the weak, the disabled, the single parents, the low income, the homeless, aducían Americans, Latinos, etc. Stanford owned PAUSD!
You’d think that if you agreed to a condition dependent on an outside source, you’d want to check with the outside source first.
PAUSD vs. Stanford. Amateurs vs. pros. The substance and what looks likes the process too was engineered for a certain outcome. Thanks to Simitian, who knows what’s up!
“Austin and some board members said they were taken aback … DiBrienza said the first time she heard from Simitian that a conditional agreement would be unacceptable was during a phone call on April 12. ..Austin said Simitian had communicated to him examples of provisions that the deal shouldn’t be contingent on but did not mention the development agreement. Austin said that the contingency clause was not explicitly discussed during negotiations.” – Palo Alto Weekly.
Hard to know all that transpired with DiBrienza, Dauber and Collins refusing to release their text messages with Superintendent Austin but from what has been said and released Austin and DiBrienza’s claims seem disingenuous.
Superintendent Austin was clear from the start:
First, Austin told Stanford before they met: “Looking at the Development Agreement rules of engagement… we can’t cut out own deal.” March 1. Since Stanford and PAUSD could not strike a deal, the School Board would just be asked to “endorse” terms. March 22.
Second, he did not want “to close the door on anything additional that Stanford might want to see.” March 12.
The challenge was that Stanford needed something it said it had clearly communicated to Austin from the start: PAUSD and Stanford’s terms must be conditioned on the County approving a Development Agreement. From the County’s perspective, that was a non-starter and would violate the County rules Stanford agreed to abide by.
So cleverly, the day the negotiations ended, Austin and Stanford signed off on a twist that would make Stanford happy and, they thought, keep the County at bay: PAUSD and Stanford would cut their own deal AFTER the County rules expired. Austin: “We need to honor the Development Agreement ground rules. This includes the fact that we are prohibited from striking an agreement until April 15th.” March 29.
The next week, PAUSD and Stanford turned their terms into a legal agreement, Austin and some Board members had private discussions and meetings that were supposed to be public, and everyone waited to April 15 to issue a joint press release on the deal’s details.
But Stanford, Austin, and Board President DiBrienza misread the County’s rules and went public one day too soon.
As forewarned, Supervisor Simitian saw this to be a flagrant violation of the County rules still in force on the 15th. Objecting immediately, the Stanford and PAUSD $138 million deal went up in smoke.
Why is Ken Dauber refusing to turn over his text messages with Superintendent Austin?
In the Weekly’s 2017 archives
“Officials’ private emails considered public records, state Supreme Court rules. Court: public officials cannot ‘evade the law’ by using private accounts” by Elena Kadvany and Gennady Sheyner / Palo Alto Weekly
https://paloaltoonline.com/news/2017/03/02/officials-private-emails-considered-public-records-state-supreme-court-rules
“California Supreme Court on Thursday unanimously ruled that local officials’ communication about public business on private accounts and devices is subject to the California Public Records Act…Any writing prepared by a public official or employee that ‘substantively relates to the conduct of public business,’ regardless whether it’s written on a personal or public account, is considered a public record, the ruling states…
Karl Olson, a San Francisco attorney who represented a group of news media organizations who filed an amicus brief urging the court to rule in Smith’s favor…’open access to government records is essential to verify that government officials are acting responsibly and held accountable to the public they serve’…
Ken Dauber…’The value of transparency clearly requires that when board members or employees communicate about district matters using electronic communication, that those should be available to the public and disclosable under the Public Records Act’…”
My read is that no one refused to turn over text messages or emails. The emails came from the district servers. Some people had text messages, some didn’t. Not surprisingly, not everybody uses or saves texts. Agree there is no basis for not releasing them, but I don’t think anyone is.
@ Max,
Deleting official PAUSD records would be unusual and probably violates Board policy so doubt that explains it.
But if DiBrienza, Dauber, Collins and Austin didn’t communicate by text, they won’t hesitate to attest to that. They can crib from the residency form PAUSD requires parents to sign under penalty of perjury. “Warning: Do not sign this form if any of the statements below are incorrect or you will be committing a crime punishable by a fine, imprisonment, or both.” https://www.pausd.org/sites/default/files/pdf-faqs/attachments/SharedResidencyAffidavit%20Feb%202018_0.pdf
Before Superintendent Austin cleans out his text messages to and from the three, he might want to ask his private lawyer what the consequences to him could be if he deletes them and the Weekly files a lawsuit to compel their production or the District Attorney decides to get involved and he is deposed and has to take the stand. https://law.onecle.com/california/penal/31.html He can also call LA Unified to see what happened to its now former School Board President.
PAUSD employees on the negotiation committee should brush up on California’s Whistleblower protections.
No employee needs to be silent if their boss or public officials skirted the law.
https://www.dir.ca.gov/dlse/WhistleblowersNotice.pdf
@seriously — a couple confusions in your post I think. As far as I know, there’s no requirement to keep texts around any more than hand-written notes and I expect that many people do not (I regularly delete all my texts). If you think there is a school district policy or education code section covering this, it would be interesting to see. Emails are kept on servers, so presumably are retained; texts exist just on personal devices, and may be retained or not (though of course not deleted after they’ve been requested).
It’s a reasonable bet that the school district, like many government agencies, does require the board members and staff to attest that they have searched their private accounts and devices and handed over relevant material. So your advice there may already be followed.
It looks like the former LA school board president resigned due to conviction for campaign finance and money laundering charges (https://www.latimes.com/local/education/la-essential-education-updates-southern-ref-rodriguez-resigns-as-lausd-1505855812-htmlstory.html). How is that relevant here?
@Anon. The amount that Stanford would be required to pay over the lifetime of the permit by law IF they built as proposed was estimated to be about $4.2 M. They would not have to pay it all at once, but would pay as they developed. The estimated value of the deal they made was $138M. $138M is more than thirty times greater than $4.2 M. That is why it is such a great deal. They are under no obligation to pay anything more than the estimated $4.2 million. Nothing. Zip. Zero.
@ Max.
PAUSD’s records retention policy is on its website: 3 years minimum. https://www.pausd.org/policies#/browse/document/952
If text messages were notes under the public records act, the California judge in the case the Weekly wrote of would not have required that texts be treated like emails and disclosed. “Any writing prepared by a public official or employee that ‘substantively relates to the conduct of public business,’ regardless whether it’s written on a personal or public account, is considered a public record.”
The judge ruled that text messages must be handed over and did not say their terseness mattered. That makes sense since a text that just says “no,” while only two letters long, can be substantive.
“If communications sent through personal accounts were categorically excluded from CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts [so] Consistent with the Legislature’s purpose in enacting CPRA, and our constitutional mandate to interpret the Act broadly in favor of public access (Cal. Const., art. I, § 3, subd. (b)(2)), we hold that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.” https://caselaw.findlaw.com/ca-supreme-court/1851368.html
The “notes” exemption isn’t absolute anyway. It only applies if the public interest in withholding them clearly outweighs the public interest in disclosure. Hard to imagine a better case for the public interest, and against the public official, than when the official is being accused of breaking the law he is invoking to protect him.
No public official who hopes to have a future in politics would try to convince a judge that he didn’t need to share text messages. He’d be perceived as hiding something and lose in the courtroom and in the court of public opinion.
@FOIA – always good to have an expert weigh in! I didn’t see anyone decline to share text records or say that they were “terse.” Did I miss something?
I’ve filed a few public records requests for information for all emails with principal, IEP team, etc… They have all been closed without a response. I open them again, and they are closed again. I did not get any email or texts (which is impossible since I was copied on some emails, and I even have a copy of a decision sent by a teacher via text, the school still denies its existence, insisting he was on leave and couldn’t have sent it. They even made a police report disappear and before someone refers me to the police, I have gone and it does not exist. Apparently the badgering
of an eleven year-old to recount the incident by the assistant principal (without my permission) in a storage room to confirm if she could also identify all the kids bullying her by their shoes (since she was knocked to the ground) even though she was looking right at them before they knocked her down and kicked her, could have been enough to recall the report? In any case its gone, even if there are several parents referred from the group violence.
The point is – you RARELY get all the info disclosed, especially if its sensitive. I have heard from other parents that they get 2 email streams from the school with some sort of content taking up a couple of screenfuls and a terse procedural response at the end, while they continue the exchange on a separate email. They they use the obfuscated message as proof they fulfilled their legal requirements.
Posted by @Anon, a resident of Crescent Park
>> @Anon. The estimated value of the deal they made was $138M. $138M is more than thirty times greater than $4.2 M. That is why it is such a great deal. They are under no obligation to pay anything more than the estimated $4.2 million. Nothing. Zip. Zero.
Yes, -I get it-. $5800 per student per year may be less than the real cost, which is somewhere between $11,000 and $19,000 depending on your point of view, but, it is more than zero. I get it. You think of that as “such a great deal”. I don’t. I think “a great deal” would have been more than $20,000 per year per student, because, that would actually make things better for the district budget, instead of arguing over which degree of worse we are talking about.