Superintendent's Statement on the Brown Act and Public Records Act Requests

SUPERINTENDENT STATEMENT ON THE BROWN ACT AND PUBLIC RECORDS ACT REQUESTS

I want to respond to the recent articles in the Palo Alto Weekly and Palo Alto Online implying, if not expressly stating, that the school district, specifically the superintendent and the Board of Education, violated the Brown Act because of the "confidential" weekly updates on school matters that I have been sending to the Board. One of my most important values as a senior leader in the District is transparency and openness. For this reason and the expectations of our community, it is important that I address this issue directly.

First, I want the community to know that neither I nor the Board would ever intentionally violate the Brown Act.It is my belief, and the belief of our legal counsel, that my weekly update to the Board members in fact does NOT violate the Brown Act. In his letter to the District, Bill Johnson, the editor of the Palo Alto Weekly, quotes the Brown Act, Government Code section 54952.2 subdivision (b)(1) which provides: "A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” However, the next Subdivision is (b)(2) which provides: "Paragraph (1) shall not be construed as preventing an employee or official of a local agency, from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information, regarding a matter that is within the subject matter jurisdiction of the local agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body."

It is important to know the nature of the "confidential" weekly memo of April 20, 2012.Like many districts throughout the state of California and across the nation, superintendents write weekly memoranda to their boards in order to provide them with updates on district activities. In the case of PAUSD, the importance of this can be seen in the Board and Superintendent's Protocols. These were adopted by the Board on September 11, 2007 and January 29, 2008 and are reviewed annually. Several of the relevant protocols include:

The Superintendent will:

  • Inform the Board prior to critical information becoming public; apprise all Board members in a timely manner of any major incident or when they may be called on to answer or explain.
  • Distribute information fully and equally to all Board members.
  • Communicate with individual Board members to determine if concerns exist prior to a possible problem developing, and respect the right to disagree with each other.
  • Keep the Board informed regarding issues and/or situations that concern parents, students, staff, or community.

Visit: http://pausd.org/community/board/protocols.shtml

For my five years as superintendent, I have faithfully provided the Board an update virtually every week. In addition to my weekly communication (or “weekly”), members of the superintendent's cabinet also provide information. My regular weekly is then combined with that of cabinet and distributed to the Board and cabinet members.

At times, there are personnel, potential litigation, property or negotiation issues that are truly confidential. Using the term "confidential" signals to the Board that information is not being shared with members of cabinet and, hence, staff members broadly.

While I believe that there are solid, appropriate reasons for this type of communication, the Board, District staff members and I have always known that the great majority of these weekly communications are public records and, as such, are fully open to public scrutiny should they be requested. At no time has there been any attempt to keep information from the public or prevent those who inquired about information from receiving it. Further, Board members are well-versed in the Brown Act and the fact that serial conversations could constitute a violation. I am confident that the Board has assiduously avoided any activity or conversations that would mean that more than two Board members have communicated their thoughts on a topic with each other.

Second, I believe it is important that the public has a chance to learn more about the Brown Act and Board members have the chance to ask our legal counsel for input about the particular issues that have come up recently around this complicated piece of legislation. We all want to avoid doing anything that violates the Brown Act and, just as importantly, anything that violates the SPIRIT of the act. Toward this end, a Study Session of the Board has been scheduled for May 31 at 1:00 p.m. at the District office in conference Room A. This meeting will be recorded for the community and will be open to the public. Yesterday I had a fruitful meeting with Ken Dauber and Bill Johnson at the Palo Alto Weekly office to discuss their thoughts on this meeting as well as their public records requests which are described below. I look forward to working with Board President Townsend and Vice President Tom on the agenda.

Thirdly, since April 23, parties with concerns about Brown Act Violations and other activities of the District have filed nine Public Records Act requests. These requests have been filed by the Palo Alto Weekly/Bill Johnson, Ken Dauber, Michele Dauber and the Palo Alto Daily Post/Jen Nowell. Staff is working hard to respond to these requests within a reasonable time period and has completed several of them.

In the spirit of full disclosure, we believe that these documents and the requests are of interest to the larger community. So that the public can form its own informed position on these topics, we have posted the public records requests we have received to date on the District website, including the materials that were provided to the requester. Please visit http://pausd.org/community/PublicRecordsRequest/. While this is far more than what is required by law, I believe it is important for three reasons. First, it matches the District's interest in and commitment to providing full transparency and information. Second, I believe that it will give those who take the time to read and study this material a chance to appreciate the extraordinary thoughtfulness and professionalism of staff and Board members. Finally, since these requests take a great deal of time and taxpayer resources, the public deserves to see what they are getting for their money.

PAUSD enjoys extraordinary support from our community. One of the biggest reasons for this support is that people trust us to operate with integrity and to do what's right. I look forward to our conversations on these topics in the weeks to come.

Kevin Skelly, Ph.D.

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