OFFICE OF THE DISTRICT ATTORNEY COUNTY OF VENTURA, STATE OF CALIFORNIA .5 GREGORY D. TOTTEN JANICE L. Maumzr ?r?r?nm (. District Attorney Chief Assistant District Attorney MICHAEL K. FRAWLEY Chief Deputy District Attorney Administrative Services W. CHARLES HUGHES Chief Deputy District Attorney Special Prosecutions MICHAEL R. JUMP Chiet Deputy District Attorney Victim a Community Services MICHAEL D. SCHWARTZ May 25, 2018 Special Assistant District Attorney Justice Services John Andersen, R. MILES WEISS Chief Deputy District Attorney Board of Educatlon PreSIdent . . Criminal Prosecutions Conejo Valley Uni?ed School MICHAEL BARAY 1400 13' Janss Road Chief investigator Thousand Oaks, A 91362 Bureau of investigation Sent via email: org Re: Brown Act Complaints Warning Letter Dear Mr. Andersen: This Of?ce received several complaints that the Ralph M. Brown Act (Brown Act) was violated at the May 15, 2018, Conejo Valley Uni?ed School District (CVUSD) board meeting. The complaints are as follows: (1) CVUSD Trustee Mike Dunn should not have commented on questions posed during public comments; (2) the board should have postponed action on proposed amendments to Board Policy and Administrative Regulation 6161.1; and (3) the writing containing the proposed amendments should have been made available to the public at the meeting. We ?nd no violation of the Brown Act in regard to the ?rst two complaints but do ?nd a violation in regard to the third. RESPONSE BY TRUSTEE TO PUBLIC COMMENT During public comments, a member of the public acting as an advocate for her child asked several questions centered on the process by which one may gain admittance to a school-of?choice. Later, during board comments, Trustee Dunn, speaking to staff, inquired, ?what is the best way the District can respond to the four questions. . Trustee Dunn was informed a staff member could provide the information to the questioner at a later date, after research was conducted. Under the Brown Act, a member of the public, may, with limited exceptions, comment on items of interest not on the agenda as long as the topic is ?within the subject matter jurisdiction of the legislative body.? (Gov. Code 54954.3, subd. Government Code SPECIAL PROSECUTIONS 5720 Ralston Street. Suite 300, Ventura, CA 93003-4010 - http://vcdistrictattorneycom - (805) 662-1750 Fax (805) 662-1770 John Andersen, Board President May 25, 2018 Page 2 section 54954.2, subdivision states, in turn, ?members of a legislative body or its staff may brie?y respond to statements made or questions posed by persons exercising their public testimony rights (Emphasis added). The Brown Act also states, ?a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual (Gov. Code 54954.2, subd. Here, Trustee Dunn responded to questions posed by a member of the public by asking CVUSD staff how to best address the questions. As indicated above, the Brown Act allows board members to ?brie?y respond? to public comments and to refer questions to its staff. Accordingly, Trustee Dunn?s statement was not a violation of the Brown Act. Additionally, the proposed future communication between a staff member and a member of the public is not governed by the Brown Act. With limited exceptions not applicable here, the Brown Act applies only to members of legislative bodies. (See Gov. Code 54950.) The de?nition of ?legislative body? does not include staff. (Gov. Code 54952.) In sum, Trustee Dunn?s response to the public comment did not constitute a violation of the Brown Act. POSTPONEMENT OF ACTION ITEM 4.C. The agenda for May 15, 2018, meeting included action Item 4.C., entitled, ?Board Review of Board Policy and Administrative Regulation 6161.1 Selection and Evaluation of Instructional Materials.? During open session discussion on this agenda item, Trustee Sandee Everett distributed to the board, for the ?rst time, a document containing her proposed amendments to Board Policy and Administrative Regulation 6161 . 1. A motion was made by a board member to postpone any decision to approve the amendments to allow more time for their review. This motion failed by a vote of three to two. After further discussion of the amendments, the motion to adopt the amendments passed by a vote of three to two. The complaint received by this of?ce asserts the failure to postpone the decision on this item was unlawful under the Brown Act. The Brown Act does not address a legislative body?s decision whether or not to postpone a decision relating to an item on the agenda. Accordingly, no Brown Act violation occurred on this ground. DISTRIBUTION OF WRITING TO PUBLIC The document containing the amendments proposed by Trustee Everett was distributed, for the ?rst time, to board members and staff during discussion of the agenda item. The document was not attached to the agenda or otherwise made available to the public until the day after the meeting. Trustee Everett read aloud her proposed amendments in open session, followed by public comments. Further discussion by the board and the vote followed. John Andersen, Board President May 25, 2018 Page 3 We are informed that prior to the commencement of open session, a reporter from the Acorn requested a copy of the proposed amendments from staff, but this request was denied. During public comments on the amendments, a member of the public stated, ?We have no idea what you are talking about, we cannot make a public comment based on these amendments. . .what is the Brown Act about if it?s not for us to have a say.? The document with the amendments was not made available to the reporter or, as indicated above, to the public, during the meeting. Government Code section 54957.5, subdivision states in part, ?writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records. ..and shall be made available upon request without delay.? Subdivision of the same section, states, in part, ?writings that are part of the public record under subdivision 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, or after the meeting if prepared by some other person.? The document containing Trustee Everett?s proposed amendments became a public record when she distributed it to a majority of the board. At least one member of the public, a reporter, had expressly requested a copy of the writing from a CVUSD a staff member. Because the document was created by a trustee and was distributed to the board during a public meeting, the Brown Act required it to be made available for public inspection at the meeting. The failure to make the document available to the public at the meeting was a violation of the Brown Act. The Legislature made plain its intent when passing the Brown Act: ?In enacting this chapter, the Legislature ?nds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people?s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.? (Gov. Code 54950.) To comply with the Brown Act in the future, unless otherwise excepted by law certain privileged material, etc.), if a writing is prepared by the agency or a member of its board relating to a matter subject to discussion or consideration at an open meeting and the writing is distributed to a majority of the board during the meeting, it must also be made available to the public at the meeting. The district attorney has the authority to enforce violations of the Brown Act. (Gov. Code, 54960, 54960.1, 54960.2.) Should the District Attorney?s Of?ce receive future complaints regarding compliance with this provision, we will evaluate whether legal John Andersen, Board President May 25, 2018 Page 4 action is appropriate. Should you have questions or concerns, I may be contacted at (805) 662-1 75 3. Very truly yours. til/div, THOMAS M. FRYE Deputy District Attorney cc: Sandee Everett, CVUSD Board of Education Vice President Betsy Connolly, CVUSD Board of Education Clerk Mike Dunn, CVUSD Board of Education Member Patricia Phelps, CVUSD Board of Education Member Mark W. McLaughlin, Superintendent