Kevin L. Hoover
Mad River Union
NOHUM – In an effort to improve compliance with public disclosure laws, the Northern Humboldt Union High School District (NHUHSD) Board of Trustees last week held a study session with an expert on the Ralph M. Brown Act.
Enacted in 1953, California’s Brown Act attempts to ensure that public business is done in public. That has always been a problem, but recently even more so with the advent of e-mail, which allows unwitting or untrained public officials to hold virtual meetings via e-mail.
That’s just what the NHUHSD board did beginning last June, both before and after Trustee Dan Johnson delivered a plagiarized commencement speech to Arcata High School’s graduating class. E-mail messages between a quorum of NHUHSD trustees frantically trying to quash the scandal and shut out the public were a prime example of what Brown Act trainer Margaret M. Merchat listed as the second most common type of Brown Act violation, following disclosure of business done during closed-session meetings.
“The public gets to know what you’re doing, and why,” Merchat told the trustees. “You are doing the people’s business, so you have to do it in public, with very few exceptions.”
At the same time, she said, the trustees should retain control of their meetings. “It’s not the public’s meeting, it’s your meeting, but it’s done in public.”
After cautioning against disclosing closed session matters, Merchat got to the heart of the NHUHSD issue – discussing board business in serial conversations. Any meeting of the majority of the board to discuss or act on any matter before the board must be publicly noticed and conducted in public, she said.
While at one time the requirement was limited to instances when a governing board might take action, a court case left to broadening of the law – which has evolved substantially since it was first enacted – to include non-actionable matters.
Merchat, who is a senior associate general counsel with School & College Legal Services, cited section 54952.2 of the Brown Act, which details prohibited communications – a definition which clearly includes the serial exchanges by a majority of trustees over the Dan Johnson scandal.
District Supt. Chris Hartley said that NHUHSD arranged for the presentation, and that it contracts with School and College Legal Services for this type of training.
Merchat further explained the subtle and seemingly innocuous ways that elected officials can get into Brown Act trouble.
For example, all five trustees could, in principle, call the district superintendent to ask about an upcoming agenda item, and he could tell them without any violation.
But, if any offer an opinion on public business, the superintendent can’t relay that information to other members, because then it starts to be a non-noticed, non-public meeting. Two of the five trustees can even discuss board business, she said, but if either mentions anything about it to a third trustee, that’s a violation of state law.
The NHUHSD board’s downfall was e-mail, and it isn’t the only body to succumb to temptation with a quick click on the “reply all” button.
“E-mail is just so easy, and it’s something we have to be careful with,” Merchat said. “‘Reply all’ should be removed from your computers.”
She further explained pitfalls of commenting on blogs and Facebook, which could again lead to a majority of a board having a discussion.
“Avoiding some of this technology is important,” Merchat said.
“You do have free-speech rights, but you have to be careful.”
The NHUHSD board has already learned to be more discreet in its e-mail use, thanks to last August’s embarrassing disclosure of reckless and revelatory e-mails between boardmembers. A subsequent Public Records Act request for more documents related to the Johnson plagiarism scandal yielded e-mail messages of a much more circumspect – and legal – nature. The later messages were free of the petty sniping and entreaties to shut out the news media that had marked earlier exchanges, and no more serial meetings were in evidence.
Another Johnson-related matter came up with regard to public statements. As part of his plagiarized address, Johnson had accepted the AHS graduating class on behalf of the board, having coordinated the address in advance via e-mails with other trustees. He has since refused to provide the text of the speech, a public document, even to the school district.
Just as Johnson could have avoided plagiarism charges by simply acknowledging his speech’s actual author, Wellesley High School teacher David McCullough, he might also have exempted the speech from the public record by stating that he was speaking on his own behalf.
“When you do make some statement in public, you should say that you aren’t representing the board,” Merchat explained.
She went on to detail other Brown Act issues, such as those surrounding subcommittees.
Cleaning up after the still-unresolved Johnson scandal is a major distraction for the NHUHSD, which should be riding high. It is creating new facilities in Arcata and McKinleyville thanks to funding from voter-approved Measure Q, and is anticipating an improved school funding picture thanks to recovery of the state’s budget.
Johnson was absent from last Wednesday’s meeting. His attendance at NHUHSD meetings has been spotty of late. According to district records, Johnson was absent from seven of 18 scheduled Board of Trustees meetings in 2013 – about 39 percent – and was late for four others. Of the three board meetings so far this year, Johnson attended the first two, missing last week’s Brown Act study session.
Other trustees were far less truant. They’ve made all of this year’s meetings, and most of last year’s. Of the 18 meetings, Former Trustee Mike Pigg had perfect attendance. Trustee Colleen Toste didn’t miss any meetings, and was late for two. Trustee Dan Collen missed two meetings; he also arrived late and left early one time each. Trustee Dana Silvernale missed just one meeting.