School board runs afoul of Brown ActFree Access

Everett’s docs should have been copied for public, attorney says



From left, Superintendent Mark McLaughlin, board president John Andersen and trustee Sandee Everett at the May 15 Conejo Valley school board meeting. An action the board took that evening has the elected body under scrutiny from the district attorney’s office. DAWN MEGLI-THUNA/Acorn Newspapers

The Ventura County district attorney’s office is reviewing whether a last-minute submission of a revised version of the Conejo Valley Unified School District’s core literature policy prior to a school board vote qualified as a violation of California’s open-meetings law.

On May 15, the Conejo Valley school board discussed and voted on an amended policy that was not made available to the public during the meeting, despite requests from audience members and the press.

The Ralph M. Brown Act, a longstanding state law that establishes rules for government meetings, requires that written materials distributed to a majority of the members of a legislative body for discussion or consideration at a public meeting are made available at the time of distribution if those documents were prepared by the government body or by a representative of that body.

Ventura County Deputy District Attorney Thomas Frye said Monday that his office was reviewing footage of the meeting to assess whether the 11th-hour submission constituted a violation of the Brown Act.

Sandee Everett, the trustee who provided the revised policy, blamed district staff for not properly disseminating the 17-page document. She said the proposed amendments represented only minor adjustments, and they were not attached to the agenda because they were not formal staff recommendations.

Nonetheless, she said, copies of the amendments should have been placed on the back table in the boardroom.

Everett said she did not finish her markup of the policy until the day of the meeting and no other trustees saw her proposed changes until the document was distributed at the opening of the hearing. She said a call she received from a parent on May 10 caused her to need additional time before making her changes public.

Everett said she followed the same procedure to introduce her proposed amendments to the FAIR Act last January and no one made a Brown Act complaint.

“No one has ever complained about this in the past,” she said. “It was an honest mistake.”

Frye said penalties for Brown Act violations could range anywhere from the board being required to revote on the item to the board being served with a cease-and-desist letter to discontinue the prohibited behavior.

On May 11, when the agenda for the May 15 Conejo Valley school board meeting was posted, it included an update to the district’s core literature policy, a copy of which was attached to the agenda. On the recommendation of CVUSD staff, the board had at its prior meeting discussed updating the 6-month-old policy in light of the California Department of Education’s decision to remove language from its website that had served as the policy’s basis for flagging books with mature and potentially troubling content.

Acorn denied copy

A little more than an hour before the 6 p.m. meeting began May 15, Everett submitted an alternate version of the literature policy with some language stricken and new language in bold to board clerk Hyonchin Im-Turner.

Im-Turner made copies to be distributed to board members during the meeting. A request by the Acorn to obtain a copy was denied at the time of photocopying.

Im-Turner said Everett instructed her to make a specific number of copies and to wait until the agenda item came up for a vote to distribute the documents to the other board members rather than pass them out at the beginning of the meeting.

When the board arrived at the action item, Everett made a motion to vote on the item as amended, at which time Im-Turner distributed copies of the alternate policy to the other four board members. Copies were not made available to the public, despite verbal requests from the audience.

Trustee Pat Phelps asked board president John Andersen to table the matter until she had sufficient time to review the newly provided documents, but her motion failed.

Board member Betsy Connolly requested a 15-minute recess so she could read the document; Andersen called a four-minute recess to allow Connolly to read the policy before voting.

After a series of verbal amendments, Everett’s policy was approved by a 3-2 vote, with Connolly and Phelps dissenting. A copy of the approved policy was made available to the public around noon the next day.

CVUSD school board candidate and attorney Jenny Fitzgerald accused the board of violating the Brown Act in a Facebook post shortly after the vote. She said the board had specifically violated government code section 54957.5(c) which reads in part: “Writings that are public records . . . and that are distributed during a public meeting shall be made available for public inspection at the meeting if prepared by the local agency or a member of its legislative body.”

Fitzgerald wrote an email to CVUSD trustees May 16 requesting a written response on how, or if, the district could justify not making the documents public.

“It shouldn’t be this way,” she wrote in a May 15 Facebook post shortly after the meeting. “Approving amendments the same day they were received and forcing fellow board members to review them on the spot, without the public even knowing what the amendments were, is plain and simply wrong.”

Nikki Moore, an attorney with the California Newspaper Publishers Association and an authority on the Brown Act, said the amended policy should have been made available because it was the subject of a public board discussion.

“They should have provided the document to the public at the time of discussion, and failure to do so would constitute a violation of the Brown Act,” she said.

Moore said if a violation occurred, liability related to the violation would likely apply to the governing body as a whole. While this kind of clerical issue is a low-level offense, she said, it could turn into something more if there was a pattern and practice of denying access to documents.

“If moving forward they continue to deny the public access, that would be a serious problem,” Moore said. “That’s going to look pretty nefarious.”

School board trustees receive regular training on Brown Act compliance. Their last training was in September 2017.