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By Jay Thorwaldson

About this blog: I was editor of the Palo Alto Weekly from June 2000 to January 2011, capping a more than 50-year career in journalism and writing since Los Gatos High School, where I was editor of the student newspaper and president of the speech...  (More)

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On Deadline: Citizen watchdogs dig out another 'confidentiality' secret -- but such things go w-a-a-y back

Uploaded: May 17, 2012
The practice of public administrators sharing "confidential" information with their elected bosses while keeping it from the public has surfaced, with the discovery of numerous incidents involving Palo Alto schools Superintendent Kevin Skelly and the Board of Education.

Such practices are nothing new, going back decades in local cities, school districts, counties and special districts -- the so-called "public agencies" that govern nearly all our day-to-day contacts with democracy.

It is a surprise that Skelly has been outed, so to speak, for sending regular confidential weekly memos to school board members, as he has presented a public persona of openness and transparency in handling school affairs since he was named superintendent in the spring of 2007. (See story on the memos here, with a link to a formal protest letter from Weekly Publisher Bill Johnson).

A take-home lesson here is that the state's Ralph M. Brown Act, the open-meeting law, extends well beyond meetings. It includes private communications between officials that are part of the decision-making process. It includes "serial" communications of any kind, even when members of an elected body don't meet in person.

There are explicit exceptions to open meetings for personnel matters, actual or potential lawsuits, labor negotiations, such as the "hiring, firing or bringing of charges" provision under the personnel exception. "Personnel matter" is not a blanket cover.

Proper notifications of closed sessions must be followed immediately by a public report on any definitive decisions made, although the definition of a decision is subject to stretching.

After being alerted by citizens Ken and Michele Dauber, Palo Alto parents of five children and founders of "We Can Do Better Palo Alto," the Weekly took up the broader issue of the memos between Skelly and board members. The Daubers filed a Public Records Act request and turned up a weekly memo and other documents. They in turn alerted the Weekly. The Weekly has since filed its own Public Records Act request.

The bigger question in this case, and historically, is why the elected officials allowed these privy communications to happen.

Why did no one on the board -- not one -- speak up and put a stop to them? In earlier cases, council members also allowed such things to occur.

Yet virtually all such officials are briefed on the Brown Act. It is virtually impossible for an outsider to know about the quality of such briefings, which often occur during "boardsmanship training" retreats for multiple districts.

One problem peculiar to school boards, including Palo Alto's, is that there seems to be an emphasis on creating a "leadership team" that includes both the board members and top administrators. This is less of a pattern in cities and counties, in my experience.

A leadership team's emphasis tends to erode the distinction between those elected to govern a district and the administrators hired to run it. It blurs the line between bosses and staff, especially when there is a strong administrator who is adept at furthering such a blending of responsibility.

Similar patterns can happen with cities, counties and special districts -- the latter especially are vulnerable because they are not followed as closely by today's local newspapers and are way below the radar of electronic news.

Historically, the City of Palo Alto had a strikingly similar circumstance in 2000. It was in the form of "Frank's Weekly Memo," after then-City Manager Frank Benest. As editor of the Weekly in mid-2000, I heard about a weekly memo Benest planned to send out. Then I learned Benest had been sending them to City Council members for several months.

I immediately requested a meeting with Benest, and we set up a short after-hours session that afternoon in his office. Staff Writer Jennifer Kavanaugh and I headed over to City Hall. On the way, she asked, "Do you think we'll get the memos?" I replied that we'd get the memos but the real question was whether Benest and I would have a relationship after. We did, actually.

The 15-minute meeting stretched to an hour and a half of sometimes head-to-head discussion. He finally shoved a pile of past memos over to us and we looked through them while he ducked out to another short meeting. They were essentially harmless announcements of awards to city staffers and upcoming city events or programs.

Benest at one point said we could file Public Records Act requests and he would have 10 days to respond for each memo. I said that would be OK if that was the kind of relationship he wanted to have with the Weekly, and I wondered if this was the issue on which he wanted to throw himself in front of the bus. It wasn't. Ultimately the memos were put on the city's website.

The Weekly sued the city twice during my tenure as editor, with Johnson spearheading the suits. One, filed in January 2003 and ultimately settled, was over secret e-mails sent between certain council members and staff members. Oddly, the city attorney's office ruled that making the e-mails or staff responses public would violate the Brown Act.

The settlement was that all e-mail communications between council members and staff would be placed immediately on the city's website -- breaking new ground statewide.

The other suit, in the fall of 2005, was to obtain a $300,000 consultant's report relating to lax supervision in the city's large Utilities Department that resulted in discipline or dismissal of 19 employees and the forcing out of the department director. The court ruled cleanly for the Weekly.

My first personal brush with open meetings was when I was an intern with the Los Gatos Times-Saratoga Observer newspaper (Los Gatos was my home town). I was assigned to cover a Town Council meeting. I arrived early, and the manager invited me into his office -- where the whole council had crowded in. They went over the entire agenda, indicating likely actions they would take in public. I believe they felt if a reporter was present it was OK.

The paper made an issue of it, effectively ending the practice. But it made me acutely aware of the issues.

The Brown Act provides a strong model for good government, but it has great weaknesses. It does not apply to the state Legislature, and it suffers from weak enforcement -- which leaves it up to the elected officials, public watchdogs and the media to enforce it by exposure and public opinion.

Former Weekly Editor Jay Thorwaldson can be e-mailed at jthorwaldson@paweekly.com with a copy to jaythor@well.com.
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Posted by svatoid, a resident of ,
on May 17, 2012 at 10:39 am

Nice job of tooting your own horn and patting yourself on the back, Jay.
Now if you would only write an On Deadline expose about the censorship on the Town Square Forum.

Posted by svatoid, a resident of ,
on May 17, 2012 at 10:44 am

One other point. You say:

"The bigger question in this case, and historically, is why the elected officials allowed these privy communications to happen."

Did you ask the city council members, during the Benest memo issue, why they allowed these privy communications to happen?
Oh, wait, never mind. I forgot those were city council members that were involved (i.e. sacred ground that i snot be questioned or disturbed)

Posted by Wayne Martin, a resident of ,
on May 17, 2012 at 6:54 pm

The lack of transparency of the various local government agencies is difficult to ascertain?because there doesn?t seem to be anything like a permanent watchdog/auditor in place at the PAUSD, or the City-- tasked with actually insuring that all each agency?s activities are legal, and in compliance with all open-access laws.

There are no really good sources of City/PAUSD history to which the public has access. The City does have a document retention schedule which seems to suggest that some documents are kept on file for up to eight years, with other less than that. There does not seem to have been any attempt on the part of the City to digitize its records, allowing them to be kept for much longer periods of time. Neither has there been any attempt to index them in any meaningful way.

The City Library does happen to have the microfilm of the old Palo Alto Times, which was, a pretty good little paper, in its time. Unfortunately, there is no index, and anyone wanting to learn about Palo Alto history must sit in front of a microfilm reader, and read the films, one frame at a time.

Using those microfilms as a source, all sorts of interesting information about the trials and tribulations of Palo Alto government can be gleaned. For instance, way back in the late 1950s, Stanford and the City were involved in running a hospital together. Oversight of the hospital involved the City Council, and people from Stanford. Over time, the finances became murky, and the meetings between the City and Stanford started being held behind closed doors. Eventually, the Grand Jury got involved. At some point, Stanford decided that it would run the hospital alone?terminating its arrangement with the City and its building the current hospital. The public was never afforded access to the problem that confronted this hospital at the time.

Since the City is over a hundred years old, it?s anyone?s guess how many scandals, or near scandals, have swirled around the PAUSD and the City during that time. Sadly, no one is keeping count. The Weekly?s archive is a good place to start, but it is not well indexed, and only goes back to the mid-1990s. The City seems to whitewash its web-site, so there is no evidence on it that anything has ever gone wrong, other than any mention to scandals that have occurred that resulted in Council?s reporting closed door action to the public. There are microfilmed City Council meeting in the library, but they require a lot of ?face time? with the microfilm reader to retrieve any information.

Both the City and the PAUSD hide behind attorney/client privilege?keeping most disturbing information out of the public?s view. The City has for quite some time now used ?work product? from consultants as another reason to hide information from the public. Anything that might be unflattering, or possible illegal behavior on the part of employees, is very likely to disappear into the hands of a consultant?whose reports are going to be considered ?secret?. The sand-bagging of the City Manager?s home during the Flood of ?98 (June Fleming), although investigated, was not reported to the public. Over time, this has become just one more City scandal that has mostly been forgotten.

Same with Utility contracts. Non-disclosures agreements between the City, and vendors, even potential vendors, has resulted in what can only be characterized as losses?to be paid for by higher utility rates. The Enron lawsuit settlement falls into that category.

The City Auditors always seem to tip-to around issues that would seem to call for deeper investigations. The last Auditor came up with the fact that the City was paying for a telephone that was not installed on City property. The Auditor did not reveal the number, or the name of the person that was enjoying this taxpayer benefit. A Request For Information for this information received a response that the Auditor didn?t know who the person was. There has never been a follow up on this case?which no doubt cost the taxpayers thousands of dollars.

There was the matter of the secret donors for the Mandarin Immersion program feasibility study. Numerous attempts to obtain this information resulted in claims that the School District could accept money from anyone/groups, for various purposes, and not have to reveal the source of the money. None of the local papers, including the Weekly, seemed very concerned at the time.

Of course, the Utility Scandal was the big one. That scandal has never been properly reported to the public?even though the Weekly?s lawsuit did open the door a bit. What?s a little odd about this OpEd is that the Weekly has written many editorials about the investigative reporting of some of the other local papers?expressing attitudes between disdain, and condemnation.

This particular matter, of some ?confidential? memos?seems to be creating a bit of a firestorm, where one really doesn?t exist, or at least not yet. There are no allegations of fiscal impropriety, moral turpitude, or other illegal behavior/acts on the part of anyone involved with the memos. So, why would the Weekly be so outraged? Is this the sort of build up before the inevitable editorial claiming that there is another ?elephant in the room?? Would it be all that unexpected to see the Weekly claiming that ?changes need to be made? at the school district?pointing to a string of articles that have yet to produce anything close to a ?smoking gun?--as the basis for their claims demanding ?change??

So far, there just doesn?t seem to be anything worth getting outraged over?even if the Brown Act has been ?bent? somewhat.

Moving on--there are flaws in the Brown Act. Unfortunately, there doesn?t seem to be much interest in identifying these flaws, and getting them corrected with the appropriate legislation. Given how complicated government programs have become, how difficult expenditure reporting can be, and how complicated the political process has become--it?s difficult to father how one or two ?tweaks? can remedy any simple flaws in this law.

Lastly, it would help us all if government at every level would commit to e-government, and begin placing all public records on-line, fully indexed, and searchable. While this could take some time, it would not be that difficult to begin today digitizing, indexing and storing the current business documents on-line so that we can all see what is going on at 250 Hamilton, and 25 Churchill.

Posted by really?, a resident of ,
on May 17, 2012 at 7:40 pm

There seems to be a conspiracy going on here. Let's take them all down. That'll solve all the problems in our city and schools. You go Palo Alto Weekly. Hope you're here to put everything back together the way you want it. At this point, I can't imagine why anyone would run for public office or want to teach in our school district since we all know better than the professionals. According to all the recent articles and postings, it seems that everyone who works in a public school really hates kids and are trying to do the worst by them. Imagine.

Posted by Random parent, a resident of ,
on May 17, 2012 at 9:46 pm

@ really

It seems to me that the goal of a certain group of people in Palo Alto is to hand out, to all students graduating from Palo Alto schools, a diploma that automatically qualifies its recipients for UC admission, while ensuring that the students go through completely stress free schooling, with no homework (who knows, maybe no tests either) while giving only As to everyone. Never mind that this diploma won't be worth anything any more, which won't be lost on universities.

The destruction of our schools is underway...

Posted by another random parent, a resident of ,
on May 18, 2012 at 10:04 am

So I'm assuming after scaring off all the other candidates for school board, I assume the WCDBPA/Weekly will run their own slate of candidates unopposed...is this the end game here?

Posted by Wynn Hausser, a resident of ,
on May 18, 2012 at 10:56 am

Great column, Jay. As always, your historical perspective is invaluable.

I find it fascinating that, in response to serious issues with a lack of transparency that threaten our democratic processes, @really, @random and @another random choose to shoot the messenger and by implication indicate that they are fine with secret government decision-making that undermines the credibility and reputation of the school district.

The endgame here is accountability.

Posted by Another Gunn parent, a resident of ,
on May 18, 2012 at 1:46 pm

Thank you, Mr. Hauser. I have noticed a lot of pretty hysterical "shoot the messenger" on these boards. I don't get the idea that if we hold public officials to the idea that they should do the public's business in public, nobody will want to run. All of the school board members are adults who wanted this job.
They screwed this up. Based on what I have seen, they do think of themselves as part of a team, and Skelly is the coach. They don't really understand what they should be doing, which is representing the public, not just rubber-stamping Skelly's private decisions. We can remind them of that, or we can pretend that it's not true so that we don't hurt their feelings. I think everyone here is a grownup enough so that we can have an honest talk about what is going wrong and how it can work better in the future. I bet we'll even get people to want to be on the school board after we do it.

Posted by svatoid, a resident of ,
on May 18, 2012 at 2:29 pm

The article that Jay referes to states:

"Stating that Palo Alto school board members may have violated California's open-meeting law, the Palo Alto Weekly has asked the board to cease the practice of receiving weekly confidential memos from Superintendent Kevin Skelly."

However Jay's self-congatulatory on-deadline rant makes it sound like that (a violation California's open-meeting law) has proven to be the case. Perhaps Jay should wait until all the facts are in before he starts to sing his own praises on the pages of his advertising circular.

That is what a real journalist would do.

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